Opinion
C096740
01-22-2024
The PEOPLE, Plaintiff and Respondent, v. Sarah Rachel HURT, Defendant and Appellant.
Denise M. Rudasill, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and Sally Espinoza, Deputy Attorney General, for Plaintiff and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Patrick Marlette, Judge. Affirmed as modified. (Super. Ct. No. 21FE013829)
Denise M. Rudasill, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and Sally Espinoza, Deputy Attorney General, for Plaintiff and Respondent.
HULL, Acting P. J.
Defendant Sarah Rachel Hurt committed various weapon and drug related offenses at three separate times. She committed two offenses while she was on bail for earlier offenses that had originally been charged as one case. She contends on appeal that the trial court erred by (1) consolidating trial on all the offenses; (2) admitting evidence of uncharged acts, with these first two errors resulting in cumulative error; and (3) imposing two on-bail enhancements under Penal Code section 12022.1. Except to strike one of the enhancements, we affirm the judgment.
Facts and History of the Proceedings
1. August 12, 2021 (Counts 1-3)
Sacramento County Sheriffs Deputies Vadem Ivanov and Shea Lukes answered a call from a home on Zephyr Hills Way late on August 12, 2021. The caller said defendant was there, and she was not supposed to be there. Upon arriving, the deputies found codefendant Michael Torrez inside a vehicle parked in the residence’s driveway. Torrez appeared nervous and was looking around. Deputy Ivanov directed him to get out of the car, and he detained him.
Deputy Lukes contacted defendant inside the residence. Defendant said Torrez was her friend and had given her a ride to the house. Lukes then learned from Deputy Ivanov by radio that he had found a firearm inside the vehicle. Lukes escorted defendant outside and placed her in the back of the patrol vehicle.
Deputy Ivanov found a backpack on the car’s passenger side floorboard. Inside the backpack, he found a loaded 9 mm handgun with a 17-round high-capacity magazine The gun was a "ghost gun"; it had no identifying markings. Ivanov also found inside the backpack ammunition rounds that had been fashioned into a necklace, 84.08 grams of methamphetamine, and $1,400 in cash. The backpack also contained women’s jewelry, women’s deodorant, and feminine hygiene products.
Inside the car, the deputies found two digital scales and a notebook. They found in the car’s trunk a clear glass pipe commonly used to smoke methamphetamine. It had a white substance inside. Defendant’s cell phone contained a picture of a firearm sitting on a chair at an unknown location. Torrez’s cell phone contained photos of assault rifles, a handgun, and methamphetamine. The photos were taken at a Motel 6 in West Sacramento. Deputy Ivanov found a Motel 6 key in Torrez’s pocket and $600 in cash.
In the back of the patrol car, defendant and Torrez engaged in the following conversation:
"Hurt: You really put that shit in my backpack?
"Torrez: Shut up, shut up. Listen I didn’t mean to. Okay?
"Hurt: No come on Bizzy.
"Torrez: Listen to me. Look at me.
"Hurt: No fuck you bro,
[¶ …¶]
"Torrez: Look at me come here. We’re going to jail together either way not, so it’s a wrap.
"Hurt: Yeah and I didn’t even do nothing. The fuck I just came to get some sneakers.
"Torrez: Mama what are you – you had dope on you.
"Hurt: [Unintelligible] get some fucking sneakers.
"Torrez: Did you have drugs in you? On you? ,
"Hurt: Yeah,
"Torrez; Okay. See?
[¶…¶]
"Torrez: Just come here. If you don’t come here I’m going to start stomping you out right now.
"Hurt: No bruh, I’ve never been done this dirty in my entire life. Then try stomping me out in a cop car.
"Torrez: The fuck are you talking about.
"Hurt: Keep threatening me. Keep threatening me.
"Torrez: You need to stop your fucking lies man. Stop with your bullshit.
"Hurt; You just told me you were going to stomp me out. You literally just said that,
"Torrez: Are you fucking serious right now?
"Hurt: Oh yeah yeah?. You’re going to fucking try and kick me?
"Torrez: Shut . up. Stop it. Quit being a weirdo."
2. Uncharged acts evidence
That same night, August 12, 2021, and into the early morning hours of August 13, law enforcement officers searched room 258 at a Motel 6 in West Sacramento. The room was registered to defendant, Torrez, and one other person. In the room, officers found a firearm and a magazine, and a black bag on the air, conditioning unit that contained a white crystalline substance that appeared to be methamphetamine. A toiletry bag in the bathroom contained two digital scales and weights for calibrating them. Another toiletry bag contained a cell phone. A small plastic cup on the sink counter contained a white crystalline substance that looked like methamphetamine. A black backpack on the floor contained several Ziploc bags of various sizes, loose pills, two additional cell phones, and a notebook containing telephone numbers. A black duffel bag on the bed contained women’s clothing, beauty- supplies, and mail addressed to an address on Zephyr Hills Way in Sacramento. Inside a nightstand, officers found a black bag containing two round, blue pills and two bongs or pipes commonly used to smoke methamphetamine. Officers also found inside the room another cell phone, a laptop, a computer, a tablet, and a wallet with Torrez’s identification inside.
8. September 15, 2021 (Count 4)
On September 15, 2021, Officer David Anderson conducted a home visit at defendant’s residence on Zephyr Hills Way. Defendant was in her room with a friend. Searching the room, Officer Anderson found a backpack containing two bags of methamphetamine,, a glass smoking pipe commonly used to smoke methamphetamine, and a Department of Motor Vehicles identification card bearing defendant’s name. The methamphetamine weighed 86.29 grams. Defendant’s cellphone contained a picture of methamphetamine that appeared to be the same methamphetamine Officer Anderson found in the backpack.
4. December 8, 2021 (Count 5)
On December 8, 2021, Sacramento County Deputy Sheriffs Paul Hoffman and Spencer Wright went to a Red-Roof Inn to contact Cameron Ray, a person of interest. Police had observed eliminai activity happening at the hotel, including assaults, prostitution, and narcoties-related crimes. The door to room 121 opened, and Ray and defendant walked out of the room and went in separate directions.
Deputy Hoffman detained defendant and searched the backpack she was carrying. He found inside a black thermos that contained a plastic baggie holding 48.47 grams of methamphetamine. Defendant admitted the substance was methamphetamine. Hoffman found on defendant’s person a cell phone, bank cards, and cash totaling $1,829. Deputy Wright also found a digital scale inside the backpack.
Car keys found on defendant’s person operated a gray Hyundai that was parked in front of room 121. The car had a release of liability form in defendant’s name. Inside the car, Deputy Wright found a plastic container that held small baggies.
5. Expert testimony
Daniel Garbutt, an investigator with the Sacramento County District Attorney’s Office, testified as an expert witness on the sale and use of methamphetamine and the extraction of digital images from cell phones. The average dose of methamphetamine is between a tenth and a quarter of a gram. Drug dealers often carry firearms for protection. They use small digital scales to measure the quantity of drug they are selling. Sales usually transpire in cash, and a dealer’s holding a large sum of money would indicate the dealer had prior sales or was trying to obtain more product.
Examining defendant’s cell phone, Garbutt found messages and images indicative of drug sales. These included photos of drugs, a gun, and money.
When presented with hypothetical mirroring the three charged incidents involving defendant, Garbutt opined that in each incident, the drugs were possessed for the purpose of sale.
6. Verdict and sentence
A jury found defendant guilty of unlawful possession of methamphetamine while armed with a loaded firearm (count 3); being a felon in possession of a firearm (count 1); and three counts of possession of a controlled substance for sale (counts 2, 4, and 5). (Health & Saf. Code, § 11370.1, subd. (a); Pen. Code, § 29800, subd. (a)(1); Health & Saf. Code, § 11878 [statutory section citations that follow are found in the Penal Code unless otherwise stated].) The trial court found true two on-bail enhancements under section 12022.1 for the commission of counts 4 and 5 while released on bail prior to judgment on counts 1, 2, and 3.
The trial court sentenced defendant to an aggregate prison term of nine years, four months: the upper term of four years on count 3; eight months each (one-third the midterm) on counts 4 and 5; and two years each for the on-bail enhancements. The court imposed the upper term of three years each on counts 2 and 3, and it stayed execution of those terms under section 654.
Discussion
See footnote *, ante.
IV
On-Bail Enhancements
[1] Under section 12022.1, subdivision (b), a trial court sentencing on a felony must impose a consecutive two-year enhancement if the defendant committed the felony while she was on bail for another felony. The statute states: "Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by- the court." (§ 12022.1, subd. (b).)
For purposes of the statute, a "primary offense" is "a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final[.]" (§ 12022.1, subd. (a)(1).) A "secondary offense" is "a felony offense alleged to have been committed while the person is released from custody for a primary offense." (§ 12022.1, subd. (a)(2).)
The statute is easily applied where the primary offense and the secondary offense each consist of only one felony. The trial court imposes one on-bail enhancement. Questions arise over how many enhancements must be imposed when there is more than one primary or secondary "offense." Such is the case here.
Originally, the prosecution charged defendant with only counts 1 and 2, felon in possession of a firearm and possession of a controlled substance for sale, respectively, both committed on August 12, 2021. Defendant posted bail and was released from custody. While on bail, defendant was arrested twice for possession of a controlled substance for sale, once in September and again in December 2021. At the preliminary hearing on the original complaint, the trial court held defendant over on counts 1 and 2, and it also held her over on a new charge, possession of a controlled substance while armed on August 12, 2021. The prosecution subsequently filed an amended consolidated information that alleged counts 1 and 2, the possession while armed charge as count 3, and the new possession for sale charges as counts 4 and 5. The amended information also alleged that defendant committed counts 4 and 5 while she was released from custody on counts 1, 2, and 3.
The trial court imposed two consecutive on-bail enhancements on defendant, one on count 4 and one on count 5.
Defendant contends the court erred and that we must strike one of her on-bail enhancements because only one enhancement may lawfully be imposed for a single primary case no matter how many secondary offenses she committed while on bail. In this instance, that case consisted of counts 1, 2, and 3.
The Attorney General, on the other hand, contends the trial court did not err because defendant committed three primary offenses, counts 1, 2, and 3. Section 12022.1 by its terms allows one enhancement for each primary "offense," and thus the trial court did not err by imposing two enhancements.
Neither the parties nor we have found a reported case directly on point. But the extant authorities indicate that defendant has the better argument. Although the statute’s language, subjecting a defendant to an enhancement if she was arrested for "a secondary offense" while released from custody on "a primary offense," could be interpreted to subject a defendant to an enhancement for each primary and secondary offense charged, the Courts of Appeal have not read the statute so broadly.
[2–4] This is because under section 1170.1, the determinate sentencing law, there are two kinds of enhancements: those that go to the nature of the offender and those that go to the nature of the offense. (People v. Coronado (1995) 12 Cal.4th 145, 156, 48 Cal.Rptr.2d 77, 906 P.2d 1232; People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th at p. 401, 27 Cal.Rptr.2d 646, 867 P.2d 757.) At sentencing, an enhancement arising from the circumstances of the crime enhances the several counts, but an enhancement arising from the nature of the offender is added only once as a step in arriving at the aggregate sentence. (Tassell, at p. 90, 201 Cal.Rptr. 567, 679 P.2d 1.) The on-bail enhancement, like enhancements for prior convictions, goes to the nature of the offender and thus can be added only once. (Ibid.)
As a result, courts have uniformly held that where there is only one primary offense, only one on-bail enhancement may be imposed no matter how many secondary offenses the defendant is sentenced on in a case. (People v. Augbome (2002) 104 Cal.App.4th 362, 377, 128 Cal.Rptr.2d 258; People v. McNeely (1994) 28 Cal.App.4th 739, 743, 33 Cal.Rptr.2d 582; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1262, 263 Cal.Rptr. 183; People v. Nguyen (1988) 204 Cal.App.3d 181,196, 251 Cal. Rptr. 40, disapproved on another ground in Ballard v. Estelle (9th Cir. 1991) 937 , F.2d 453, 458, fn. 6.)
Two reported cases have discussed applying the on-bail enhancement when the defendant committed a secondary offense or offenses while on bail for more than one primary offense. In People v. Warinner (1988) 200 Cal.App.3d 1352, 247 Cal.Rptr. 197 and People v. Mackabee, supra, 214 Cal.App.3d 1250, 263 Cal.Rptr. 183, the courts recognized that the enhancement went to the nature of the person and could be imposed only once. But to meet section 12022.1’s terms and further its purpose of punishing and discouraging recidivism, the courts interpreted "a primary offense" to refer to a "case" or a "release from custody" rather than each offense charged in the primary case, and they imposed one enhancement for each case or release. Although neither case expressly addressed the factual situation before us, their reasoning is persuasive.
In Warinner, the defendant was charged with burglary and other felonies in each, oftwo separate cases. While on bail, he committed another burglary. (Warinner, supra, 200 Cal.App.3d. at p. 1354, 247 Cal.Rptr. 1970 He pleaded guilty to the felonies in the first case and was found guilty of the felonies in the second case and the felony in the third case. He was sentenced on all three cases at the same time. The trial court imposed two on-bail enhancements as part of his aggregate term. (Ibid.)
The Court of Appeal affirmed the trial court’s judgment. By its language, section 12022.1 permitted the two enhancements imposed. The statute mandates an enhancement where a defendant is released from custody "on a primary offense" and commits another felony. (Warinner, supra, 200 Cal.App.3d at pp. 1355-1356, 247 Cal. Rptr. 197.) The court stated, "Although the Legislature did not expressly prescribe the application of section 12022.1 for ‘each’ primary offense for which a defendant is on bail, a fair reading of the statute compels that result." (Id. at p. 1355, 247 Cal. Rptr. 197.)
But the Court of Appeal equated "primary offense" with "case," and it imposed the enhancement based on the defendant’s release from custody on a case that had a primary offense. (Warinner, supra, 200 Cal.App.3d at p. 1356, 247 Cal.Rptr. 197.) Conforming to Tassell’s ruling that an on-bail enhancement could be added only once in determining the aggregate sentence, the Warinner court concluded that the defendant’s sentence could "be enhanced for each pending case from which he was released from custody …. " (Warinner, supra, 200 Cal.App.3d at p. 1356, 247 Cal. Rptr. 197.) Although the enhancement went to the nature of the defendant, he could be subject to an on-bail enhancement for each case because a person released from custody on more than one pending case who commits an offense, like a person with two or more prior prison terms, "is more culpable than a person who commits an offense while being out on bail on only one case. As culpability increases, additional punishment follows. The purpose of section 12022.1 is to penalize recidivists. This is accomplished by increasing punishment for one who commits an additional offense while released from custody on earlier offenses." (Warinner, supra, 200 Cal.App.3d at p. 1356, 247 Cal.Rptr. 197.)
Although the defendant in Warinner committed more than one felony in each of the two prior cases, there is no indication that the Attorney General argued in Warinner that the enhancement applies for each primary felony offense in each case, as the Attorney General contends here. Once the Warriner court found a primary offense in each case, it ended its analysis without considering whether the other felonies in each case for which the defendant was on bail were also primary offenses.
A panel of this court followed both Tassell and Warinner in Mackabee. In that case, the defendant committed four separate felonies over a three-month period. The last three were each committed while he was released from custody on earlier offenses. (Mackabee, supra, 214 Cal. App.3d at p. 1253, 268 Cal.Rptr. 183.) The trial court imposed six on-bail enhancements. It imposed the enhancement on each secondary offense for each previous primary offense. (Id. at p. 1259, 263 Cal. Rptr. 183.) This court struck four of the enhancements. It struck the enhancement imposed on the fourth felony that was based on the third felony because defendant had not been wrested on the third felony when he committed the fourth. (Mackabee, supra, 214 Cal.App.8d at pp. 1259-1260, 263 Cal. Rptr. 188.) Of relevance here, the court struck three of the remaining five enhancements, holding that only one enhancement could be imposed for each of his releases from custody on the defendant’s primary offenses. (Id. at p. 1260, 263 Cal.Rptr. 188.)
The Mackabee court agreed with Tassell and other authorities that due to the enhancement being based on the nature of the offender, a single primary offense could not support more than one on-bail enhancement. (Mackabee, supra, 214 Cal. App.8d at pp. 1261-1262, 263 Cal.Rptr. 183.) But the court also agreed with Warinner. Warriner would allow two enhancements in the case, one for each of the two primary offenses. (Id., supra, 200 Cal. App.3d at pp. 1356-1357, 247 Cal.Rptr. 197.) The court stated: "In People v. Nguyen, [supra,] 204 Cal.App.3d 181, 251 Cal. Rptr. 40 [], the Fourth District, following Tassell, concluded a single primary offense would not support two section 12022.1 enhancements—one for each of two secondary offenses. We agree with Nguyen. We also agree with Warinner that, just as section 1170.1 does not bar multiple enhancements for separate prior prison terms (§ 667.5), it does not bar multiple enhancements based on separate releases on primary offenses?’ (Mackabee, supra, 214 Cal.App.3d at p. 1262, 263 Cal.Rptr. 183, italics added, fn. omitted.)
The Attorney General contends that the holding in Mackabee required the trial court here to impose an on-bail enhancement based on each of the primary offenses defendant committed. In a footnote, however, the Mackabee court stated it was not addressing the situation before us: "We have no occasion in this case to determine whether multiple enhancements can be imposed where a defendant is simultaneously released on two primary offenses. Here, defendant’s releases on two primary offenses were at different times." (Mackabee, supra, 214 Cal.App.3d at p. 1262, fn. 6, 268 Cal.Rptr. 183.)
[5–7] Nonetheless, the reasoning in Mackabee and Warinner leads us to conclude that defendant in this case is subject to only one on-bail enhancement, not two. Because the enhancement goes to the nature of the person, only one such enhancement may be imposed in a case. Although counts 1 and 2 under the terms of the statute could each qualify as primary offenses, because they were charged as one case from which defendant was released from custody and committed counts 4 and 5, the enhancement may be imposed only once for that ease. Otherwise, the enhancement, would become one based on the nature or number of offenses committed in one case, something which the determinate sentencing law does not allow. As we recognized in Mackabee, "We must consider section 1170.1 because, ‘Statutes must be construed with reference to the system of laws of which they are a part. [Citation.]’ (People v. Hernandez (1988) 46 Cal.8d 194, 201, 249 Cal.Rptr. 850, 757 P.2d 1013[].) Moreover, in construing penal statutes, we must give a criminal defendant the benefit of any realistic doubt. (People v. Anderson (1987) 43 Cal.3d 1104, 1145, 240 Cal.Rptr. 585, 742 P.2d 1306.)" (Mackabee, supra, 214 Cal.App.3d at p. 1261, 263 Cal.Rptr. 183.)
Because defendant committed her secondary offenses when she was released from bail on only one case, she is subject to only one on-bail enhancement under section 12022.1. We will therefore strike one of the two on-bail enhancements.
Disposition
The on-bail enhancement imposed under section 12202.1 on count 5 is stricken. In all other respects, the judgment is affirmed. The trial court is directed to prepare and certify an amended abstract of judgment consistent with this opinion and to deliver it to the Department of Corrections and Rehabilitation.
We concur:
DUARTE, J.
Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.