Reset A A Font size: Print

Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Salome Anaya TOVAR, Defendant and Appellant.

No. F014822.

Decided: April 08, 1992

Andrew Cappelli, Oakland, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Asst. Atty. Gen., J. Robert Jibson and Roger E. Venturi, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.



Salome Anaya Tovar was accused in count I with the attempted first degree murder of one Esteban Rivera with three separate enhancements and in count II with assault with a firearm upon Esteban Rivera with three separate enhancements.

On September 25, 1990, a jury trial commenced.   Appellant personally admitted the special allegation under counts I and II as defined under Penal Code section 12022.1.2  Several prosecution witnesses testified that appellant fired several shots at Esteban Rivera in the parking lot of the Kahlil market in Tulare County and then drove away.   After three days of trial, the jury convicted appellant of attempted second degree murder and assault with a deadly weapon, and found the allegations of personal use of a firearm and infliction of great bodily injury to be true.

On October 25, 1990, the court denied probation and imposed the upper term of nine years with a consecutive two-year term for the enhancement under section 12022.1.   The court imposed and then stayed the terms for the assault with a firearm conviction and the three enhancements found to be true under count II of the information.   Appellant was sentenced to a total prison term of 11 years with credits of 205 days.   He filed a timely notice of appeal.



The question of first impression before this court is whether section 12022.1 should apply to persons granted a prejudgment release by a federal court.   The section provides:

“(a) For the purposes of this section only:

“(1) ‘Primary offense’ means 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final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked.

“(2) ‘Secondary offense’ means a felony offense alleged to have been committed while the person is released form custody for a primary offense.

“(b) Any person arrested for a secondary offense which 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 in state prison which shall be served consecutive to any other term imposed by the court.

“(c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense and shall be proved as provided by law.   The enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing for the secondary offense.

“(d) Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense.   The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment.   If the person is acquitted of the primary offense the stay shall be permanent.

“(e) If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be consecutive to the primary sentence.

“(f) If the person is convicted of a felony for the primary offense, is granted probation for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be enhanced as provided in subdivision (b).

“(g) If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony.   Upon retrial and reconviction, the enhancement shall be reimposed.   If the person is no longer in custody for the secondary offense upon reconviction of the primary offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody.”

In the instant case, appellant, by his own admission, was released on his own recognizance by order of a federal court when the secondary offense here involved was committed.   Appellant states this strategic admission was for the purpose of avoiding the possibility that the jury would learn of the charges pending against him in federal court.

At the time of sentencing, appellant had not yet been convicted of the primary offense pending in federal court.   Appellant argued that section 12022.1 is only applicable where the primary offense is one committed under California law and, thus, the section was inapplicable to him.

The sentencing court rejected the argument and imposed the enhancement as to count I, but stayed the enhancement as to count II, pursuant to section 654.

Respondent argues it is immaterial whether the primary offense is a federal one and states that “any felony offense from any jurisdiction suffices.”  “All that is required by the statutory language [is] that a person be released from felony custody prior to the judgment becoming final and commit another felony offense.   If that occurs, then the enhancement is to be charged in the information or indictment.”   Respondent admits that confusion arises in the “portion [of section 12022.1] that attempts to set forth the procedures that should be followed after the secondary offense and the enhancement have been proven and the judgment in the secondary offense is to be imposed.  (See subdivisions (d) through (g) of § 12022.1.)   Respondent would resolve this “confusion” by suggesting that the mandatory procedural provisions which must be applied by a California court are not applicable for “all the potential situations that arise.”  “Respondent submits that the language of subdivision (d) was intended to prescribe the acceptable procedure, not an exclusive procedure, and to indicate that it is mandatory for the stay to be lifted in all such cases.”  (Original emphasis.)

Respondent relies on People v. Davis (1985) 166 Cal.App.3d 760, 212 Cal.Rptr. 673, which respondent claims is analogous to the instant case.   In Davis, the defendant was convicted of escape by force or violence in violation of section 4532, subdivision (b), after escaping from a county jail with 12 other prisoners while in county custody on federal felony charges of escape.   The trial court sentenced defendant to the upper term of six years with enhancements for prior felony convictions.   Division Two of the First District Court of Appeal affirmed, holding that the legislative intent of the pertinent statute was to punish all escapes from lawful confinement regardless of the jurisdiction in which felony charges are pending.   The defendant could not avoid the plain language of the escape statute on the ground that it applied only to prisoners held on California felony charges.   The court stated:

“In determining the meaning of ‘felony,’ as used in section 4532(b) [sic ], our primary concern is to ascertain the Legislature's intent so as to effectuate the law's purpose.  (People v. Shirokow (1980) 26 Cal.3d 301, 306–307 [162 Cal.Rptr. 30, 605 P.2d 859]․)  ‘We must read a statute in light of both the objective it seeks to achieve and the evil it seeks to avert.’   (People v. Alday (1973) 10 Cal.3d 392, 395 [110 Cal.Rptr. 617, 515 P.2d 1169]․)  We must also construe the statute ‘in a reasonable and commonsense manner consistent with [its] apparent purpose and the legislative intent underlying [it]—one practical, rather than technical, and one promoting a wise policy rather than mischief or absurdity.’  (Herbert Hawkins Realtors, Inc. v. Milheiser (1983) 140 Cal.App.3d 334, 338 [189 Cal.Rptr. 450]․)”  (People v. Davis, supra, 166 Cal.App.3d 760, 763, 212 Cal.Rptr. 673.)

In our view, People v. Davis and its construction of section 4532, subdivision (b), is clearly distinguishable from the instant case and the applicability of section 12022.1 to our facts.   There is little doubt that the underlying legislative intent of section 12022.1 is to discourage persons who are waiting punishment for one felony offense from committing a new offense in this state and to punish those who fail in that regard.   However, as respondent points out, we must interpret the legislation in a practical manner which promotes a wise policy rather than mischief or absurdity.   (Ibid.)

Considerations of comity between federal and state governments and their judicial systems require a wise policy against any unnecessary interference with the jurisdiction of the respective courts.  (See, e.g., Sandquist v. Pitchess (C.D.Cal.1971) 332 F.Supp. 171.)   It is well settled that a federal court will not interfere with state court proceedings absent a strong showing that a party's constitutional rights are at stake.  (People v. Tolefree (1972) 458 F.2d 494;  Veen v. Davis (C.D.Cal.1971) 326 F.Supp. 116.)   This applies to both criminal and civil proceedings.  (Olinger v. City of Palm Springs (C.D.Cal.1975) 386 F.Supp. 1376, vacated and remanded 538 F.2d 338, on remand 425 F.Supp. 174.)   Thus, a wise policy seeks to avoid needless conflict between the two judicial systems and it seems clear that section 12022.1 if applied to a primary offense pending in the federal court system would require our court and/or the federal district court to impose and/or lift stays and correct another judicial system's abstracts of judgment, resulting in an inappropriate conflict of functions.  (See, e.g., Capital Service, Inc. v. Labor Board (1954) 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887.)   This is a result which should be avoided.

Respondent concedes as much when arguing that even though these provisions “prescribe those mandatory actions that must be applied by a California court ․ [n]either of them purport to define the applicable procedures for all the potential situations that arise.”   Following respondent's argument to its logical conclusion, it seems respondent would have us rewrite the procedural portions of section 12022.1 so that our interpretation would apply to a primary offense pending in the federal court.   Rewriting statutes is not the function of this court and is clearly a task for the Legislature.

Furthermore, as appellant points out in his reply brief, federal courts have their own mechanism for enhancing the sentences of defendants who have committed crimes while on federal release.   Title 18, former section 3147, of the United States Code provided:

“A person convicted of an offense committed while released under this chapter shall be sentenced in addition to the sentence prescribed for the offense to—

“(1) a term of imprisonment of not less than two years and not more than ten years if the offense is a felony;  or

“(2) a term of imprisonment of not less than ninety days and not more than one year if the offense is a misdemeanor.

“A term of imprisonment imposed pursuant to this section shall be consecutive to any other sentence of imprisonment.”

Applying respondent's logic to the facts of the instant case, pursuant to section 12022.1 appellant's basic sentence would be enhanced two years in state prison, said enhancement to be implemented upon his subsequent conviction of the pending federal charges.   In addition, his federal sentence would be enhanced from two to ten years pursuant to the apparently mandatory provisions of Title 18, former section 3147, of the United States Code.   Respondent has not provided, nor have we found, any discussion, analysis or other indication in the legislative history of section 12022.1, or elsewhere, that such a result, i.e., overlapping of state and federal judicial systems, was ever discussed, let alone contemplated.

Thus, we conclude that the provisions of section 12022.1 do not apply to persons granted a prejudgment release by a federal court.   The trial court erred in this regard and the consecutive two-year enhancement of appellant's sentence under section 12022.1 must be stricken.



The judgment of conviction is affirmed.   The two-year sentence enhancement pursuant to section 12022.1 is stricken in accordance with the views expressed in part I of this opinion.   The trial court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the appropriate authorities.


1.   As this appeal solely asserts sentencing issues, a further rendition of the facts is unnecessary.

2.   All statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.


Copied to clipboard