VAN SCOTT v. PEOPLE (1985)

This petition by the defendant challenges denial of his motion to set aside (Pen.Code, § 995) ¹ an enhancement allegation of violation of section 12022.1.   That section provides for enhancement of the sentence of any person convicted of a felony offense which was committed while that person was released from custody on bail or on his or her own recognizance pending trial on an earlier felony offense.

The issue raised here is whether the trial court erred in failing to follow Panos v. Superior Court (1984) 156 Cal.App.3d 626, 203 Cal.Rptr. 115, an opinion holding that at the preliminary examination on the later felony offense the prosecution must present proof that conviction has been obtained on the earlier felony offense.   We uphold the ruling of the trial court.   We conclude that the requirement of proof at the preliminary examination of an earlier conviction applies only where trial on the earlier offense is held before preliminary examination on the later offense.

On December 5, 1984, petitioner was charged by complaint with commission of a felony narcotics violation (Health & Saf.Code, § 11352), and with having committed that crime while released from custody on his own recognizance pending trial on an earlier felony offense.  (§ 12022.1.)   At the preliminary examination on the later charge, held December 20, 1984, the People presented evidence that the offense charged was committed while petitioner was released from custody on his own recognizance in connection with an earlier felony offense.   However, they presented no evidence that petitioner had been convicted of the earlier felony offense.   The prosecutor conceded that there had not been a conviction on the earlier offense.   The magistrate held petitioner to answer on the narcotics offense, but issued no holding order on the enhancement allegation.

The district attorney then filed an information alleging both the narcotics violation and an enhancement under section 12022.1.

Petitioner moved to set aside the enhancement allegation, citing Panos v. Superior Court, supra, 156 Cal.App.3d 626, 203 Cal.Rptr. 115.   After hearing, the court denied the motion, expressly stating that it was not following Panos.   This petition followed.

Section 12022.1 provides:  “Any person convicted of a felony offense which was committed while that person was released from custody on bail or on his or her own recognizance pending trial on an earlier felony offense shall, upon conviction of the later felony offense, be subject to a penalty enhancement as follows:

“(a) If the person is convicted of a felony for the earlier offense, is sentenced to state prison for the earlier offense, and is convicted of a felony for the later offense, any state prison sentence for the later offense shall be consecutive to the earlier sentence.   In addition, the sentence for the later offense shall be enhanced by an additional term of two years.

“(b) If the person is convicted of a felony for the earlier offense, is granted probation for the earlier offense, and is convicted of a felony for the later offense, any state prison sentence for the later offense shall be enhanced by an additional term of two years.

“(c) If the earlier 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 later offense upon reconviction of the earlier offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody.  (Added by Stats.1982, c. 1551, p. 6050, § 2.)”

In Panos v. Superior Court, supra, 156 Cal.App.3d 626, 203 Cal.Rptr. 115, the defendant was charged with committing a robbery in Sacramento while released from custody on bail pending trial in Los Angeles for an earlier robbery.   At the preliminary examination, the People offered evidence that the defendant committed the charged robbery while released from custody on bail, but offered no proof that the defendant had ever been convicted of the Los Angeles offense.   The defendant contended that conviction of the earlier offense was a necessary element of the enhancement and that failure to prove a conviction required dismissal of the enhancement allegation.   The Panos court agreed.

Panos concentrated its attention upon the question of whether conviction of the earlier offense was an element of the enhancement charge itself or was merely a factor in sentencing the defendant on the enhancement.   The court noted that in enacting section 12022.1, the bill originally introduced in the Legislature did not require conviction of the earlier offense and that a later version explicitly stated that the section would “ ‘not apply where the person is not convicted of the original felony offense for which he or she was released on bail or on his or her own recognizance.’ ”  Panos found that a still later amendment “deleted this language and added subdivisions (a), (b), and (c) which have the same effect as the deleted language [quoted above].”  (Id., at p. 629, 203 Cal.Rptr. 115.)

Panos based its conclusion upon analysis by the staff of the Senate Committee on Judiciary, which indicated that the Legislature was well aware of the fact that the enhancement could not be used if trial on the earlier offense was delayed until after trial on the later offense.   The analysis stated:  “ ‘If the crime committed while on bail takes place in another jurisdiction (e.g., another county), trial on the second charge can be, and often is, held first.   In such a situation the enhancement proposed by this bill could not be applied, since a fact finder could not determine, as this bill would require, that the defendant had been out on bail on a felony charge which later resulted in a conviction.’ ”  (Ibid., emphasis added.)

Having determined that conviction of the earlier offense was an element of the enhancement, Panos concluded that the penalty enhancement should be dismissed if proof of the conviction of the earlier offense was not presented at the preliminary examination.   Whereas the staff analysis had acknowledged that an enhancement could not be applied if trial on the later offense was held before trial on the earlier offense, the Panos court went beyond this analysis and in effect held that an enhancement could not be applied if even the preliminary examination on the later offense was held before the trial on the earlier offense.

The Attorney General concedes that Panos is directly on point, but he argues that Panos was wrongly decided.   He contends that the prosecution should be permitted to file a section 12022.1 allegation in an information where the preliminary examination shows only the commission of the later offense while a person is released from custody on bail or on his or her own recognizance pending trial, and then at trial to prove the conviction on the earlier offense.   He asserts that if Panos is permitted to stand, section 12022.1 will be rendered practically useless because it could be applied only in the rare case when conviction on the earlier offense takes place before preliminary examination on the later offense.

The key to whether the prosecution must prove the earlier conviction at the preliminary examination or may wait until trial lies in interpretation and application of People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 191 Cal.Rptr. 1, 661 P.2d 1081.   In Mendella, the court held that a section 995 motion “may properly be used to challenge the sufficiency of evidence to support an enhancement allegation.”  (Id., at p. 763, 191 Cal.Rptr. 1, 661 P.2d 1081.)

Before Mendella, the prevailing rule was that only an “offense” and not an “enhancement” could be reached by a motion to dismiss under section 995.  (People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 148 Cal.Rptr. 740.)  Mendella found that the Grilli rule lacked a sound legal or practical basis.  Mendella concluded that review of enhancement allegations by a section 995 motion was required to “operate as a judicial check on the exercise of prosecutorial discretion” and to avoid the negative effects on the defendant of overcharged enhancements.  (People v. Superior Court (Mendella), supra, 33 Cal.3d, at pp. 759–761, 191 Cal.Rptr. 1, 661 P.2d 1081.)

We conclude that the purpose of section 995 is fully served when the section is used to prevent the prosecution from charging the defendant with past acts and failing to present evidence of them at the preliminary examination.   No significant purpose is served by requiring dismissal for failure of proof at the preliminary examination of the results of court proceedings which have not yet taken place, but which results form an element of the enhancement allegation.   In the latter case, the prosecution has not withheld evidence or threatened the defendant with a demonstrably weak charge;  lack of proof at the preliminary examination is caused by the external circumstance that the proceedings have not taken place.

 We read Mendella to permit a defendant to seek to dismiss an enhancement allegation for failure to present evidence of past acts forming a basis for the allegation, but not to compel dismissal of allegations partially proved but dependent upon court proceedings which may take place between the preliminary examination and termination of trial.²  Thus, where an enhancement under section 12022.1 is challenged, the motion should be granted if trial on the earlier offense has taken place before the preliminary examination and the prosecution has failed to offer proof that a conviction took place on the earlier offense.   However, if trial has not taken place on the earlier offense, the motion should be denied unless there is a failure of proof on another element.³

Our interpretation retains the vitality the Legislature intended for section 12022.1.   A defendant has the right to have a preliminary examination held within 10 days of the date of arraignment or entering a plea, whichever occurs later, unless the prosecution establishes good cause for a continuance beyond the 10-court-day period.  (§ 859b.)   Thus, by insisting upon a speedy preliminary examination, under Panos, a defendant could almost always defeat an allegation under section 12022.1.   Only in the rare case where the trial on the earlier offense took place during that 10-day period or where the prosecution obtained a continuance for good cause, would a holding order under section 12022.1 result.   We do not believe that Mendella should be interpreted to eviscerate section 12022.1.

The alternative writ is discharged and the petition for a peremptory writ is denied.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Included in our interpretation of Mendella would be a special circumstance allegation that the defendant “has in this proceeding been convicted of more than one offense of murder in the first or second degree.”  (§ 190.2, subd. (a)(3).)   The prosecutor in that situation can never prove at the preliminary examination on murder that the defendant has been convicted of another in the same proceeding.   Either the conviction was in an earlier proceeding (Shamburger v. Superior Court (1984) 160 Cal.App.3d 484, 486, 207 Cal.Rptr. 586) or it has not yet taken place.   The prosecutor can only show probable cause on the other murder and the possibility of a conviction.

3.   We need not consider the Attorney General's argument, rejected in Panos v. Superior Court, supra, 156 Cal.App.3d 626, 629–630, 203 Cal.Rptr. 115, that a conviction on the earlier offense need not even be proved at trial on the later offense.   The issue presented to us concerns only proof at the preliminary examination.

MERRILL, Associate Justice.

WHITE, P.J., and BARRY–DEAL, J., concur.