Enhancements, generally
Category > Enhancements, generally
Updated 2/26/2024Defendant was entitled to retroactive application of the law ending the prior drug conviction enhancements where he was still on mandatory supervision when the law became effective.Defendant was sentenced to a six-year period of mandatory supervision on an eight year split sentence following his no contest plea to a drug charge and an admission to sentence enhancement allegations for two prior drug related convictions. He later moved to strike the sentence enhancements arguing he was entitled to the retroactive application of Health and Safety Code section 11370.2 that would have eliminated his prior conviction enhancements. Because his case had not been concluded before the new provision became effective (mandatory supervision was ongoing) he was entitled to the benefit of the new law.id: 26993
Updated 2/23/2024Defendant’s appeal waiver did not prevent her from seeking retroactive application of SB 180, and the matter was returned to allow the parties to negotiate a new deal.Defendant pled guilty to a drug offense along with an enhancement for a prior drug offense, agreed to an eight year prison term and waived her right to appeal. Before sentencing, the Legislature passed SB 180, which eliminated enhancements for most drug-related prior convictions. She then moved to invalidate the enhancements imposed in her case. The appeal waiver did not prevent her from seeking retroactive application of SB 180. The plea agreement is now unenforceable and the parties can go back and enter into a new agreement or go to trial.id: 26950
The trial court erred by imposing firearm enhancements under section 12022.53(e) that were not pleaded in connection with the relevant counts.The trial court erred by imposing five 25 years-to-life enhancements in connection with counts as to which the enhancements had not been alleged. Because the defendant did not receive adequate notice that the prosecution was seeking to impose the additional punishment on those counts, the enhancement findings were reversed.id: 26935
Defendant did not waive the right to appeal based on a change in the law of which he was unaware at the time of the plea.Defendant pled guilty to transporting a controlled substance, and admitted having a prior conviction for possessing cocaine base for sale. The latter triggered imposition of a three year enhancement under Health and Safety Code section 11370.2, subd.(a). Defendant also waived the right to appeal “any sentence stipulated herein.” The court imposed the 11 year stipulated term. Thereafter, the Governor signed SB 180, which amended section 11370, and the provision was determined to be retroactive to cases not yet final on appeal. The defendant’s waiver of the right to appeal the stipulated sentence did not apply to the sentencing error based on the future change in the law.id: 26052
Attempted burglary is not a violent felony under section 667.5, subd.(c)(21).Defendant is charged with attempted first degree burglary, and it was alleged under Penal Code section 667.5, subd. (c)(21) that a person not an accomplice was present in the residence during the commission of the attempted burglary. However, the allegation had to be stricken where neither perpetrator gained entry into the residence. id: 25930
Defendant was entitled to the retroactive application of SB 180 where the court in his case had suspended the imposition of sentence when it granted probation (rather than suspending execution of the sentence). Defendant pled guilty to several drug-related charges in three cases. Years later, the Legislature enacted SB 180, which amended the sentencing enhancements included in Health and Safety Code section 11370.2. That bill limits the scope of section 11370.2 enhancements to prior convictions of selling drugs to children - which did not apply to defendant. The question was whether SB 180 should have been applied retroactively to defendant’s case. It applies to all cases that were not final on appeal as of its 2018 effective date. He would not have been entitled to retroactive application if the court had imposed sentence in 2014 and suspended execution. However, the court here suspended imposition of sentence when it granted probation, and defendant timely appealed the 2016 sentence that included the enhancements. The judgment was not final and defendant was entitled to the retroactive application of SB 180.id: 25824
Evidence did not support the aggravated kidnapping enhancement where defendant ordered the rape victim to move from one room in a private residence to another. Evidence was insufficient to support the kidnapping enhancement findings because it failed to show defendant moved the victim a substantial distance and in a manner that substantially increased the risk of harm. After sodomizing the victim in one room in the apartment he ordered her to move less than 30 feet to another room. No evidence indicated the movement increased the risk of harm. id: 24969
The trial court erred by imposing an enhancement under section 273.5, subd. (f)(1) that had not been pled in the information.Defendant was charged with, and convicted of, two counts of corporal injury to a cohabitant in violation of Penal Code section 273.5, subd.(a). That provision carries a sentence range of two, three, or four years. The information also included a special allegation under section 273.5, subd. (h)(1) that provided for an additional 15 days on each count. The sentencing court (at the prosecution’s request) erred by imposing a longer term under section 273.5, subd. (f)(1), an enhancement (or an alternative sentencing provision) that was never pled despite the prosecutor’s claim that there was proof to support it. The sentence under that provision violated defendant’s due process rights.id: 25278
Although the sexual assault victim was transported to two places only one section 667.8 enhancement was proper.Penal Code section 667.8 provides for a three-year enhancement if a kidnapping was committed for the purpose of effecting a sexual assault. Appellant argued the court violated the prohibitions against multiple punishment in section 654 by imposing three year enhancements on both count 2 (sodomy at the second location at Coyote Lake) and count 4 (sodomy in the motel room). The Court's statements established it believed appellant harbored a single criminal objective. The court mentioned that appellant had a plan in mind, that he had a purpose to fully execute his plan, and that he <i>resumed</i> his sexually assaultive behavior. Only a single enhancement was proper.id: 9916
Court erred in allowing the truth of the priors to be decided by the jury where defendant admitted his prior child molest convictions.Where an alleged prior felony conviction is an element of the pending offense, Article 1, section 28 subdivision (f) of the California Constitution requires that the earlier conviction be proved to the trier of fact in open court. If only a factor to be considered at sentencing the defendant can admit its truth and prevent the jury from hearing about it when the charge is read or at any other time during trial. A prior conviction alleged under Penal Code section 667.51 (repeated child molest violations) is an allegation for purposes of punishment and is not an element of the pending charge. Therefore, the court erred in allowing the truth of the priors to be decided by the jury.id: 9938
Defendant's child molest conviction in Nebraska qualified as a serious felony under section 667, subd.(a), but because the elements were different, did not qualify him as a habitual sexual offender under section 667.71.Defendant's prior child molest conviction in Nebraska served as the basis of a serious felony enhancement under Penal Code section 667, subd.(a), as well as a habitual sexual offender finding under Penal Code section 667.71, subds.(c)(4) and (d). Defendant argued reversal of the enhancements was required because the Nebraska convictions did not contain all of the elements of section 288, specifically it did not require a specific intent to arouse. Since the Nebraska statute did not contain an element of section 288, subd.(a), it is not a qualifying prior under the habitual sexual offender statute. To be a serious felony, however, it need not contain the same elements - it need only be lewd act on a person under 14. Violation of the Nebraska statute is a lewd act under section 1192.7. Moreover, the record of conviction showed the victim was four years-old. The offense therefore qualified as a serious felony under section 667, subd.(a).id: 17922
The trial court erred in staying rather than striking the Penal Code section 667.9,subd.(b) enhancement.At sentencing, the trial court stayed imposition of the two year
enhancement under Penal Code section 667.9 based on the age of the robbery victim. Defendant argued the court should have struck rather than stayed the enhancement. The AG argued the
matter should be remanded to allow the trial court to strike or impose the enhancement. However, the judgment was modified to strike the enhancement.id: 19848
Evidence did not support the enhancement for selling drugs near a school which applies to offenses committed in public areas near a school, not inside a private residence.The evidence did not support the jury's true finding on the Health and Safety Code section 11353.6 allegation that the possession for sale offense took place within 1,000 feet of an
elementary school because the record showed the offense took place in the garage of a private residence that was not accessible to the public.id: 19156
Provision describing higher term for second degree "drive-by" murder is an enhancement rather than a substantive offense but the elements must still be presented to the jury for a finding.Defendant argued he should not have been sentenced under the second degree drive-by murder statute (Penal Code section 190, subdivision (c) - 20 years to life if the killing was the result of a drive-by shooting) because that provision describes a substantive crime which was neither pleaded nor proven. However, section 190, subdivision (c) is not a substantive crime, but rather, an enhancement. Even as an enhancement, the elements should have been presented to the jury for a finding. The error does not require reversal where defendant did not challenge the trial court's finding that the killing was the result of a drive-by shooting.id: 15425
Drive-by shooting enhancement applies only to the shooter and not an aider and abettor such as the driver.The five year sentence enhancement pursuant to Penal Code section 12022.55 for discharging a firearm from a motor vehicle applies only to the shooter and not to an aider and abettor like appellant, the driver, who did not personally discharge a firearm.id: 13940
The imposition of two enhancements on a single offense is prohibited.Following appellant's mayhem conviction, the court added a consecutive enhancement for the infliction of great bodily injury pursuant to Penal Code section 12022.7, and then added a second consecutive enhancement for firearm use pursuant to section 12022.5. However, the imposition of two enhancements on the single offense is prohibited by section 1170.1, subdivision(e).id: 13930
Court erred in imposing both habitual criminal enhancements and section 667 subdivision (a) enhancements.Defendant was determined to be a habitual criminal and sentenced to consecutive indeterminate life terms under Penal Code section 667.7 as to counts II and III. The court erred in further imposing a five year determinate sentence for each of the two prior serious felony convictions under Penal Code section 667, subdivision (a). Subdivision (b) provides in part that this section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. Here the life sentence provided for in section 667.7 constitutes an other provision of law which results in a longer term of imprisonment and prevails over the other section 667 enhancement.id: 13886
Enhancement for a prior conviction of section 289 did not apply where defendant was convicted of lewd conduct and the probation report showed a digital penetration.Penal Code section 667.10, subd. (a) provides for a two year enhancement for a person who has a prior conviction of the offense set forth in section 289 (penetration of a genital or anal opening with a foreign object). The People argued the probation report for defendant's 1974 lewd conduct (section 288) conviction showed defendant stuck his finger into her vagina. They claim this conduct constitutes an offense set forth in section 289 and the enhancement applies. However, the enhancement is inapplicable because the ordinary meaning of a person who has a prior conviction of the offense set forth in section 289 is a person with a prior conviction of violating that section.id: 13899
Under the enhancement for dealing drugs near a school the jury must determine whether a private driveway is a public area.The trial court erred in not instructing the jury it had to determine whether the private driveway in which the drug sale took place was a public area for purposes of Health and Safety Code section 11353.6. A public area for purposes of the provision includes those portions of private property which are readily accessible to the public. Defendant was entitled to a jury determination as to whether the driveway was a public area. However, the failure to instruct the jury to make the determination was harmless where defense counsel conceded the issue in closing argument and stated the issue only comes into play if you find my client guilty.id: 13937
The trial court may not impose an upper term on an enhancement based on facts relating to the crime if those factors do not relate to the enhancement.Defendant argued the trial court's use of threats of great bodily injury and viciousness" as aggravating factors in imposing the upper term on the firearm use enhancement was improper because these factors did not relate specifically to his use of a firearm. The trial court may not impose the upper term on an enhancement based on facts relating to the crime if those factors do not relate to the enhancement. In the instant case the aggravating factors related to the enhancement. Defendant kicked one victim, while holding the gun on the occupants of the car. The threat conveyed by the kick was meant to back up the threat conveyed by the gun. Similarly, the viciousness the court found related directly to the firearm use enhancement.id: 13933
Defendant, whose conviction was not final at the time the law changed, was entitled to the lesser punishment provided in the amended version of section 12022.6, subdivision (b).In 1992, the Legislature amended Penal Code section 12022.6, subdivision (a) and (b), effective June 30, 1992, to increase the amount of the property loss required for a one-year enhancement from $25,000 to $50,000 and to increase the loss required for a two-year enhancement from $100,000 to $150,000. A person who stole $124,000 before the 1992 amendment of section 12022.6, but whose conviction was not final at the time the amendment became operative, is entitled to the benefit of the amendment and, therefore, eligible only for a one-year enhancement.id: 13891
The trial court has the authority to dismiss an age enhancement in the interest of justice pursuant to section 1385.The trial court may strike a Penal Code section 667.9 age enhancement notwithstanding that section 667.9 is neither mentioned in section 1170.1, subdivision (d) and (h), nor specifically excepted from the striking authority of section 1385 since there is no clear legislative intent to abrogate the trial court's authority to strike such an enhancement.id: 13932
Hit and run enhancement did not apply were there was no showing defendants failure to stop proximately caused permanent and serious injury.Vehicle Code section 20001, subdivision (b)(2), prescribes enhanced penalties for a conviction of hit and run in violation of Vehicle Code section 20001, subdivision (a), when that violation results in death or permanent serious injury. However the enhancement does not apply unless the defendants failure to comply with subdivision (a) proximately causes permanent, serious injury to another person.id: 16233
Multiple great bodily injury enhancements under different statutes for the same offense were improper.The trial court erred in failing to stay punishment on the three-year great bodily injury enhancement under Penal Code section 12022.7, subd.(a) where punishment had already been imposed on the enhancement for intending to inflict great bodily injury or death by discharging a firearm under section 12022.55. The Legislature did not intend to permit multiple punishments under different statutes for the same great bodily injury inflicted in the commission of the same offense.id: 16235
Elder abuse enhancement under section 368, subd.(b)(3)(A) does not apply to murder or manslaughter.Defendants killed a 69 year-old acquaintance. One defendant was convicted of murder and the other manslaughter. Each defendant received a five year sentence enhancement for elder abuse pursuant to Penal Code section 368, subd.(b)(3)(A). However, murder and manslaughter are not included in the list of offenses set forth in section 368, subd.(b)(1). Therefore, the enhancements did not apply and were stricken.id: 16572
Section 186.11, awarding seized assets to victims for restitution did not apply where the prosecution did not respond or appear and therefore, the trial court should have awarded defendant's seized assets to trial counsel who had a valid though unperfected security interest for unpaid fees.Penal Code section 186.11 defines an aggravated white collar crime enhancement. It allows the court, before trial, to enjoin the defendant from disposing of assets, and after trial, to levy on those assets to pay victim restitution. In the present case, defendant had given his trial counsel a security interest in the seized assets for unpaid attorney fees. Section 186.11 did not apply since the prosecution never filed a motion for a preliminary injunction in that case. Thus, the attorney who had a valid though unperfected security interest had priority over the victims who were mere unsecured creditors. The court did not address the issue of who would have priority if section 186.11 did apply.id: 18293
Defendant's prior conviction of attempted possession for sale did not qualify for the section 11370.2, subd.(a) enhancement.Defendant was convicted of the sale of cocaine base. His sentenced was enhanced by three years pursuant to Health and Safety Code section 11370.2, subd.(a) based on a prior-drug related conviction. However, the enhancement did not apply because defendant was previously convicted of attempted possession for sale which is not an included offense in section 11370.2, subd.(a).id: 18579
A sentence enhancement imposed under Vehicle Code section 23182 may not be based upon the same count for which a separate felony drunk driving sentence is imposed.Appellant caused injury to three victims in one instance of drunk driving. Where a sentence is imposed on both a vehicular manslaughter count and a drunk driving count, the court may not enhance each sentence with the same victim named in the other count as there would be no additional victims from the one instance of drunk driving.id: 10550
A defendant may use a section 995 motion to challenge the sufficiency of the evidence to support enhancements.The authorities before and since Proposition 115 recognize that a defendant has the right to bring a Penal Code section 995 motion for the purpose of challenging the sufficiency of the evidence to support enhancement allegations. There was no evidence presented at the preliminary hearing to support the gang enhancement, and the trial court erred in denying the section 995 motion on that basis.id: 14979
Supreme Court requires any fact that increases the sentence beyond the statutory maximum to be submitted to the jury.In a 5-4 opinion written by Justice Stevens, the Supreme Court held that the Constitution requires that, except for the fact of a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The court said it did not matter whether the additional fact was labeled an element of the offense or a mere "sentencing factor." Applying this rule to the facts of the case, the court reversed the defendant's New Jersey sentence, which had been increased based on a judge's finding at sentencing by a preponderance of evidence that defendant's crime was racially motivated. Justice O'Connor dissented, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer. Justice Breyer also filed a separate dissenting opinion joined by the Chief Justice.id: 15052
Appellant was entitled to the benefit of an amendment to an enhancement statute where the statutory change became effective while the case was on appeal.A three-year enhancement was applied to appellant's convictions under Health and Safety Code section 11353.6 (drug trafficking near schoolyards). The enhancement statute was amended during the pendency of the appeal to add a requirement that school be in session or that minors be using the facility when the offense occurs. Appellant was entitled to the benefit of the amendment, and the Legislature did not preclude its effect to pending cases. The enhancement finding was reversed but the People were entitled to an opportunity, on remand, to prove up the new element.id: 9301
Updated 3/19/2024SB 81 provides for the dismissal of sentence enhancements in certain circumstances, but section 236.1(c)(2) was an alternative sentencing scheme, not an enhancement.Defendant argued the trial court erred in refusing to dismiss his elevated sentence of 15 years-to-life under Penal Code section 236.1(c)(2) dealing with human trafficking of a minor with aggravating circumstances. He argued SB 81 categorically compels sentencing courts to dismiss enhancements in certain circumstances. However, SB 81 only applies to sentence enhancements. Section 236.1(c)(2) provides an alternative punishment to the underlying offense, and is not an enhancement.id: 28225
Updated 3/4/2024A court may refuse to dismiss an enhancement under section 1385(c)(2) even absent concern for public safety. Defendant argued the sentencing court erred, on remand, by failing to properly apply SB 81, which amended Penal Code section 1385 to specify mitigating factors a court must consider when deciding whether to strike an enhancement. He claimed the matter needed to be remanded again because the court denied his request to dismiss the enhancement without making a finding that dismissing it would endanger society. However, a court retains discretion under section 1385(c)(2) to choose not to dismiss an enhancement in furtherance of justice for reasons other than public safety.id: 28117
Updated 3/4/2024Under the amended version of section 1385, trial courts need not dismiss enhancements for sentences exceeding 20 years where the court finds dismissal would endanger public safety.Defendant argued the trial court erred in failing to strike a five-year serious felony enhancement at resentencing. He claimed that Penal Code section 1385, as recently amended, requires dismissal of multiple enhancements and enhancements that may result in sentences exceeding 20 years without regard to safety. However, the legislative history shows the Legislature understood that the mitigating circumstances for multiple enhancements and sentences over 20 years do not require dismissal of enhancements where dismissal would endanger public safety.id: 28123
Updated 3/4/2024Defendant argued the phrase “shall be dismissed” in Penal Code section 1385(c)(2)(B) is mandatory and requires dismissal of all but a single enhancement.However, section 1385(c)(2(B) as added by SB 81 does not mandate reversal of all but a single enhancement.id: 28136
Updated 3/4/2024The trial court is not required to dismiss enhancements that increase a sentence to exceed 20 years even absent a finding of dangerousness.Defendant argued that under Penal Code section 1385(c)(2)(C), the trial court was required to dismiss the white collar enhancement for loss greater than $500,000, because it resulted in a sentence greater than 20 years and the trial court did not find the dismissal would endanger public safety. However, the plain text of the statute provides the purpose is to grant the court discretion to dismiss enhancements.id: 28146
Updated 3/4/2024Penal Code section 1385(c), added by SB 81, does not apply to the Three Strikes law.SB 81 added Penal Code section 1385(c)(1) to require the dismissal of enhancements in certain circumstances. However, the term “enhancement” does not include prior strike allegations.id: 28175
Updated 2/4/2024The amendment to section 1385 does not require dismissal of an enhancement that would lead to a sentence of greater than 20 years where dismissal would endanger public safety.Defendant argues that, as recently amended, Penal Code section 1385, in stating the court “shall dismiss” sentence enhancements requires that the court must do so in certain situations including where the enhancement could result in a sentence exceeding 20 years. However, section 1385(c)(2)(C) is discretionary and does not require a dismissal where the dismissal would endanger public safety.id: 27637
Updated 2/4/2024SB 81 does not establish a presumption favoring the dismissal of an enhancement rebuttable only by a finding of dangerousness.In SB 81, the Legislature modified Penal Code section 1385 to more fully explain the appropriate factors a court could use in dismissing a charge or allegation in the interest of justice. The provision suggests the decision to dismiss an enhancement should “weigh greatly” in favor of dismissal absent a finding that defendant is dangerous. However, contrary to defendant’s claim, the great weight contemplated by section 1385(c)(2) does not amount to a presumption in favor of dismissal that is rebuttable only by a danger to public safety.id: 27627
Updated 2/4/2024Section 1385(c)(2)(B) does not obligate trial courts to dismiss multiple enhancements in every case.Following SB 81, Penal Code section 1385 now provides that the presence of one of nine mitigating factors weighs greatly in favor of dismissing the enhancement unless the court finds dismissing the enhancement could endanger public safety. The mitigating circumstance that exists when there are multiple enhancements in a single case and specifies that “all enhancements beyond a single enhancement shall be dismissed” does not require the court to dismiss all but one of the enhancements in every case with multiple enhancements. id: 27650
Updated 2/4/2024Section 1385’s mandate to afford great weight to mitigating circumstances creates a rebuttable presumption that obligates a court to dismiss the enhancement.Following SB 81, Penal Code section 1385 now requires that trial courts “greatly weigh” a mitigating circumstance in deciding whether to dismiss an enhancement. The mandate to afford “great weight” to mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless the court finds that dismissal of that enhancement–with the resulting shorter sentence–would endanger public safety.id: 27651
Updated 2/3/2024SB 81 does not require dismissal of enhancements but provides the trial court discretion to dismiss.Defendant argued that pursuant to SB 81, as described in Penal Code section 1385(c)(2)(B) and (C), a trial court must dismiss all but one sentencing enhancement and any enhancement that could result in a sentence of more than 20 years, and therefore the court erred in imposing sentence for two five-year prior felony conviction enhancements. However, the use of the word “shall” in the legislation was explained by the author of the bill, and the new law simply provides the trial court with discretion to dismiss the enhancements.id: 27635
Updated 2/3/2024SB 81 amending section 1385 applies only to sentence enhancements and not the three strike priors.The plain language of the amendments to Penal Code section 1385 made by SB 81 shows the provision applies only to sentence enhancements and the three strikes law is not an enhancement.id: 27698
Updated 2/3/2024SB 81 does not give the trial court authority to strike a factual finding that establishes ineligibility for probation.Defendant argued that Penal Code section 1385, as amended by Senate Bill 81, allows the court on remand to strike the jury finding under section 1203.066 that establishes an ineligibility for probation However, the provision applies only to sentence enhancements and does not allow the court to strike a section 1203.066 finding or to grant probation.id: 27715
Updated 2/1/2024The trial court erred in refusing to consider the DA's new policy when it denied the motion to strike the firearm enhancements.The Los Angeles District Attorney implemented a new policy calling for the dismissal under Penal Code section 1385 of certain enhancements. The trial court here denied the prosecution’s motion to dismiss the firearm enhancements, and refused to consider the new policy. The trial court misunderstood its discretion under section 1385 when it refused to consider the policy, as a trial court when deciding the issue must consider case-specific factors as well as general sentencing objectives. The matter was returned to the trial court to conduct a new hearing to reconsider the prosecutor's motion.id: 28007
A split sentence under Penal Code section 1170(h)(5) becomes final for retroactivity purposes 60 days after it is imposed. An unappealed split sentence is final for purposes of retroactivity 60 days after it is imposed. Because defendant did not appeal from his 2013 or 2015 split sentences, they have been final for years. As a result, defendant was not entitled to relief under SB 180, which limited the reach of Health and Safety Code section 11370.2 sentence enhancements that were attached to the earlier sentences.id: 25938
The trial court did not err by imposing the “in concert” enhancement in defendant’s attempted robbery case. Penal Code section 213, subd.(a)(1)(A) establishes an increased sentencing range for first degree robbery when committed inside an inhabited dwelling with two or more other people. Defendant argued the enhancement only applies to completed robberies. However the in-concert allegation also applies to attempted first degree robbery and the trial court did not err by imposing it in defendant’s case.id: 25052
The occupied burglary enhancement applies if there is a person other than an accomplice present at any time before the perpetrator’s final departure from the residence.First degree burglary where a nonaccomplice is present is a violent felony within the meaning of Penal Code section 667.5, subd.c. Defendants argued there was insufficient evidence to support the occupied burglary enhancement because the nonaccomplice was not in the residence at the time the defendants entered it, and the burglary was complete upon entry. However, the nonaccomplice was in the residence before the defendants finished the burglary and the evidence therefore supported the enhancement.id: 25046
The trial court erred by striking the white collar crime enhancement, and then imposing a split sentence.Defendants pled guilty to various offenses involving a scheme to defraud real estate investors. The trial court struck the Penal Code section 186.11 enhancement and imposed a split sentence where part of the term was to be served in custody and the remainder under community supervision. The sentence was unauthorized because a white collar enhancement is a disqualifying factor under the Realignment Act of 2011. The court lacked discretion to strike the enhancement under section 1385, and thus could not impose a split sentence.id: 25416
Defendant had notice of the personal firearm discharge allegation given the pleadings and the evidence produced at the preliminary hearing and at trial. The jury found true an allegation that defendant personally discharged a firearm in violation of Penal Code section 12022.53, subd.(c). Defendant argued the court must strike the finding because the allegation wasn’t pled in the information. However, defendant had adequate notice of the allegation given the pleadings, the preliminary hearing and the evidence adduced at trial suggesting defendant was the only person who would have personally discharged a firearm.id: 25396
Section 1170.18 does not provide for retroactive redesignation, dismissal or striking of final pre-Prop 47 sentence enhancements based on priors that were reduced to misdemeanors under Prop 47. Defendant moved to dismiss a one year prison prior enhancement imposed at his 2013 sentencing. He argued that because, after his sentencing, he obtained a Prop 47 order reducing his 2004 conviction on which the prison prior enhancement was based from a felony to a misdemeanor, the trial court should have stricken or dismissed the enhancement. However, Penal Code section 1170.18 doesn’t provide for retroactive redesignation, dismissal, or striking of final pre-Prop 47 sentence enhancements based on prior convictions that are subsequently reduced from felonies to misdemeanors under section 1170.18.id: 24526
The trial court properly imposed both the crime against elderly and GBI enhancements.Penal Code section 667.9, subd.(a) provides an enhancement for a crime committed against a person older than 65. The text of the provision says that it “shall” be imposed in addition to other enhancements. The trial court did not err by imposing that enhancement along with the GBI enhancement.id: 24227
Prior drug sale conviction enhancement applies even where the transportation of the drug in the present case was for personal use.Defendant was convicted of transporting methamphetamine. He argued the trial court erred by imposing an additional 3 year enhancement under Health and Safety Code section 11370.2 because the transportation for which he was convicted was based on transportation for personal use. However, the enhancement applies regardless of whether the transportation of a controlled substance was for personal use.id: 23201
The trial court erred by staying the imposition of mandatory enhancements.The trial court sentenced defendant to three years for the attempted voluntary manslaughter conviction, 10 years for the gang enhancement and four years for the firearm use enhancement. It then orally stayed imposition of the great bodily injury enhancement. However, it had no legal authority to stay that term as its imposition is mandatory. The matter was remanded to allow the court to strike it under Penal Code section 1385. The court also erred by staying imposition of the gang enhancement of the codefendant, but Penal Code section 186.22, subd.(g) allows the court to strike the enhancement. On remand, the court must impose or strike that term.id: 23110
Because defendant received two indeterminate terms, the court had to impose both prior drug conviction enhancements but the court had discretion under section 1385 to strike either or both.Defendant was convicted of two drug offenses and received indeterminate terms for each because of his prior strike convictions. He also admitted two prior drug conviction enhancements under Health and Safety Code section 11370.2. Because he received two indeterminate terms, the enhancements had to be imposed on both counts. However, the trial court retained authority under Penal Code section 1385 to strike either or both of the enhancements.id: 23115
Enhancements for leaving the scene were properly stayed where defendant was convicted of the substantive offense of leaving the scene.Defendant was convicted of two counts of gross vehicular manslaughter. As to each count the court imposed an enhancement for leaving the scene of an accident. Because the sentence on count two was stayed under Penal Code section 654, the enhancement was also properly stayed. The enhancement on the remaining count was properly stayed because defendant was also convicted of the substantive crime of leaving the scene of an accident.id: 22891
Neither section 654 nor Ahmed applies to stay sentence enhancements imposed for offenses arising out of separate criminal acts. In People v. Ahmed (2011) 53 Cal.4th 156, the court found that Penal Code section 654 prohibits imposition of more than one enhancement for the same underlying criminal act. However, section 654 did not prohibit great bodily injury enhancements for defendant’s attempted murder and forcible oral copulation convictions which involved the same victim as these were separate criminal acts.id: 22904
Evidence supported the fleeing the scene enhancement where defendant drove into a wall, stopped, and then waked away.Defendant was found to have violated Vehicle Code section 20001, subd.(c), fleeing the scene after committing gross vehicle manslaughter while intoxicated. Contrary to defendant’s claim, the evidence supported the enhancement finding where she drove into a wall, stopped and then walked away.id: 22692
Pouring gasoline in a structure to fuel an arson constituted the use of a device designed to accelerate the fire for purposes of the section 451.1, subd.(a)(5) enhancement.Penal Code section 451.1, subd.(a)(5) provides an enhanced term where an arson is caused by a device designed to accelerate the fire. Pouring gasoline in a structure the day before the fire constituted the use of a device for purposes of the enhancement. id: 22670
The trial court did not err by imposing the full consecutive three-year enhancement for the admitted prior conviction under section 11370.2, subd.(a). Defendant was convicted of two felony sex offenses. He also admitted a prior narcotics conviction alleged as an enhancement pursuant to Health and Safety Code section 11370.2, subd.(a). He argued the trial court erred by sentencing him to a full three year sentence for the enhancement, and that the term should have been limited to one year under Penal Code section 1170.1, subd.(a). However, the prior conviction enhancement contained in section 11370.2, subd.(a) is not subject to the one-third. limit. The trial court did not err in imposing a full consecutive term for the prior conviction.id: 22789
Failure to stop at the scene of the accident was all that was required to prove the enhancement for fleeing the scene after vehicular manslaughter.Defendant argued that the trial court erred by failing to instruct the jury that the flight enhancement under former Vehicle Code section 20001, subd.(c), required the prosecution to prove that he left the scene after committing voluntary manslaughter with an intent to avoid arrest or detention. However, proof that he failed to immediately stop at the scene of the accident is all that was required.id: 22039
Penal Code section 654 did not preclude the imposition of separate and consecutive sentences for the GBI and weapon use enhancements. The trial court sentenced defendant to a 13 year term consisting of eight years for the mayhem conviction, four years for a great bodily injury enhancement and one year for the use of a deadly weapon. Defendant argued that Penal Code section 654 required the trial court to stay the one year term for the deadly weapon enhancement. However, the imposition of separate and consecutive sentences for the deadly weapon enhancement (Penal Code section 12022) and the GBI enhancement (section 12022.7) is mandated by the provisions of section 1170.1. Those enhancements may still be stricken under a proper application of section 1385.id: 22528
Penal Code section 1170.1 allows the imposition of both a firearm use and a GBI enhancement.Defendant was convicted of assault with a firearm along with two sentence enhancements - personal use of a firearm and personal infliction of great bodily injury. While the prohibition against multiple punishment for a single act set forth in Penal Code section 654 applies generally to sentence enhancements, section 1170.1 subds. (f) and (g), specifically permits the imposition of enhancements for both using a firearm and inflicting great bodily injury.id: 22531
Even though “status” enhancements, multiple section 11370.2 enhancements can be applied for the same priors if there are current multiple counts as to which different subdivisions of section 11370.2 apply.The information alleged the same three drug-related prior convictions as enhancements to counts two and three pursuant to Health and Safety Code section 11352, subd.(c), and as enhancements to counts four and five. Under section 11370.2 enhancements are “status” enhancements which can only be imposed once as part of the aggregate sentence. However, because of the structure of section 11370.2 the Legislature intended that multiple enhancements can be imposed for the same prior convictions, if there are current multiple counts of conviction as to which different subdivisions of section 11370.2 apply.id: 22193
The appellate court took judicial notice of the fact that “Ambien” was a controlled substance so the instructional error on the enhancement was harmless. Defendant argued the enhancement for administering a controlled substance for the purpose of committing sexual penetration (Penal Code section 12022.75) must be vacated because the prosecution presented no evidence that “Ambien” was a controlled substance. The court found the issue was not whether the prosecution failed to prove an element of the offense because the jury instruction completely removed that issue from the jury’s consideration. The trial was conducted as if Ambien’s status as a controlled substance was a presumed fact. The court took judicial notice (using the Physician’s Desk Reference) of that fact and found the instructional error was harmless.id: 22155
Enhancement for prior drug offense applies even when execution of sentence on that offense was stayed under section 654. Health and Safety Code section 11370.2, subd.(a) requires a three year enhancement when a defendant is convicted of certain drug offenses and has suffered prior convictions for the same or other specified drug convictions whether or not the prior conviction resulted in a term of imprisonment. The enhancement may be imposed even when execution of the sentence on the prior conviction was stayed under Penal Code section 654.id: 21829
Failure to instruct on knowledge element for leaving the scene enhancement was harmless where the evidence showed defendant knew the accident was of the type that likely injured someone. Defendant was convicted of gross vehicular manslaughter while intoxicated under Penal Code section 191.5, subd,(a). The trial court erred in failing to instruct that for purposes of the enhancement for leaving the scene, defendant had to have knowledge that the accident resulted in injury to another person or had to know the accident was such that one would reasonably anticipate that it would result in an injury. However, the error was harmless where the evidence presented by both sides established that defendant knew the accident was of such a nature that it was probable someone was injured. id: 21859
The prosecution's failure to plead that the attempted murders were willful, deliberate and premeditated required reversal of the life terms. Defendant's life sentences for the two attempted murder convictions were unauthorized and imposed in violation of federal due process requirements because the prosecution failed to allege those offenses were committed willfully, deliberately and with premeditation as required by the Penal Code section 664, subd.(a). id: 21894
There was insufficient evidence to show defendant knew the schizophrenic victim was developmentally disabled for purposes of the section 667.9, subd.(a) enhancement.Defendant was convicted of robbery along with an enhancement finding under Penal Code section 667.9, subd.(a) that he knew or should have known that his victim was developmentally disabled. While defendant likely believed the victim had a mental problem, and referred to her as a "a crazy lady", the evidence did not show defendant knew the victim had a severe and chronic disability that was likely to continue indefinitely and limited her in various areas of life activity. Without this knowledge, defendant could not have known the victim was developmentally disabled for purposes of the section 667.9 enhancement.id: 21635
Enhancements for a defendant with one strike are not doubled.While the term of a defendant with one strike prior is doubled under the three strikes law, enhancements are added after the determination of the base term and are not doubled. The trial court erred in doubling both the criminal street gang and firearm use enhancements imposed on count three.id: 21359
The trial court did not err by instructing that the specific intent necessary for the gang enhancement was the intent to promote “any” crime.Defendant argued the trial court erred by instructing that the specific intent required for the gang enhancement was to promote “any” criminal conduct rather than the intent to promote the charged offense to which the enhancement attached. However, for purposes of the enhancement the defendant’s intent need not be restricted to just the charged crimes.id: 20827
Because the gang evidence was admissible to prove the rape charge the trial court did not err by denying the motion to sever the gang charge or bifurcate the gang enhancements. Defendants argued the trial court erred in failing to sever the gang charge from the other offenses and bifurcate the gang enhancements. However, the trial court, at the time of the ruling, could reasonably have found the gang evidence could have been admissible to prove the rape charge, and the court did not err in denying the motion to bifurcate the gang enhancement.id: 20343
Engaging in gang activities with family members does not fall within the freedom of association protected by the First Amendment.Defendant argued the true findings on the gang enhancements and the conviction on the gang charge violated his First Amendment right of freedom of association because the other gang members were also family members with whom he had a right to associate. However, defendant was not prosecuted for associating with family members. Familial relationship is not a defense to a gang charge. id: 20282
The prosecution had discretion to charge either of two great bodily injury enhancement allegations where neither was more specific.Defendant argued she could not lawfully be charged with a Penal Code section 12022.7, great bodily injury enhancement because a more specific enhancement, the one provided in section 12022.95,
applies in cases like this where the child endangerment results in death. However, neither of the enhancements in question is more specific than the other, and thus the prosecution had discretion to allege either of them.id: 19021
The trial court had discretion to strike punishment for the section 12022, subd.(b) deadly weapon enhancements.The trial court erred in concluding it lacked discretion to strike the deadly weapon enhancement under Penal Code section 12022, subd.(b)(1). It had discretion to do so under section 1385.id: 20010
Enhancement allegations may not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses.Enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses. Neither the ban on multiple punishment found in Penal Code section 654, nor principles of federal double jeopardy protection, require a different result simply because multiple convictions otherwise
permitted under section 954 and the legal elements test in theory might give rise to impermissible multiple punishment in future criminal proceedings should the defendant reoffend upon release from prison.id: 19810
The Vehicle Code section 20001, subd.(c) flight enhancement may be applied to an aider and abettor.A defendant convicted of gross vehicular manslaughter as an aider
and abettor may also be subject to the Vehicle Code section 20001, subd.(c) enhancement for fleeing the scene.id: 19426
Section 186.10 enhancement may be applied when the defendant has been convicted of conspiracy to commit money laundering but not of money laundering itself.The trial court may impose an enhancement under Penal Code section 186.10, subd.(c), for money laundering when defendant is not convicted of money laundering under Penal Code section 186.10, subd.(a), but is convicted of conspiracy to commit that offense under section 182.id: 18650
The trial court can strike an enhancement but cannot stay punishment.The trial court found defendant committed counts 1 and 4 for the benefit of a street gang, and stayed punishment on the enhancements for each. However, under Penal Code section 1385, the trial court only has power to dismiss or strike an enhancement. The court erred by staying the punishment.id: 18533
Extradition order barring prosecution of the Riverside manslaughter offense, did not prevent use of that offense to enhance the sentence for the Orange County assault crimes.After being extradited from Italy, defendant was convicted of aggravated assault and drunk driving. He argued the trial court exceeded its jurisdiction in enhancing his sentence for these crimes based on another crime (vehicular manslaughter) for which his extradition was also sought but denied. While the Italian extradition order barred prosecution and punishment for that crime, the prohibition did not extend to sentence enhancement because the enhancement was not punishment for that crime. Neither the extradition order nor the "doctrine of specialty" barred use of the manslaughter conviction as a sentence enhancement in the assault and drunk driving case.id: 18330
"Termination of pregnancy" enhancement under section 12022.9 is not restricted to cases resulting in an abortion or miscarriage.Defendant punched his pregnant girlfriend several times which resulted in a premature delivery, and the death of the baby within a month. He was convicted of corporal injury resulting in trauma under Penal Code section 273.5, subd.(a). The jury also found as to that count that the injury resulted in the termination of pregnancy under section 12022.9, subd.(a). Defendant argued the evidence did not support that finding because "termination of pregnancy" under that provision can only mean a miscarriage or an abortion. However, the enhancement was supported by the evidence where defendant assaulted the victim ending her pregnancy two months prematurely by forcing an immediate delivery of the fetus through a C-section.id: 17943
The trial court did not err in imposing one-third of the upper term on the subordinate gun-use enhancement.Defendant argued the trial court erred as a matter of law in calculating the sentence for the gun-use enhancement related to the subordinate robbery count. As part of the subordinate term the court imposed one-third the upper term of 10 years for the related gun use enhancement. Defendant argued that under Penal Code section 1170.1, subd.(a), the trial court was required to use the middle term of four years. However, the court was not so limited. It had the discretion to use any of the enhancement's terms (upper, middle or lower) in calculating the subordinate term.
id: 17901
Application of the "aggravated white collar crime enhancement" did not violate the ex post facto principles even though some of the transactions which triggered the enhancement occurred before its effective date.Defendant was convicted of several violations of securities fraud in a Ponzi scheme. His sentence was enhanced by Penal Code section 186.11, since the amount taken exceeded $500,000. The enhancement became effective in 1996. The jury's finding included transactions that occurred from 1993 to 1996. Defendant argued ex post facto principles precluded application of the enhancement because the $500,000 minimum was met with transactions that occurred prior to the effective date of the amendment. However, once defendant continued to defraud investors after the effective date of the amendment, he was on notice of the consequences. After ignoring the warning, he may not invoke the protections of the ex post facto clause.id: 17870
Aggravated sexual assault against a child under section 269 is not listed in the offenses subject to the section 12022.8 enhancement, but the enhancement applied since commission of section 269 offense necessarily includes commission of a listed defense.Penal Code section 12022.8 requires imposition of a five year sentence enhancement if the defendant causes great bodily injury during the commission of specifically listed sex crimes. Section 269, aggravated sexual assault against a child, subjects a defendant who is found guilty of committing specifically listed sex crimes against a child under 14 years of age and 10 or more years younger than the defendant to a "one strike" sentence but section 269 is not one of the sex crimes listed in section 12022.8. However, defendant was subject to the five year enhancement because section 269 necessarily includes commission of one of the sex crimes listed in section 12022.8.id: 17689
Assault with intent to commit rape, sodomy or oral copulation under section 220, though not specifically listed, requires an enhancement under section 12022.3.Defendant was convicted of assault with intent to commit rape, sodomy, or oral copulation under Penal Code section 220, He argued the trial court improperly enhanced his sentence under Penal Code section 12022.3 because section 220 was not specifically listed in that section. However, section 12022.3 provides for a sentence enhancement for an attempt to commit rape, sodomy or oral copulation. Since an assault is defined as an attempt coupled with the present ability to commit a violent injury, defendant's violation of section 220 translates into an attempt to commit rape, sodomy or oral copulation for which section 12022.3 requires an enhancement.id: 17363
The trial court properly imposed full term enhancements under section 12022.53 on each count for rape, forcible oral copulation and digital penetration.Defendant was convicted of forcible oral copulation under Penal Code section 288a, subd.(c), forcible rape under section 261, subd.(a)(2), and forcible digital penetration under section 289, subd.(a)(1). These offenses are subject to the provisions of section 1170.1, subd.(h) which provides for full-term enhancements. The trial court therefore properly imposed full 10-year firearm use enhancements under section 12022.53, subd.(b) on those counts.id: 17281
An "acquittal" under Penal Code section 1118 does not apply to recidivist allegations.At a bifurcated court trial on the three strikes and prior prison term allegations, the defense brought a motion for acquittal under Penal Code section 1118 as to the three strikes allegation the prosecution had not pursued and the 1989 prison prior. The court granted the motion. The court later vacated its earlier finding of "not guilty" on the 1989 prison prior. Defendant argued that imposition of the enhancement was improper because once the court granted the section 1118 motion to acquit him of that allegation, it did not have the power to change its ruling. However, while section 1118 may or may not apply to conduct-based enhancements, it does not apply to status-based allegations.id: 16637
Court did not err in reconvening the jury to decide the firearm use enhancement where the jury was waiting to decide the prior conviction allegations and was therefore still under the court's control.Defendant argued the court lacked authority to reconvene the jury to determine the truth of the firearm use allegation because the jury had already returned verdicts on the substantive counts and made a finding on another enhancement. However, the new verdict form on the firearm use enhancement was sent in to the jury when they were waiting to decide the prior conviction allegations. The jury was still under the court's control and the trial court properly reconvened the jury to make the additional finding. The problem was that the jury was never instructed on the elements of the Penal Code section 12022.4, subd.(a) enhancement which they determined to be true. The error was harmless where the evidence on the elements was undisputed at trial.id: 16470
Enhancement for drug sale near school does not require proof of intent to sell near a school.Defendant was convicted of possession of cocaine base for sale with a finding pursuant to Health and Safety Code section 11353.6, subdivision (b), that the offense was committed within 1000 feet of a school. Defendant argued the court erred in refusing to instruct the jury that he was required to have the intent to sell drugs near the school in order for the enhancement to be found true. However, section 11353.6 does not require proof of such intent.id: 16226
Enhancement for drug sales near a school applies when the underlying offense is conspiracy to commit a narcotics offense and the overt acts occur near a school.Health and Safety Code section 11353.6 provides that a sentence enhancement may be imposed when a specified narcotics offense, or conspiracy to commit the offense is found to have occurred in a public area within 1,000 feet of a school. When the underlying offense is a conspiracy to commit a narcotics offense, the enhancement may be applied when overt acts taken in furtherance of the conspiracy occur in a public area. This is so even though the narcotics are being held inside a private residence and the actual narcotics sale or transaction is to occur within the private residence.id: 16227
Enhancement for prior drug conspiracy conviction does not require a finding that defendant was substantially involved in the prior conspiracy.Defendant was convicted of manufacturing PCP pursuant to Health and Safety Code section 11379.6, among other things. His sentence was enhanced for two prior federal conspiracy convictions under section 11370.2. Defendant argued the enhancements were improper because subdivision (e) of section 11370.2 requires a finding that the defendant was substantially involved in the conspiracy. However, subdivision (e) applies only to the defendant's level of participation in the instant conspiracy, not the prior conspiracy conviction.id: 16228
Imposition of the school-zone enhancement did not violate the double-the-base term limitation of section 1170.1.Defendant argued the imposition of the four year school-zone enhancement pursuant to Health and Safety Code section 11353.6, subdivision (b), violated Penal Code section 1170.1, which subject to certain exceptions, limits the term of imprisonment to twice the base term. However, the school-zone enhancement states it shall apply in addition to any other statutory punishment provision. Because the enhancement language is unambiguous and relates to defendant's specific conduct, i.e., dealing narcotics within a school zone, it logically prevails over the general sentencing provisions of Penal Code section 1170.1.id: 16234
Court properly imposed full term enhancements for the straight life term as well as for the 25 years to life term.Defendant was convicted of first degree murder as well as premeditated attempted murder. The court imposed full firearm use enhancements for both crimes. Defendant argued the court should only have imposed one-third of the term for the enhancement on the attempted murder charge. However, both straight life terms and sentences of a number of years to life are indeterminate sentences not subject to the Determinate Sentencing Act. Therefore, the court properly imposed full enhancements for the murder and attempted murder counts.id: 16222
Defendant was not entitled to the benefit of the modification in the enhancement statute which took effect before his case became final.Defendant argued his sentence must be reduced by two years because the Legislature reduced the punishment in Penal Code section 666.5 for recidivist auto thieves as of January 1, 1997, which was before his case became final. However, nothing in the legislation suggested it should apply to all cases not yet final. Defendant was properly sentenced based on the version of section 666.5 as it existed at the time he committed the auto theft.id: 16225
Trial court has no duty to instruct on "lesser included enhancements."Defendant argued the trial court should have instructed sua sponte on being armed with a firearm (Penal Code section 12022, subdivision (a)) because it is a lesser included enhancement of personally using a firearm (section 12022.5, subdivision (a)). However, a trial court's sua sponte obligation to instruct on lesser included offenses does not encompass an obligation to instruct on "lesser included enhancements."id: 16095
Enhancement for dealing drugs near a school applies where school is closed but minors are on the grounds.Health and Safety Code section 11353.6, subdivision (b), creates a sentence enhancement applicable to certain narcotics offenses committed within 1000 feet of a school. The trial court did not err in instructing the jury that the provision applies to a person who sells drugs outside the school boundary while the school is closed but minors are on the school grounds. While the court erred in substituting the word "when" for "where" in the clause "where the offense occurs," the error was harmless and did not render the statute unconstitutionally vague.id: 15563
Enhancement for multiple drunk driving offenses applied where the fourth conviction predated the triggering violations.Drunk driving may be charged as a felony rather than a misdemeanor when the offense occurs within seven years of three or more separate DUI violations which resulted in convictions. (Vehicle Code section 23175, subdivision (a).) The Legislature intended to subject repeat offenders to enhanced penalties regardless of the order in which the offenses were committed and the convictions obtained. Moreover, imposition of an enhanced penalty on a fourth DUI conviction for an offense predating the triggering violations does not violate ex post facto principles, so long as the commission of the offense underlying the section 23175, subdivision (a) charge occurred after the statute's 1984 amendment became effective.id: 15520
Enhancement for HIV-positive males who have unlawful sexual intercourse with minor females is not unconstitutional for punishing status and does not violate equal protection principles.Penal Code section 12022.85 imposes a three year sentence enhancement on individuals who, knowing they are HIV-positive, have unlawful sexual intercourse with minor females. The provision is not unconstitutional on its face for punishing status rather than conduct. Moreover, there is no equal protection violation in treating these defendants differently than carriers of other communicable diseases or in failing to apply the statute to male victims.id: 15254
Section 1170.1, subdivision (a) did not prohibit the court from imposing the three-year Health and Safety Code section 11353.1 age difference enhancement.The limitations on consecutive sentencing which appear in Penal Code section 1170.1, subdivision (a) do not prohibit the imposition of a mandatory Health and Safety Code section 11353.1 enhancement to the sentence of a defendant who is convicted of giving a controlled substance to a minor who is at least four years younger than the defendant.id: 13924
The court had discretion to strike the enhancement for sale of more than ten pounds of cocaine but had no discretion to stay the enhancement.Defendant was convicted of aiding and abetting the sale of cocaine and the jury found true the allegation under Health and Safety Code section 11370.4, subdivision (a)(2), that the substance containing cocaine exceeded ten pounds. The court acted in excess of its jurisdiction in staying the enhancement under section 11370.4, subdivision (a)(2) since that is not a sentencing option. The case was remanded so that the court may exercise its discretion to impose or strike the enhancement.id: 13929
There is no drive-by element for the enhancement for discharge of a firearm from a motor vehicle causing another's death.Defendant was convicted of voluntary manslaughter and the jury made a finding that he discharged a firearm from a motor vehicle causing another's death, within the meaning of Penal Code section 12022.55. He argued the jury should have been instructed that the enhancement statute contains an implied drive-by element. However, whether the vehicle is in motion or stationary is insignificant and there is no drive-by element in the enhancement statute.id: 13935
Defendant's prior conviction of robbery while using a deadly weapon supported the habitual offender enhancement.Defendant was determined to be a habitual criminal and sentenced to consecutive indeterminate life terms under Penal Code section 667.7. He argued there was insufficient evidence to show that he used a deadly weapon during his 1966 robbery. Defendant argued there was no evidence that his gun was loaded and therefore he had a dangerous weapon as opposed to a deadly weapon as required under section 667.7. However, the information specifically charged that he committed a robbery while using a deadly weapon. Given the established meaning of the term deadly weapon, it is presumed that it was used in a technical since as a loaded gun or one used in a lethal fashion.id: 13892
Defendant's prior conviction of assault with a deadly weapon on a peace officer qualified as an enumerated felony under section 667.7.Defendant argued his prior assault with a deadly weapon upon a peace officer did not come within the habitual offender provision of Penal Code section 667.7, subdivision (a). That provision lists assault with a deadly weapon but not assault with a deadly weapon on a peace officer as a qualifying prior. Because the only difference between the two offenses is that former Penal Code section 245, subdivision (b) requires the victim to be an on-duty peace officer, defendant's conviction qualified as an enumerated felony under section 667.7.id: 13893
Defenseless victim enhancement (section 667.9) may be imposed on first time offenders.Defendant pled nolo contendere to several counts of forcible rape and admitted an enhancement allegation that the victim was vulnerable under Penal Code section 667.9, subdivision (a). On appeal he argued the defenseless victim enhancement must be stricken as there was no predicate sentence pursuant to section 667, subdivision (a). However, while subdivision (b) of section 667.9 contains a prior conviction requirement, subdivision (a) of that section applies to first time offenders such as defendant.id: 13895
Each of defendant's aggravated assaults that involved separate victims and locations qualified for punishment under the habitual offender enhancement.Defendant was determined to be a habitual criminal and was sentenced to consecutive life terms under Penal Code section 667.7. He argued that he should not have been sentenced to more than one life term based on the same prior convictions. However, each of defendant's two convictions for assault with a deadly weapon causing great bodily injury, which involved separate victims and separate locations, independently qualified for punishment under section 667.7.id: 13898
Enhancement for selling drugs within 1,000 feet of a public high school applies even if school is not in session.Defendant was convicted of possession of cocaine base for sale within 1,000 feet of a public high school (Health and Safety Code section 11353.6). He conceded the alleged offense took place within 1,000 feet of a public high school, but argued there was insufficient evidence that school was in session on July 23, 1990. However, there being no language expressly limiting application to the regular school year, section 11353.6 applies at all times.id: 13901
Error in inserting coconspirator's name in the enhancement allegation was not prejudicial.Defendant was properly named in the information, but by apparent clerical error his coconspirator's name was inserted in the enhancement allegation. The error did not prejudice defendant where he was the only person on trial and did at no time during trial did he indicate he was misled as to the enhancement charge.id: 13903
Hate crime enhancement targets discriminatory conduct rather than speech and is not unconstitutionally vague or overbroad.The First or Fourteenth Amendments to the United States Constitution do not prohibit penalty enhancements for felonies if a fact finder determines the offender or offenders intentionally selected their victim because of the victim's race, color, religion, nationality, country of origin, ancestry, disability, or sexual orientation.. Penal Code section 422.75 targets discriminatory conduct not speech. Moreover, the provision is not unconstitutionally vague as the phrase because of is sufficiently precise to provide notice as well as guidelines for its application. Finally, because the statute is directed at enhancing punishment for conduct, rather than for speech or opinion, it is not overbroad.id: 13910
Imposition of one enhancement for firearm use under section 12022.5, subdivision (a) for one offense and a second enhancement for GBI under section 12022.5, subdivision (b)(1) was not improper.Defendant argued the trial court was precluded by <i>In re Culbreth</i> (1976) 17 Cal.3d 330, from imposing both a gun use enhancement for the robbery count pursuant to Penal Code section 12022.5, subdivision (a), and an enhancement on the attempted murder count for causing great bodily injury by shooting at an occupied vehicle pursuant to section 12022.5, subdivision (b)(1). <i>Culbreth</i> was overruled in <i>People v. King</i> (1993) 5 Cal.4th 59, but still applies to offenses, such as those involved here, committed before <i>King</i> became final. However, <i>Culbreth</i> does not prohibit the imposition of one enhancement for use of a firearm under section 12022.5, subdivision (a) and a second enhancement for the infliction of great bodily injury under section 12022.5, subdivision (b)(1).id: 13912
Imposition of two attempted murder enhancements was not improper.Defendant was convicted of attempted murder and discharging a firearm at an occupied motor vehicle. He argued the court erred in imposing two attempted murder enhancements: Penal Code section 12022.5, subdivision (a) (personal use of a firearm) and section 12022.7 (inflicting great bodily injury). However, the trial court's sentencing discretion with respect to those enhancements is expressly described in section 1170.1, subdivision (e). Both enhancements were properly imposed.id: 13913
Jury's view of the victim's physical appearance supported the enhancement finding that defendant should reasonably have known the victim was older than age 65.Defendant's sentence was enhanced pursuant to Penal Code section 667.9, subd. (b) where the robbery victim was over age 65. Defendant argued there was insufficient evidence to support the jury's finding that he reasonably should have known the victim's age was 65 years or older. He claimed the prosecutor noted for the record only that the victim's hair was gray, but did not note any other physical characteristics indicating her age. However, the record showed the evidence presented to the jury included the 68 year old victim's appearance before the jury. The jury could reasonably deduce from its view of the victim that defendant reasonably should have known she was at least 65 years old.id: 13915
Personally armed while selling heroin enhancement requires only proof that defendant had a firearm readily available for immediate access.A defendant found to be personally armed with a firearm while selling or offering to sell heroin is subject to a three, four or five year sentence enhancement at the court's discretion (Penal Code section 12022, subd. (c)). Defendant argued the court erred in failing to instruct the jury that he was personally armed within the meaning of the provision only if they found he had the firearm on his person. However, a true finding under section 12022, subd. (c), requires only that the defendant, while selling heroin, personally had a firearm available for immediate access.id: 13918
A prior conviction for use of a destructive device with intent to injure can be based on an intent to injure property as well as people for purposes of the prior serious felony enhancement.Appellant argued the court erred in finding his conviction of Penal Code section 12303.3 (use of a destructive device with intent to injure) to be a serious felony. He claimed the evidence established and the jury found that he attempted to explode the destructive device or explosive with the intent to injure property only, and with that intent, rather than an intent to injure persons, the crime did not qualify as a serious felony for purposes of the section 667 enhancement. However, intent to injure as used in section 1192.7, subd. (c)(15) includes either the intent to injure any property or the intent to injure any person.id: 13879
Corpus delicti rule did not apply to appellant's sentence enhancement based on the commission of a sex offenses with knowledge that he had AIDS.Appellant was accused of committing several sex offenses. It was also alleged, as to each count that he had committed each offense with knowledge that he had AIDS in violation of Penal Code section 12022.85. He argued the corpus delicti rule applied to the enhancement and that the prosecutor had to prove, independent of his statements, that appellant had AIDS at the time of the offenses. However, the corpus delicti rule does not apply to section 12022.85 sentence enhancements. Moreover, the evidence supported imposition of the enhancements where appellant's statements to his victims that he had AIDS or was HIV positive were admitted into evidence without objection and no evidence was presented in rebuttal.id: 13881
Court did not err in allowing amendment to information adding prior conviction enhancement allegations after the verdict but before the jury was discharged.The trial court did not exceed its jurisdiction in permitting the prosecution to amend the information to charge defendant with the prior prison term and prior serious felony enhancements after the verdict on the underlying offenses but before the jury was discharged.id: 13882
Court did not err in imposing the middle enhancement term after it had imposed the lower base term on the substantive crime.Before imposing the middle enhancement term under Penal Code section 12022, subd.(e), the trial court imposed the lower base term for the substantive crime of transporting methamphetamine. Defendant argued the same mitigating factors causing the trial court to impose the lower base term on the transportation count necessarily mandated its choice of the lower enhancement term. However, the court was not required to give the same facts the same weight and effect in two different exercises of discretion.id: 13883
Court did not err in imposing an enhancement for a violent sex prior for rape, a conviction brought and tried with a kidnapping conviction for which a separate five year enhancement was imposed.Defendant was convicted of rape. He had a prior conviction of kidnapping and in that same case he was convicted of rape. The trial court properly imposed a Penal Code section 667.6, subdivision (a) enhancement for the prior rape conviction brought and tried with the kidnapping conviction for which he received a separate section 667, subdivision (a) enhancement.id: 13884
Court did not violate the rule against double punishment by enhancing defendant's sentence with his serious prior conviction and his prison priors.The trial court did not violate the rule against double punishment by enhancing defendant's sentence with his prior serious felony conviction under Penal Code section 667, subdivision (a) and then imposing a consecutive one year term for two prison priors under section 667.5, subdivision (b). A defendant may be sentenced for a prior serious felony conviction and then also sentenced for a prior prison term for a different prior offense even though the convictions occurred at the same time and the sentences were served together.id: 13738
Sentencing court's inadvertent reference to the wrong subdivision in the enhancement statute did not negate the enhancement.Defendant was charged with a methamphetamine offense included within Health and Safety Code section 11370.2, subdivision (b), and with a qualifying prior. He pleaded guilty to the methamphetamine charge and admitted the prior. His conduct as admitted and as charged subjected him to the enhancement. However, at sentencing the trial court simply misspoke in referring to subdivision (a) of the statute rather than the applicable subdivision (b). Defendant argued the inadvertent misstatement in referring to the wrong subdivision, entirely viviated the effort to impose the enhancement. However, there was no basis for such relief and the abstract of judgment was amended to refer to subdivision (b) of the statute.id: 13388
Supreme Court permits uncounseled misdemeanor to be used to enhance sentence.In a 5-1-3 opinion written by Chief Justice Rehnquist, the Supreme Court overruled <i>Baldasar v. Illinois</i>, 446 U.S. 222 (1980) and held that an uncounseled misdemeanor conviction for which no prison term was imposed, may be used to enhance punishment for a later conviction. In the present case, the petitioner was assessed one criminal history point for a state misdemeanor conviction for driving under the influence, for which he was not incarcerated. Even though he was not represented by counsel at the DUI proceeding, his conviction was valid under <i>Scott v. Illinois</i>, 440 U.S. 367 (1979) which held that there is no right to counsel in a misdemeanor proceeding where no imprisonment is imposed. Therefore his sentence was properly enhanced, Justice Souter concurred, and Justices Blackmun, Stevens, and Ginsberg dissented.id: 12267
Plea on the prior was not invalid for failure to advise on the right to testify.The trial court struck the prior conviction on the ground that the transcript of the prior plea did not show defendant was advised of his right to testify. The record did establish that defendant was properly advised of his rights regarding self-incrimination, confrontation, and jury trial. The law does not require that he be advised of his right to testify.id: 11566
Defendant could not object to the enhancement for perjury for the first time on appeal.Defendant argued the trial court erred in failing to make on-the-record findings necessary to enhance defendant's sentence for perjury violations. However, defendant's failure to object at the sentencing hearing barred him from presenting the issue for the first time on appeal.id: 10821
Section 1170.15 providing full consecutive sentences for dissuasion of a witness is not an enhancement which must be pled and proven.Defendant argued the prosecutor failed to adequately plead and prove Penal Code section 1170.15 which provides for full and consecutive sentences when a defendant attempts to dissuade a witness. Defendant claimed section 1170.15 created an enhancement which must be pled and proven. However, section 1170.15 creates an alternative sentencing scheme to section 1170.1, not an enhancement. As such, it need not specifically be pled and proven.id: 10838
A guilty plea on which sentence has not yet been imposed constitutes a conviction under section 11370.2, subdivision (c).Defendant argued that a guilty plea on which sentence has not yet been imposed, does not constitute a conviction for the enhancement under Health and Safety Code section 11370.2, subdivision (c). However, for purposes of this provision, conviction means ascertainment of guilt, which occurred in this case when defendant voluntarily entered his plea of guilty to the prior offense.id: 10691
Enhancement for person who possesses drugs and has possessed them for sale in the past did not violate the double-the-base term limitation.Health and Safety Code section 11370.2(a) provides a three year sentence enhancement for persons convicted of section 11351 and having suffered a prior section 11372 conviction. The enhancement does not violate the double-the-base term limitation of Penal Code section 1170.1(g).id: 10720
Escape following misdemeanor conviction may not be used as a prior felony to enhance but may be used as a basis for an ex-felon in possession of a weapon prosecution.Defendant was convicted of possession of a concealable firearm by a convicted felon under Penal Code section 12021, subdivision (a). His prior conviction was for a felony escape following a misdemeanor conviction under section 4532, subdivision (a). A conviction under that section may not be charged as a prior felony conviction in subsequent prosecution. Defendant argued that since it may not be used as a prior felony conviction to enhance a sentence, it likewise may not be used as the basis for a charge under section 12021. However, the limiting language in section 4532, subdivision (a) does not apply when a prior felony conviction is used, not to add an enhancement, but to establish an element of the offense in a subsequent prosecution.id: 10651
Habitual offender convicted of murder and assault should have been sentenced on the murder count under section 190 and under section 667.7 for the remaining counts.Defendant was convicted of murder and two counts of aggravated assault. The jury also found true all the allegations of force and the prior serious felony convictions which qualified defendant under Penal Code section 677.7, as a habitual offender of crimes involving force likely to create great bodily injury. The 20-year to life sentence the court imposed under section 677.7 was unauthorized. The defendant should have been sentenced on the murder count under section 190 and under section 667.7 for the assault counts. On remand the trial court is not limited by the prior unauthorized sentence. Moreover, defendant admitted the truth of the section 667.7 allegations because of a bargain with the court regarding an indicated sentence. Defendant will be allowed to withdraw those admissions prior to the resentencing despite the prosecutor's warning to defendant at the original sentencing that the sentence was improper, that it would be appealed, and defendant's waiver of the right to withdraw his admissions.id: 10157
Movement of rape victim 40-50 feet from an open driveway to a camper located behind the house was sufficient to support the section 667.8, subdivision (a) enhancement.Defendant argued there was insufficient evidence to support a Penal Code section 667.8, subdivision (a) enhancement for simple kidnapping. However, the victim was taken 40 to 50 feet from a driveway open to public view, to the interior of a camper located at the bottom of a driveway behind a house. Given the change in surroundings from the point of capture and destination the victim was moved a substantial distance as a matter of law for purposes of the enhancement.id: 9776
Court erred in imposing sentence on the conviction of kidnapping for sexual purposes and staying punishment on the enhancement for kidnapping for sexual purposes.Defendant was convicted of numerous sex offenses, kidnapping for sexual purposes (Penal Code section 208), and the jury found true an enhancement for kidnapping for sexual purposes (section 667.8). The trial court erred in imposing sentence on the count for kidnapping for sexual purposes and in staying the enhancement. The enhancement is mandatory and was enacted to avoid the limitations of section 654. The Court of Appeal therefore stayed execution of sentence on the substantive count and ordered the stay dissolved on the section 667.8 mandatory enhancement.id: 9746
Enhancement for crimes committed against victims at least 65 years old is not unconstitutionally vague.Defendant was convicted of robbery and the jury found true a sentence enhancement allegation that the robbery victim was over 65 years of age and such condition was known or reasonably should have been known by defendant (Penal Code section 667.9, sub. (b)). Defendant argued that imposition of the enhancement violated due process because, when applied to age, the disjunctive reasonably should be known element is unconstitutionally vague. However, the reasonable knowledge language in section 667.9, sub. (b) does not make that section constitutionally void for vagueness on its face because all elements of the enhancement including actual knowledge or reasonable knowledge are clear and understandable to any person committing one of the designated crimes and to any trier of fact.id: 9481
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245