Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F00748
BUTZ, J.A jury found defendant Hosam Kaddoura guilty of two counts of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) counts one and three), two counts of driving with a blood-alcohol level of 0.08 percent or more (id., § 23152, subd. (b) counts two and four), misdemeanor hit-and-run (id., § 20002, subd. (a) count five), driving with a suspended license (id., § 14601.5, subd. (a) count six) and resisting a peace officer (Pen. Code, § 148, subd. (a)(1) count seven), while sustaining allegations that defendant drove with a blood-alcohol level of 0.15 percent or more (Veh. Code, § 23578), and he was on bail at the time of counts three through seven (Pen. Code, § 12022.1). The court found defendant had three prior convictions for violating Vehicle Code section 23152 within the last 10 years (Veh. Code, § 23550), and sentenced defendant to five years eight months in state prison.
Undesignated statutory references are to the Vehicle Code.
While this appeal was pending, the trial court granted defendant’s motion to modify his presentence custody credits pursuant to the recent amendments to Penal Code section 4019. We conclude the trial court correctly applied the amendments of Penal Code section 4019 and increased defendant’s conduct credits from 162 days to 326 days for a total of 652 days of presentence credit. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant is not final”]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2), (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant having served 326 days of actual presentence custody, is entitled to 326 days of conduct credits.
On appeal, defendant raises two contentions regarding the on-bail enhancement: insufficient evidence and instructional error. We shall affirm.
FACTUAL BACKGROUND
Around midnight on December 14, 2007, defendant was stopped on Fulton Avenue in Sacramento for driving 60 miles per hour in a 35-mile-per-hour zone. He smelled of alcohol, had slurred speech, was unsteady on his feet, and had red, watery eyes. Defendant refused to perform field sobriety tests. His blood-alcohol level tested at 0.34 percent. He was released on bail following his arrest for driving under the influence of alcohol and driving with a blood-alcohol level of 0.08 percent or more.
On February 2, 2008, defendant, driving on a suspended license and on bail for the December 14 offenses, rear-ended a truck driven by Jose Aguilar. Aguilar contacted defendant and smelled alcohol on him; after defendant drove off, Aguilar followed. Aguilar called the police and later pointed out defendant to them. Officers contacted defendant, who appeared intoxicated, and arrested him. Defendant was uncooperative and spit on one of the officers. He had a blood-alcohol level of 0.22 percent.
Defendant testified that he had two glasses of wine between 8:00 and 11:00 p.m. on December 14 and was not drunk. He was drunk on February 2, but did not recall spitting on an officer.
DISCUSSION
I. Substantial Evidence
Penal Code section 12022.1 provides in pertinent part: “(a) For the purposes of this section only: [¶] (1) ‘Primary offense’ means a felony offense for which a person has been released from custody on bail or on his or her own recognizance.... [¶] (2) ‘Secondary offense’ means a felony offense alleged to have been committed while the person is released from custody for a primary offense. [¶] (b) Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court. [¶] (c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense....”
The parties stipulated defendant was on bail for the December 14 offenses driving under the influence of alcohol (count one) and driving with a blood-alcohol level of 0.08 percent or higher (count two) at the time of the remaining offenses. The People did not present evidence that the offenses in counts one and two were felonies.
Punishment for section 23152 violations is determined by the number of prior convictions for that offense. If the defendant has no more than two prior convictions, then the offense is punished as a misdemeanor. (§§ 23536, 23540, 23546.) If a defendant has three prior convictions under section 23152 within the last 10 years, a subsequent violation of section 21352 may be punished as either a misdemeanor or a felony. (§ 23550.) On January 28, 2008, defendant was charged for the December 14 incident with driving under the influence and driving with a blood-alcohol level of at least 0.08 percent. The initial complaint alleged one prior conviction for section 23152 (in June 2001).
After the second incident, in February 2008, defendant was charged in an amended consolidated information on February 20, 2009. The amended information charged the December 14, 2007 and February 2, 2008 offenses in the instant case, and pursuant to section 23550, alleged defendant had three prior section 23152 convictions within the last 10 years.
The prior convictions were alleged to have occurred in October 1999, July 2000 and June 2001.
Defendant waived his right to jury trial on the section 23550 allegations. The court sustained the allegations and imposed felony terms for each of the section 23152 convictions.
Defendant argues the status of the principal offense as a felony is an element of the on-bail enhancement which the People must prove beyond a reasonable doubt to a jury. Since the People presented no evidence that the principal offenses the section 23152 offenses in counts one and two were felonies when he was released on bail, defendant concludes the on-bail enhancement must be vacated, as no evidence of this element was presented to the jury.
A similar contention was addressed and rejected in People v. Smith (2006) 142 Cal.App.4th 923 (Smith). In Smith, the jury sustained the on-bail allegations, but the People conceded on appeal there was no testimony showing the defendant was arrested for a felony in the principal offense. (Id. at pp. 933-934.) While the defendant was charged with a felony in the principal offense, the defendant argued on appeal that the People had to prove the nature of the crime at the time he was released on bail. (Id. at p. 935.)
The Court of Appeal in Smith rejected the defendant’s contention. Penal Code section 12022.1 did not make the defendant’s conviction on the primary offense an element of the enhancement. Rather, “the statute only requires proof of conviction of the primary offense before the enhancement can be imposed.” (Smith, supra, 142 Cal.App.4th at p. 935; see People v. Walker (2002) 29 Cal.4th 577, 586 [“Although [Penal Code] section 12022.1, strictly speaking, does not appear to make the defendant’s conviction of the primary offense an element of the enhancement in order to prove the enhancement, the statute makes crystal clear that imposition of the enhancement requires conviction of the primary offense at some stage of the proceedings.”].)
Under subdivision (d) of Penal Code section 12022.1, “[w]henever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense.” Therefore, as Smith concluded, “It would make no sense to require that the jury find, as an element of [Penal Code] section 12022.1, that the defendant was convicted of the primary offense, when the primary offense may not even be tried until after the jury has been discharged in the trial of the secondary offense.” (Smith, supra, 142 Cal.App.4th at p. 935.)
The Court of Appeal in Smith concluded the jury did not determine whether the principal offense is a felony. (Smith, supra, 142 Cal.App.4th at p. 935.) Whether the primary offense is a felony is first determined by the People at the time of charging and then by the trial court when imposing sentence. (Ibid.) This is a pure question of law, which can be made by the trial court. (Id. at p. 935, fn. 4.)
We agree. Since the status of the principal offense can be ascertained after conviction on the secondary offense, it is clear the Legislature did not intend for the jury to consider whether the primary offense was a felony. As a question of pure law, this is a matter for the trial court rather than the jury.
Defendant contends this result is precluded by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]. Apprendi held that “Other than 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.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) The prior conviction exception to Apprendi is not to be construed “too narrowly.” (People v. Black (2007) 41 Cal.4th 799, 819.) The on-bail enhancement is predicated on a conviction for the principal offense; accordingly, it is intended “to penalize recidivist conduct with increased punishment.” (People v. McClanahan (1992) 3 Cal.4th 860, 868.) As a recidivism measure, the on-bail enhancement is not subject to the Apprendi rule.
We find support for this conclusion in the three strikes law. Whether a prior conviction is a serious felony and a strike is determined by the trial court rather than the jury. (People v. McGee (2006) 38 Cal.4th 682, 686.) This does not violate Apprendi because the three strikes law is a recidivist measure, and whether a prior conviction is a serious felony is an issue traditionally left to the sentencing court. (McGee, at p. 709.) Since the on-bail enhancement is a recidivist measure, and determining whether a crime is a felony is a quintessentially judicial function, our ruling is consistent with McGee.
We would reject defendant’s claim even if we applied Apprendi to the on-bail enhancement. Defendant waived his right to jury trial on the prior section 23152 convictions, the predicates for determining whether the principal offenses were felonies. This waiver forfeits any claim that he had a right to a jury trial on whether the principal offenses were felonies for the purpose of the on-bail enhancement.
Finally, we reject defendant’s claim that the on-bail enhancement cannot apply to him because he was not charged with a felony in the principal offenses until after he committed the secondary offenses. As we have already discussed, Penal Code section 12022.1 contemplates situations where the defendant is charged and tried on the principal offense after being convicted of the secondary offense.
The necessary condition for the on-bail enhancement is not the charge when defendant is released on bail, but the felony conviction on the primary offense. Clearly, the Legislature did not define liability for the on-bail enhancement by the status of the primary offense at any particular point in the charging process. So long as the defendant is ultimately charged and convicted with a felony for the principal offense, he is liable for the on-bail enhancement.
Since the felony status of the principal offenses was reserved for the trial court, defendant’s contention is without merit. The trial court sustained the prior conviction allegations and determined that the principal counts were felonies, findings which are supported by substantial evidence. Due process requires nothing more.
II. Duty to Instruct
Defendant also claims the trial court erred by failing to instruct the jury that it must find the principal offense was a felony to sustain the on-bail enhancement. As we have already determined, the status of the principal offense as a felony is not an element of the enhancement and is determined by the trial court rather than the jury. The trial court was not permitted to instruct the jury to determine whether the principal offenses were felonies for the purpose of the on-bail enhancement, and we accordingly reject defendant’s contention.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J. CANTIL-SAKAUYE, J.