Panos v. Superior Court

Opinion

PUGLIA, P. J.

Petitioner John Robert Panos (defendant) is charged in respondent superior court with robbery (Pen. Code, § 211) committed on August 8, 1983. The information also alleges as an enhancement under Penal Code section 12022.1 that defendant committed the Sacramento robbery while released on bail pending trial in Los Angeles County for an earlier robbery; it is not alleged defendant was convicted of the Los Angeles oifense.

Defendant moved pursuant to Penal Code section 995 to set aside the enhancement allegation.

(People

v.

Superior Court

(Mendella) (1983) 33 Cal.3d 754, 763 [191 Cal.Rptr. 1, 661 P.2d 1081].) Respondent court denied the motion. We issued an alternative writ of prohibition to review the sufficiency of the evidence adduced at the preliminary examination to support the charged enhancement. (Pen. Code, § 999a.)

At the preliminary examination, the People offered proof that defendant committed the charged robbery while released from custody on bail pending trial on an earlier Los Angeles robbery charge. There was no proof that defendant had ever been convicted of the Los Angeles offense. Petitioner contends that a conviction of the earlier felony is a necessary element of an enhancement charged under Penal Code section 12022.1 and that the failure to prove a conviction requires dismissal of the enhancement allegation. We agree.

Penal Code section 12022.1 is set out in full in the margin.

1

It unambiguously requires an earlier conviction as a prerequisite to a penalty

[629]

enhancement thereunder. (Cf.

People

v.

Superior Court (Price)

(1984) 150 Cal.App.3d 486, 488-489 [198 Cal.Rptr. 61].) Upon conviction of the subsequent, on-bail offense a defendant is subject to the penalty enhancement in only three circumstances, all of which contemplate a preexisting conviction of the earlier felony offense. Subdivision (a) mandates an enhancement when the person is convicted of the earlier offense and is sentenced to state prison for that offense. Subdivision (b) mandates an enhancement where the person is convicted of the earlier offense but is granted probation for that offense. Subdivision (c) provides sentencing alternatives in the event the conviction of the earlier offense is reversed on appeal; the enhancement is suspended pending retrial and may be reimposed upon reconviction of the earlier offense.