People v. Bauer CA1/1

Filed 5/10/16 P. v. Bauer CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, A144833 Plaintiff and Respondent, (Mendocino County v. Super. Ct. Nos. JESSICA ANNE BAUER, SC-UK-CR-CR-13-0071721-002, SC-UK-CR-CR-13-0075428-002 & Defendant and Appellant. SC-UK-CR-CR-14-0077477-002)

Defendant Jessica Anne Bauer was charged in two separate cases with various crimes, including transportation of a controlled substance. After defendant missed a joint hearing for both cases, she was charged with and pleaded guilty to two different counts of failure to appear, one for each case. In connection with these two counts, the court sentenced defendant to two consecutive eight-month terms. Defendant now appeals, arguing the trial court improperly punished her twice for the same act in violation of Penal Code1 section 654. We agree and reverse. Additionally, defendant appeals the validity of her plea of no contest to the transportation of a controlled substance charge on the grounds the statutory provision defining that crime was amended to add an additional element before the judgment became final. This appeal is moot because we have already granted defendant’s habeas corpus petition on this issue. (In re Bauer (Apr. 6, 2016, A147492) [nonpub. opn.].)

1 All statutory references are to the Penal Code unless otherwise specified.

I. BACKGROUND On March 26, 2013, defendant was charged in case No. SC-UK-CR-CR-13- 0071721-002 (hereafter the 21 case) with transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), with special allegations that defendant had a prior narcotics offense conviction and had served a prior prison term. On July 9, 2013, defendant pleaded no contest and entered an Arbuckle2 waiver in exchange for a two-year sentence, dismissal of the special allegations, and dismissal of a trailing misdemeanor matter. Another criminal complaint was filed against defendant on March 4, 2014 in case No. SC-UK-CR-CR-13-0075428-002 (hereafter the 28 case). Defendant was charged with two counts of grand theft (§ 487, subd. (a)), one count of forgery (§ 470, subd. (a)), and one count of second degree burglary (§§ 459, 460, subd. (b)). The complaint further alleged defendant committed the offenses while released on bail in the 21 case. Defendant pleaded not guilty and denied the special allegation. On April 10, 2014, the trial court held a joint hearing for both the 21 and the 28 cases. Defendant failed to appear, and a bench warrant was issued. In a new case, case No. SC-UK-CR-CR-14-0077477-002 (hereafter the 77 case), defendant was charged by information with two counts of failure to appear in connection with the April 10 hearing. The first count was for failure to appear in violation of section 1320.5 in the 28 case, the second was for “failure to appear on own recognizance” in violation of section 1320, subdivision (b) in the 21 case. The information also included special allegations that, at the time she failed to appear, defendant was released from custody on bail in the 28 case, she was released on her recognizance in the 21 case, and she had previously served a prison term.