People v. Reyes

Filed 10/6/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B268282

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA428669) v.

MARIO REYES,

Defendant and Appellant.

B276919 In re MARIO REYES, (Los Angeles County on Habeas Corpus. Super. Ct. No. BA428669)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Abzug, Judge. Affirmed. ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Granted. Buckley & Buckley and Christian C. Buckley, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent. _______________________

This consolidated appeal and habeas corpus petition involve a single issue: may the two year enhancement set forth in Penal Code section 12022.11 be imposed on defendant/appellant/petitioner Mario Reyes for conviction of a felony in a “secondary offense” while on bail on a felony in a “primary offense,” when the primary offense is settled by a no contest plea to a misdemeanor? Based on language in People v. Walker (2002) 29 Cal.4th 577 (Walker), we hold the two-year enhancement under section 12022.1 does not apply when the primary offense is reduced to a misdemeanor and resolved by a plea of no contest.

PENAL CODE SECTION 12022.1

Section 12022.1 creates an enhancement for persons convicted of a felony while released on bail or on their own recognizance on a felony charge. “Any person arrested for a secondary offense that 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, which shall be served consecutive to any other term imposed by the court.” (§ 12022.1, subd. (b).) The statute provides specific definitions of primary and secondary offenses: “(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 prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. In cases where the court has granted a stay of execution of a county jail commitment or state prison commitment, ‘primary offense’ also means a felony offense for which a person is out of custody during the period of time between the pronouncement of judgment and the time the person actually surrenders into custody or is otherwise returned to custody.