P. v. Rafferty CA5

California Court of Appeal Jun 17, 2013 No. F064341Unpublished

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Holding. The court held that a defendant has no constitutional right to a jury trial on an on-bail enhancement under Penal Code section 12022.1, and that the defendant forfeited any statutory right to a jury trial by failing to object to the court trial.

Issues

Whether a defendant has a constitutional right to a jury trial on an on-bail enhancement under Penal Code section 12022.1.
Whether defense counsel provided ineffective assistance by stipulating to the truth of the on-bail enhancement.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Because section 12022.1 is an enhancement statute that, like the foregoing examples, penalizes recidivist conduct and does not relate to the commission of either the primary or secondary offense, defendant is not entitled to a jury trial on its truth.”

“Rafferty had only a statutory right to a jury trial on the on-bail enhancement and that he forfeited this right by his failure to object to the discharge of the jury in this matter or to the commencement of the court trial”

Filed 6/17/13 P. v. Rafferty CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F064341 Plaintiff and Respondent, (Super. Ct. No. CRM008521) v.

GORDON RAFFERTY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Harry Jacobs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Cornell, J. and Peña, J.

In case No. CRM008521, a jury convicted appellant, Gordon Rafferty, of three counts of home invasion robbery (counts 1-3/Pen. Code, § 211),1and one count of false imprisonment (count 4/§ 236) and found true an allegation that a principal was armed with a handgun (§ 12022, subd. (a)(1)). In a separate proceeding, the court found true an on-bail enhancement (§ 12022.1, subd. (b)). On December 19, 2011, the court sentenced appellant to a 10-year term in the instant case and a concurrent two-year term in case No. CRM007430. On appeal, Rafferty contends: 1) the findings and sentence on the on-bail enhancement are invalid and must be reversed; and 2) he was denied the effective assistance of counsel. We affirm. FACTS The Substantive Offenses On February 2, 2010, Rafferty and at least two other men forced their way into a home in Winton. After binding and blindfolding the occupants, Rafferty and his confederates took numerous valuables from the residence, including a truck. At least one man was armed with a handgun. On February 8, 2010, in a recorded conversation, Rafferty told his ex-wife, ―I got involved in somethin[g] I shouldn‘t have.‖ He also admitted being present during the home invasion robbery and restraining the victims with duct tape and zip ties. The On-Bail Enhancement The on-bail enhancement was included in each count of the information and it alleged that Rafferty committed the underlying offense while released on bail or on his own recognizance in case No. CRM007430. On August 17, 2010, the court granted defense counsel‘s request to bifurcate the trial of the on-bail enhancement.

P. v. Rafferty CA5

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