People v. Washington CA6

Filed 6/12/23 P. v. Washington CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050045 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1801278, C1903826, C1908543) v.

MARCUS L. WASHINGTON,

Defendant and Appellant.

In April 2020, defendant Marcus L. Washington was sentenced to seven years in prison. Two of these years were due to a sentencing enhancement for committing a felony while on bail. Washington contends that this “on bail” enhancement should be vacated because the trial court did not properly consider dismissing it under Penal Code section 1385. (Subsequent undesignated statutory references are to the Penal Code.) The Attorney General argues that Washington forfeited this objection by not properly raising it in the trial court. We agree and, in any event, conclude that the trial court did not abuse its discretion by imposing the “on bail” enhancement. We therefore affirm the judgment. I. Background Between April and July 2019, Washington was charged in Santa Clara County in three separate cases. One case involved drug- and vehicular-related offenses, the second theft- and firearms-related offenses, and the third false impersonation. In connection with

the false impersonation charge, the information alleged that Washington was on bail when he committed the offense, and it sought an “on bail” sentencing enhancement under section 12022.1. In August 2019, Washington pleaded no contest to the charges and admitted the allegations in all three cases, and he was placed on probation for three years. While on probation, Washington committed additional offenses in both Stanislaus and Santa Clara Counties, for which he was sentenced to a total of 11 years and eight months imprisonment. Afterwards, Washington was transferred to Santa Clara County for sentencing on his 2019 offenses. In his sentencing memorandum Washington argued that in light of the more than eleven years that he was already serving, the sentences for his 2019 offenses should be made concurrent to his existing sentences. In so doing, Washington cited rule 4.423(b)(2) of the California Rules of Court, which recognizes “a mental or physical condition that significantly reduced culpability for the crime” as a mitigating circumstance. Washington’s sentencing memorandum did not mention section 1385 or otherwise ask that the “on bail” enhancement be dismissed. On April 22, 2022, Washington appeared for sentencing in Santa Clara County. His father, mother, and brother spoke on his behalf and asked that he not be imprisoned for a long time. Arguing that imposing consecutive terms on top of the existing lengthy sentences already received would be excessive, defense counsel similarly asked the court “to impose no additional time.” During the sentencing hearing, defense counsel also briefly referenced the “on bail” enhancement, noting that “the Court could stay punishment on the enhancement, which is an out-on-bail enhancement.” The prosecutor objected, asserting that “I don’t believe the Court has the authority under [section] 1385 to do so since Defendant has pled to it.”