Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC142383A
Margulies, J.
Defendant was convicted of driving on a suspended license, sale of narcotics, and failure to appear. The jury also found to be true enhancement allegations that defendant was on bail at the time he committed the latter two offenses. Defendant argues that the trial court erred in failing to strike one of these enhancements after the offense for which he was on bail was dismissed and in failing to give a unanimity instruction with respect to a second enhancement allegation. We affirm.
I. BACKGROUND
Defendant was charged in an amended information with two counts of selling methamphetamine. (Health & Saf. Code, § 11379, subd. (a); counts 1 and 3.) As to the second charge, count 3, it was alleged as an enhancement that at the time defendant committed the offense, he had been released on bail in connection with the offense charged in count 1. (Pen. Code, § 12022.1, subd. (b).) Defendant was also charged with six counts of driving with a suspended license (Veh. Code, § 14601.1, subd. (a); counts 2, 4, 5, 6, 9 and 11), one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 7), one count of possession of drug paraphernalia (Health & Saf. Code, § 11364; count 8), and one count of failure to appear while on bail. (Pen. Code, § 1320.5; count 10.) Both the possession charge, count 7, and the failure to appear charge, count 10, alleged as enhancements that at the time defendant committed the offenses he was released on bail. (Pen. Code, § 12022.1, subd. (b).) Count 7 alleged that defendant was on bail for the offenses charged in counts 1 and 3, while count 10 contained two separate “on bail” enhancement allegations, one regarding the offenses charged in counts 1 and 3 and the other the offense charged in count 7.
After a trial, the jury convicted defendant on the second of the drug sale charges (count 3) and found true the enhancement allegation that he was released on bail for the charge in count 1 at the time of commission. However, the jury was unable to reach a verdict on the first drug sale charge (count 1), which was ultimately dismissed on motion of the prosecution. The jury convicted defendant on five charges of driving on a suspended license (counts 2, 4, 5, 6, and 11) and acquitted him of one (count 9). The jury also acquitted defendant on the drug possession charge (count 7), and the court dismissed the charge of possession of drug paraphernalia. Finally, the jury convicted defendant on the failure to appear charge (count 10) and found true the two associated enhancement allegations.
We provide no account of the evidence adduced at trial because it has no bearing on the claims raised by defendant on this appeal.
The trial court suspended imposition of sentence on each count and placed defendant on five years’ probation, on condition that he serve two years six months in jail.
II. DISCUSSION
A. The Count 3 Enhancement Allegation
Defendant first argues that the trial court erred in failing to strike the “on bail” enhancement of count 3, since he was never convicted of count 1, the charge for which he had been released from custody at the time he committed the offense charged in count 3.
Penal Code section 12022.1 requires the court to impose an additional sentence of two years when a defendant commits a felony, referred to by the statute as a “secondary offense,” while released from custody in connection with an earlier felony, referred to as a “primary offense.” (Pen. Code, § 12022.1, subds. (a)(1)–(2), (b).) Subdivision (d) of the statute instructs the court that whenever a defendant is convicted on a secondary offense and the enhancement is found true before the defendant is convicted on the primary offense, “the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense . . . . If the person is acquitted of the primary offense the stay shall be permanent.”
As the statutory language implies, an enhancement under Penal Code section 12022.1 can be imposed only if the defendant is actually convicted of the primary offense. (In re Jovan B. (1993) 6 Cal.4th 801, 814.) Nonetheless, a jury that considers an enhancement allegation under section 12022.1 is asked only to determine whether, at the time the secondary offense was committed, the defendant was released from custody on the primary offense. Conviction on the primary offense is not considered an element of the enhancement, although such conviction must be proven before the enhancement can be imposed. (People v. Smith (2006) 142 Cal.App.4th 923, 935.)
In People v. Meloney (2003) 30 Cal.4th 1145 (Meloney), the Supreme Court addressed various procedural issues associated with Penal Code section 12022.1. Despite the apparently mandatory language of section 12022.1, subdivision (b), the court held that a section 12022.1 can be stricken “ ‘in the furtherance of justice’ ” under Penal Code section 1385, when appropriate. (Meloney, at p. 1155.) In addition, the court held that when a court sentences a defendant on a secondary offense prior to trial on a primary offense, the sentencing court may either (1) stay imposition of the section 12022.1 enhancement pending conviction on the primary offense or (2) impose the section 12022.1 enhancement but stay execution of the enhancement pending primary offense conviction. (Id. at pp. 1157–1162.)
Citing Meloney, defendant argues that the trial court erred in failing to strike the Penal Code section 12022.1 enhancement. We find no basis for reversal because, among other reasons, striking the enhancement was superfluous here, and therefore was harmless under either standard for harmless error. By the time defendant was sentenced on the secondary offense (count 3), the primary offense (count 1) had already been dismissed by the court. Upon the dismissal of count 1, sentence on the count 3 enhancement was permanently stayed by operation of section 12022.1, subdivision (d). No further action by the court was required to ensure that the section 12022.1 enhancement will never be imposed. Accordingly, any error in failing to strike this enhancement was harmless, since subdivision (d) already precludes any enhancement of sentence on the basis of this allegation, regardless of whether it is stricken.
Defendant’s argument that it is possible this could change in the future is mere speculation.
B. The Count 10 Enhancement Allegation
Defendant also argues that the jury’s finding that the first enhancement allegation under count 10 was true should be reversed because no unanimity instruction was given.
If an indictment charges one criminal act but the evidence tends to show the commission of more than one, either the prosecution must elect among these acts or the court must deliver a unanimity instruction, telling the jury that all must agree that the defendant committed the same criminal act. (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) California courts disagree as to the standard for harmless error applicable to the failure to give a required unanimity instruction. Without taking a position, we apply the more stringent standard of harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 186.)
The first enhancement allegation under count 10 charged that defendant was on bail for the offenses charged in counts 1 and 3 at the time he failed to appear. Defendant argues that the unaninimity instruction was necessary in these circumstances because some jury members could have found defendant on bail for the count 1 offense and others the count 3 offense.
Assuming for purposes of argument that the unanimity instruction was required, we find no basis for reversal because any error was harmless. As noted above, a jury that considers an enhancement allegation under Penal Code section 12022.1 is asked only to determine whether, at the time the secondary offense was committed, the defendant was released from custody on a primary offense. (People v. Smith, supra, 142 Cal.App.4th at p. 935.) At trial, the certified records of defendant’s various prosecutions were introduced at trial. The records from People v. Deltoro (Super. Ct. Marin County, 2005, No. SC137584A), the prosecution on which count 3 is based, demonstrate that defendant was arrested on September 17, 2004. On October 1, 2004, defendant was released on bail. The failure to appear alleged in count 10 occurred on July 1, 2005, prior to trial on count 3. At the time of the failure to appear, therefore, defendant was necessarily on bail release for the offense charged in count 3. Because there was no evidence introduced at trial suggesting that these records were in any way unreliable, it is essentially undisputed that at the time defendant committed the offense in count 10, he was released on bail for the offense charged in count 3. Accordingly, there is no basis for a reasonable doubt that the enhancement allegation with respect to count 3 is true, and any failure to give the unanimity instruction was harmless.
Because defendant was convicted on count 3, the allegation will support the imposition of an “on bail” enhancement in the event defendant’s probation is revoked and sentence is later imposed.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Swager, J.