F 17.24.1

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F 17.24.1 n1 Proof of Corpus Delicti Independent of Extrajudicial Statements: Inapplicable to Sentencing Enhancements.

Because an enhancement does not define a crime, but merely imposes additional punishment for a crime when certain circumstances are found to exist (People v. Best (83) 143 CA3d 232, 236 [191 CR 614], the corpus delicti rule would not serve its purpose by application to an enhancement. (People v. Shoemaker (93) 16 CA4th 243, 255-56 [20 CR2d 36].)

F 17.24.1 n2 Enhancement For Offense Committed On Bail (PC 12022.1).

A. Applicability to Juvenile Proceedings: Bail enhancement is applicable to a juvenile proceeding. (In re Jovan (93) 6 C4th 801, 820 [25 CR2d 428].)

B. Multiple Offenses: PC 12022.1 provides penalty enhancement for offenses committed while the defendant is on bail. There is a conflict in authority as to whether more than one such enhancement may be found and imposed if the defendant commits more than one offense while on bail. People v. Nguyen (88) 204 CA3d 181, 195-96 [251 CR 40] and People v. Mackabee (89) 214 CA3d 1250, 1261-62 [263 CR 183], held that only one enhancement may be imposed. People v. Rojas DEPUBLISHED (90) 224 CA3d 1126 [274 CR 445] disagreed with Nguyen and Mackabee and held that each time the defendant committed a felony while on bail for another felony he or she could properly receive an additional consecutive enhancement under PC 12022.1.

By decertifying Rojas for publication the Supreme Court left intact the Nguyen and Mackabee decisions as the sole authority on this issue.

C. Inapplicable to Federal Charge: In People v. Tovar DEPUBLISHED (92) 5 CA4th 318 [6 CR2d 761], the Court of Appeal held that PC 12022.1 does not apply to persons granted a prejudgment release by a federal court. (But see U.S. v. Kentz (9th Cir. 2001) 251 F3d 835, 839-40 [court’s failure to provide defendant with specific notice in pretrial release order of enhanced penalty for conviction of offense committed while on release did not later preclude such enhancement under 18 USC 3147].)

D. No “Mental Element” Required: In People v. Watkins (92) 2 CA4th 589, 593-95 [3 CR2d 563], the court of appeal rejected the defendant’s argument that his mistaken belief that he or she was no longer on bail for the pending case was a defense to the PC 12022.1 enhancement. In so doing, the court of appeal held that the statute deters most effectively when liability for his violation is strict, and when punishment is imposed without regard to the defendant’s subjective belief.

E. Absent A Felony Conviction For Earlier Crime, Sentence Enhancement For Current Crime Improper: PC 12022.1(a)(1)(2) employs special terminology: “Primary offense” means a felony offense for which the offender is on bail or released on OR. “Secondary offense” refers to the felony committed while the defendant is on bail for the primary offense. If the person “is convicted of a felony for the primary offense … and is convicted of a felony for the secondary offense,” the sentence for the secondary offense is to run consecutive to the primary sentence. (PC 12022.1(e) [emphasis added].) Occasionally, a defendant may be convicted of the secondary crime prior to trial on the primary offense. In such instances, imposition of the enhancement “shall be stayed pending imposition of the sentence for the primary offense.” (PC 12022.1(d).)

In In re Ramey (99) 70 CA4th 508 [82 CR2d 849] the defendant was originally charged with a felony, then committed another felony while on bail for the first. The original charge was reduced to a misdemeanor, to which Ramey pled guilty. The Ramey court held that absent a felony conviction for the original crime, the sentence enhancement should have been permanently stayed.

F. Failure To Appear. On-bail enhancement (PC 12022.1) may be imposed on a sentence for failure to appear while on bail. (PC 1320.5.) (People v. Walker (2002) 29 C4th 577 [128 CR2d 75].)

F 17.24.1 n3 Probation Denial Allegations: Transportation Of Cocaine Insufficient.

PC 1203.073 limits probation eligibility for various controlled substance offenses specified in the statute. In People v. Bartlett (90) 226 CA3d 244, 248-53 [276 CR 460], the court considered whether the probation limitation provisions of PC 1203.073 apply to a conviction of transportation of cocaine. After a thorough analysis of the language of the statute and its legislative history, the court concluded that PC 1203.073(b)(1) applies only to the possession for sale of cocaine and not to a conviction of transportation of cocaine even though both sale and transportation are proscribed by H&S Code 11352.

Hence, the jury may not return a special allegation limiting probation eligibility pursuant to this provision when the charge is transportation of cocaine. (Compare PC 1203.073(b)(6) which limits granting probation when a defendant’s conviction involves “transporting” for sale “cocaine base” (crack cocaine).)

NOTE: See FORECITE F 12.01 n6 regarding constitutional challenge to cocaine base to statutes which impose greater punishment for cocaine base substance offenses.

F 17.24.1 n4 Habitual Offender: Prospective Charging Of Enhancement Not Permitted.

In People v. Ringelberg DEPUBLISHED (90) 224 CA3d 1300 [274 CR 532], the court concluded that special verdicts are only permissible if, one, they are in response to an allegation properly charged or, two, they are authorized by statute. (Id. at 1306.) Accordingly, a special verdict may not be obtained regarding a defendant’s use of a deadly or dangerous weapon when the purpose of the special finding is simply to qualify the defendant prospectively for the habitual offender provisions of PC 667 and PC 1192.7 should the defendant be prosecuted again in the future.

Subsequent published cases have held that a finding or admission of the factual predicate to the enhancement may stand but the court’s legal conclusion (e.g., that the offense is a “serious felony”) may not. (See People v. Sanchez (91) 230 CA3d 768, 773 [281 CR 459]; People v. Boyajian (91) 228 CA3d 771, 775 [279 CR 359].)

F 17.24.1 n5 Hate Crimes Enhancement: In Concert/Aiding And Abetting.

PC 422.75(b) provides for a sentence enhancement if the defendant commits a “hate” crime “in concert with another person either personally or by aiding and abetting another person ….” This is essentially the same “in concert” language used in PC 264.1 and PC 286(d) pertaining to rape, etc. (See also FORECITE F 10.01b.)

See FORECITE F 9.95 n1.

F 17.24.1 n6 Kidnap to Commit Sex Offense Enhancement.

Logically, the standard for aggravated kidnapping should apply to the kidnap to commit a sex offense enhancement under PC 667.8 (See FORECITE F 9.52.1 n3). Furthermore, the jury should be instructed to first determine whether a simple kidnap has been proven (i.e. whether the asportation was for a substantial distance) and then determine whether the kidnapping was aggravated. (See FORECITE F 9.52.1 n4.) However, People v. Johnson (95) 31 CA4th 1041, 1046-47 [37 CR2d 498] held that the asportation standard for simple kidnapping applies to PC 667.8 and that the underlying kidnapping need not be charged nor proven.

F 17.24.1 n7 Commission of Additional Crime While Dealing with Assault Weapons: Facts Must be Pled and Proved.

PC 12280 proscribes the manufacturer, distribution, transportation, importation, sale, possession, or lending of assault weapons. PC 12280(c) imposes an additional consecutive term of one year for any person who “commits another crime” while violating PC 12280. In People v. Jiminez (92) 8 CA4th 391 [10 CR2d 281], the court held that the facts giving rise to a PC 12280(c) enhancement must be pled and proven.

F 17.24.1 n8 Enhancement for Victim Over 65 Years Old, Etc. Not Unconstitutionally Vague (PC 667.9).

In People v. Smith (93) 13 CA4th 1182, 1186-90 [16 CR2d 820], the court rejected an argument that the “reasonably should have known” language is unconstitutionally vague.

F 17.24.1 n9 Enhancements: Double Jeopardy/Collateral Estoppel.

[See FORECITE EA II(C).]

F 17.24.1 n10 Multiple Convictions From Single Sentencing as One Prior Term.

Note that multiple convictions and sentences constitute only one “prior separate term” regardless of whether the priors were served concurrently or consecutively and regardless of whether they resulted from a single sentencing proceeding or from separate proceedings as long as the prison term is uninterrupted. (People v. James (80) 102 CA3d 728, 732 [162 CR 548]; People v. Burke (1980) 102 CA3d 932, 943 [163 CR 4].) However, conviction and sentence for in-prison offenses may constitute a separate term. (People v. Carr (88) 204 CA3d 774, 780 [251 CR 458]; People v. Cardenas (87) 192 CA3d 51, 56 [237 CR 249].)

F 17.24.1 n11 Proof of Prior.

[See FORECITE EA V(B)–(D).]

F 17.24.1 n12 Halfway House As Prison Term.

The question of whether a prior separate term arises from a crime committed while the defendant is living in a state prison halfway house is unresolved. (But see People v. Collins REV GTD (85) 214 CR 388, and issue not reached in subsequent Supreme Court decision.)

For comprehensive digest of PC 667.5 cases see Cutler, Determinate Sentence Law, Central California Appellate Program Publication, pp. 109-113 (1990).

F 17.24.1 n13 Chronology Or Procedural Sequence of Prior.

See FORECITE F 17.25 n7.

F 17.24.1 n14 Application Of “Temporary Safety” Rule To Enhancements.

See FORECITE F 8.21.1 n4.

F 17.24.1 n15 Three Strikes.

See FORECITE EA VI(A) and EA VI(B).

F 17.24.1 n16 Enhancements: Previous Vehicle Theft Enhancement (PC 666.5) Does Not Include Taking Vehicle Without Intent To Steal.

PC 666.5(a) mandates an enhanced punishment for persons who have previously been convicted of “felony vehicle theft under [VC] 10851″ or felony grand theft involving an automobile under the Penal Code, and who then are subsequently convicted of “any of these offenses.” People v. McGowan DEPUBLISHED (96) 42 CA4th 740 [49 CR2d 866] held that this enhancement requires a finding that the prior offense included an intent to steal. (But see People v. Carter (96) 48 CA4th 1536 [56 CR2d 309] [intent to permanently deprive not required].) Therefore, when the prior offense is a violation of VC 10851 — which can be violated by taking or driving a vehicle without an intent to steal — the jury must be instructed to find that the prior involved an intent to steal the vehicle before finding the enhancement to be true. [A copy of the McGowan opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-208.]

F 17.24.1 n17 Enhancement For Shooting From Motor Vehicle (PC 12022.55).

In People v. Bostick (96) 46 CA4th 287 [53 CR2d 760], the court rejected the defendant’s argument that PC 12022.55 requires a finding that the shooting occurred from a vehicle which was involved in an actual drive-by on a public street or highway. Instead, the court held that the enhancement applied even if the car was parked. (But see dissent of Kline, P.J.)

F 17.24.1 n18 THIS ENTRY HAS BEEN MOVED TO F 17.24.2 n1.

F 17.24.1 n19 THIS ENTRY HAS BEEN MOVED TO F 17.24.2 n2.

F 17.24.1 n20 “One Strike And You’re Out”: PC 667.61 — Requirement Of Specified Intent When Burglary Is Predicate Offense.

PC 667.61 provides for a sentence of 25 years to life — even without any prior convictions — for a rape committed during the commission of a first-degree burglary. If the burglary was committed with the intent to commit forcible rape or one of the other violent sex offenses listed in PC 667.61(c), the defendant is not eligible for release on parole for 25 years. (PC 667.61(a)(d)(4).) If the burglary was committed with an intent other than to commit a forcible rape or one of the other violent sex offenses listed in PC 667.61(c) the defendant is eligible for parole after 15 years. (PC 667.61(b)(e)(2).) Accordingly, in a prosecution involving this statute, the jury must be instructed that if it found the defendant guilty of burglary and forcible rape it must determine whether the defendant entered the premises with the intent to commit a forcible rape. The failure to do so is error. (People v. Estrada (97) 57 CA4th 1270, ____ [67 CR2d 596].)

F 17.24.1 n21 “One Strike And You’re Out” (PC 667.61).

1. Duty To Instruct On Elements Of “One Strike” Circumstances. People v. Jones (97) 58 CA4th 693, 709 [68 CR2d 506] held that the trial court has a sua sponte duty to instruct on the elements of the “one strike” circumstances even though the “one strike” law is a “penalty provision” and not a “true enhancement.” The trial court’s duty to instruct upon “general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case” applies regardless of whether the instruction pertains to a crime, a defense, an enhancement, or a “penalty provision.” (Ibid.; but see People v. Palamore (2000) 79 CA4th 1290, 1296 [94 CR2d 784] [instruction on special allegation of sex offense (PC 667.61(b), (c), (e)(2)) doesn’t have to inform jury that commercial establishment must be closed to public when burglary is committed].)

[See Brief Bank # B-864 for briefing on this issue.]

2. Distinction Between PC 208 and PC 209. “Kidnapping For Robbery…requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself.” (People v. Rayford (94) 9 C4th 1, 12 [36 CR2d 317].) By contrast, the aggravated kidnapping circumstance of the one-strike law requires movement of the victim which substantially increases the risk of harm over and above that necessarily present in the underlying sexual offense. (PC 667.61(d)(2)); see, People v. Jones (97) 58 CA4th 693, 712 [68 CR2d 506].)

3. “One Strike And You’re Out” (PC 667.61): Impact Of Probation Qualification On Status Of PC 288(a) Prior As Strike. The One‑Strike sex law, PC 667.61, provides that a defendant convicted of a specific offense with a specified circumstance shall be punished by life imprisonment with parole eligibility only after serving 25 years. On the list of specific offenses is PC 288(a), “unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.” PC 1203.066(c) permits defendants who violated 288(a) to get probation if the defendant is a family member of the victim, there’s no risk of harm, etc. However, the statute fails to specify whether this “unless” clause applies when the PC 288(a) is the current offense and/or a prior strike.

4. Interplay Of “One Strike And You’re Out” (PC 667.61) And “Three Strikes.” People v. Acosta (2002) 29 C4th 105 [124 CR2d 435] held as follows:

1. Option 1 of the Three Strikes Law requires tripling of a minimum period of parole ineligibility to calculate the minimum term of the indeterminate life sentence.

2. The Three Strikes Law applies notwithstanding the defendant’s eligibility for sentencing under the One Strike Law.

3. Whether a prior conviction treated as a strike may also serve as the basis for referencing the One Strike law in calculating the minimum term and for imposing a sentence enhancement under section 667(a).

5. Three Strikes Life Sentence For Failing To Update Sex Offender Registration Information Within 5 Days Of Birthday As Cruel And Unusual Punishment. People v. Carmony (2005) 127 CA4th 1066 held that a 25‑to‑life sentence for a most minimal of violations of the sex registration law (not re‑registering within 5 days of his birthday after he did register as required) violates the cruel and unusual punishment clauses of the U.S. and California Constitutions. There must be some substantial current offense to trigger Three Strikes.

F 17.24.1 n22 HIV Enhancement (PC 12022.85).

Guevara v. Superior Court (98) 62 CA4th 864 held that the PC 12022.85 enhancement, which applies to certain sex offenses when the defendant knows he or she is HIV positive, is not unconstitutional. (See also Roman v. Superior Court (2003) 113 CA4th 27.)

F 17.24.1 n23 Improper To Refer To The Prosecution as “The People.”

Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”

F 17.24.1 n24 Immediate Personal Possession Of Weapon While Under The Influence (HS 11550(e)): Definition Of “Immediate Personal Possession.”

People v. Pena (99) 74 CA4th 1078 [88 CR2d 656] held that when a firearm is in a toolbox in the back of the defendant’s pick-up it is not in the “immediate personal possession” of the defendant as defined in HS 11550(e).

F 17.24.1 n25 Appellate Challenge To Out-Of-State Serious Prior Based On Failure To Establish Which Theory Was The Predicate For The Prior.

When an out of state prior can be committed in more than one way, the prosecution is obligated to prove that it was committed in a manner that makes it a serious prior under PC 667. (See People v. Avery (2002) 27 C4th 49, 53 [115 CR2d 403] [“…the question is whether [the other state’s crime] under [the other state’s] law necessarily involves conduct that would qualify as [a “serious felony”] under California law”].) [See Opinion Bank # O-265 for an unpublished opinion reversing on this issue.]

F 17.24.1 n26 THIS ENTRY HAS BEEN MOVED TO F 17.24.2 n3.

F 17.24.1 n27 THIS ENTRY HAS BEEN MOVED TO F 17.24.2 n4.

F 17.24.1a THIS ENTRY HAS BEEN MOVED TO F 17.24.2a.

F 17.24.1b

“Hate Crimes” Enhancement

(PC 422.75)

*Re: CJ 17.24.1:

See FORECITE F 9.95 n1.

F 17.24.1c

Habitual Offender Violent Offenses

(PC 667.7(a))

*Add to CJ 17.24.1:

The information alleges that defendant is a “habitual offender” within the meaning of PC 667.7(a). In order to find this allegation true, the following elements must be proved:

[1. The defendant has been convicted in this proceeding of a felony involving the infliction of great bodily injury as provided in PC 12022.7.]

[2. The defendant, with specific intent to do so, personally used force which was likely to produce great bodily injury during the commission of a felony for which [he] [she] has been convicted in this proceeding.]

3. The defendant has served two prior separate prison terms for the following crimes: __________ [(insert appropriate crimes from PC 667.7(a)].

A “prior separate prison term” means a continuous, completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment or revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.

“Great bodily injury” as used in this instruction means a significant or substantial physical injury. Minor or moderate injuries of a temporary nature do not constitute great bodily injury.

The People have the burden of proving the truth of all the above elements of the habitual offender allegation. If you have a reasonable doubt that the allegation is true, you must find it to be not true. You will include a special finding on this allegation in your verdict, using a form that will be supplied for that purpose.

Points and Authorities

PC 667.7(a) requires either a GBI (PC 12022.7) finding or a specific intent to inflict great bodily injury as a necessary element of the habitual offender finding. (People v. Santos (90) 222 CA3d 723, 742 [271 CR 811].) Moreover, in People v. Guitierrez (94) 23 CA4th 1576, 1585 [23 CR2d 897], the Court of Appeal disagreed with People v. Santos (90) 222 CA3d 723, 742 [271 CR 811], holding that the intent required in the use of “force … likely to produce great bodily injury” (PC 667.7(a)) is a general intent crime.

Great bodily injury is defined in CJ 17.20.

“Prior separate prison term” is defined in PC 667.5(f).

Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)

F 17.24.1d

Habitual Offender Allegation: Prior Robbery Conviction

(PC 667.7)

*Modify CJ 17.24.1 as follows: [This instruction should follow or be inserted into FORECITE F 17.24.1c whenever one of more of the alleged priors is a robbery]:

As part of the habitual offender allegation, the information charges that the defendant was previously convicted of a robbery involving the use of force or a deadly weapon. In addition to making the other findings required by the preceding instruction, you must also determine whether any prior robbery conviction was based upon the use of force or a deadly weapon.

A robbery conviction under PC 211 may be based upon a taking by either force or fear. However, for purposes of the habitual offender allegation in this case, you are required to determine not only whether the defendant was previously convicted of robbery, but also whether that robbery was based on use of force or a deadly weapon rather than upon fear alone.

The People have the burden of proving beyond a reasonable doubt that any prior robbery conviction involved the use of force or deadly weapon. Thus, if you find that the defendant was previously convicted of robbery and served a prison term for that offense, but have a reasonable doubt whether the robbery involved the use of force or a deadly weapon, you must find the habitual offender allegation not true.

You will include a special finding on this allegation in your verdict, using a form which will be provided.

Points and Authorities

PC 667.7(a); People v. Brookins (89) 215 CA3d 1297, 1303 [265 CR 240].

NOTES

While robbery is the prior offense which appears to have generated the most litigation under PC 667.7(a), counsel should be alert to other respects in which the PC 667.7(a)’s listing of prior offenses may depart from the standard statutory definitions of those crimes and thus require additional findings. In particular, like the “serious felony” enhancement statutes (PC 1192.7(c), PC 667, PC 667.7(a) defines sexual offenses more narrowly than the respective statutes establishing those offenses. Unlike PC 261, PC 286, PC 288a(c), and PC 289(a), PC 667.7(a)(1) does not apply to a sexual offense accomplished by means of a threat of future retaliation against the victim or another person. Consequently, whenever the PC 667.7(a)(1) allegation is based in part on one of those sexual offenses, FORECITE F 17.25i should be delivered to require the jury to find that the prior conviction was based upon use of force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person. (Unlike the serious felony statute (PC 1192.7(c)(3)), the habitual offender enhancement (PC 667.7(a)) also applies this limitation to prior rape convictions.)

Chronology Of The Priors: See FORECITE F 17.25 n7.

F 17.24.1e

Drug Sale Offenses: School Proximity Enhancement

(HS 11353.6)

*Add to CJ 17.24.1:

It is alleged [in Count _____] that the crime of which the defendant is accused took place upon the grounds of or within 1,000 feet of a public or private elementary, vocational, junior high, or high school during school hours. If you find the defendant guilty of the offense charged [in Count _____], you must determine whether this allegation is true. In order to find this allegation true, the following elements must be proved:

1. The defendant was 18 years of age or older at the time of the offense;

[2. The offense took place upon the grounds of a public or private elementary, vocational, junior high, or high school;] or

[2. The offense took place in a public area or in a business establishment where minors are legally permitted to conduct business, located within 1,000 feet of a public or private elementary, vocational, junior high, or high school;]

3. The offense took place during hours that the school was open for classes or class-related programs or at a time when minors were using the facility where the offense occurred.

The People have the burden of proving each of these elements beyond a reasonable doubt. You will include a special finding on this allegation in your verdict, using a form which will be provided.

Points and Authorities

A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; see also FORECITE PG VII(C)(32).)

NOTES

The 1992 amendment of HS 11353 (eff. Jan. 1, 1993) limited the scope of the enhancement by restricting it to school hours and by limiting the 1,000 foot zone to public areas and commercial establishments (e.g., stores, etc.) which minors may legally patronize. The school hours limitation effectively abrogates the expansive reading given the former version of the statute in People v. Williams (92) 10 CA4th 1389, 1393-95 [13 CR2d 379], as modified, 11 CA4th 443. The definition of the 1,000 foot zone (HS 11353.6(g)) appears to exclude sales which occur in purely private places (e.g., an apartment) or in “adults only” commercial establishments near schools.

Although the amendment only became effective on January 1, 1993, trial and appellate counsel should also urge the application of the amended version of the statute to any pre-1992 offense, where the judgment is not yet final on appeal. Under the “abatement” doctrine (In re Estrada (65) 63 C2d 740 [48 CR 172]), defendants who have not yet come to trial or whose convictions are not yet final are entitled to the benefit of this ameliorative legislation since the amendment was enacted without any explicit “savings clause.” (See People v. Vasquez (92) 7 CA4th 763 [9 CR2d 255], giving retroactive effect, under the abatement doctrine, to legislation which effectively removed pellet guns from the firearm use enhancement.)

By its terms, this enhancement applies only to sale, possession for sale, manufacturing, or conspiracy offenses involving base cocaine (HS 11054(f)(1)) or heroin (HS 11054(c)(11)). Heroin was only added to the statute by the 1992 amendment. Consequently, while the ameliorative aspects of those amendments should be applied retroactively under the abatement rule, the ex post facto doctrine bars imposition of the enhancement for any pre-1993 heroin offense. (See generally Tapia v. Superior Court (91) 53 C3d 282, 297-99 [279 CR 592].)

In addition to the basic enhancement (of 3, 4 or 5 years) established by HS 11353.6(b), HS 11353.6(c) of the statute authorizes a further, consecutive enhancement where the underlying offense “involves a minor who is at least four years younger than” the defendant. Where the information pleads an allegation under HS 11353.6(c), the above instruction should be supplemented with a paragraph requiring the jurors to find these additional facts beyond a reasonable doubt. (Regarding the need to plead and prove the enhancement, see also People v. Wims (95) 10 C4th 293 [41 CR2d 241]; People v. Winslow (93) 40 CA4th 680, 688 [46 CR2d 901]; People v. Marzet (97) 57 CA4th 329, 338 [67 CR2d 83] [overt act alleged in support of conspiracy must have occurred in a “public area”].)

HS 11353.6(b) does not require knowledge that a school is within 1,000 feet and intent to sell or possess drugs for sale near the school. The court’s refusal of an instruction on such elements is not error. (People v. Atlas (98) 64 CA4th 523 [75 CR2d 307].)

“Public Place” as element of the charge.

The driveway of a private residence which is readily accessible to the public may be a public area within the meaning of HS 11353.6 (school proximity enhancement) depending on the circumstances. However, the trial court must instruct the jury to determine whether or not the offense occurred in a public area. (People v. Jimenez (95) 33 CA4th 54 [39 CR2d 12].)

Applicability To Conspiracy: The school-proximity enhancement (HS 11353.6) applies to a conspiracy conviction so long as the overt act taken in furtherance of the conspiracy occurred in a public area within one thousand feet of a school. The fact that the narcotics were being held and the transaction was to occur in a private residence is not dispositive. (People v. Marzet (97) 57 CA4th 329, 338 [67 CR2d 83].)

Whether statute requires or permits enhancement when children are present but school is closed. (See People v. Townsend (98) 62 CA4th 1390 [73 CR2d 438].)

[RESEARCH NOTES: See Annotation, Validity, construction, and application of state statutes prohibiting sale or possession of controlled substances within specified distance of schools, 27 ALR5th 593 and Later Case Service; see also, Annotation, Measurement of distances for purposes of enactment prohibiting sale, or license for sale, of intoxicating liquor within given distance from church, university, school, or other institution or property, 4 ALR3d 1250 and Later Case Service; Annotation, Validity and construction of 21 USCS ‘860 enhancing penalty for drug distribution if offense occurs within 1,000 feet of school, college, or university, 108 ALR Fed 783 and Later Case Service.]

F 17.24.1f

Tying Or Binding Enhancement:

Limited To Acts Which Render The Victim More Vulnerable

(PC 667.61(e)(6))

*Add to CJ 17.24.1:

It is alleged that in the commission of the ____________ (Offense Alleged For PC 667.61 Enhancement), the defendant tied or bound [the victim] [and] [or] [another person].

If you find the defendant guilty of the ____________ (Offense Alleged For PC 667.61 Enhancement), you must decide whether the prosecution has proven the truth of this allegation beyond a reasonable doubt.

However, even if the allegation is proven, the prosecution must also prove that the act of tying or binding of [the victim] [and] [or] [another person] rendered that person particularly vulnerable. Unless the prosecution proves beyond a reasonable doubt that the victim was made more vulnerable by such tying or binding, you must find the allegation to be not true.

Points and Authorities

People v. Campbell (2000) 82 CA4th 71, 80 [97 CR2d 830] [“[a] reasonable and practical construction of the phrase ‘tying or binding’ necessarily includes only those actions which render a victim more particularly vulnerable”].