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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


1      All further statutory references are to the Penal Code, unless otherwise indicated.


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       On October 28, 2011, after denying Rafferty‘s motion for a new trial, the court
turned to the on-bail enhancement and stated it believed the prosecutor was going to
submit evidence on the enhancement prior to Rafferty being sentenced. During a
discussion on the enhancement, the court took judicial notice that on March 9, 2010, in
case No. CRM007430, Rafferty entered a plea to possession of methamphetamine. It
also took judicial notice of the file in that case, including minute orders that showed that
in case No. CRM007430 Rafferty was released on his own recognizance when he
committed the underlying offenses in the instant case.2 Defense counsel then submitted
the matter. Although the court neglected to expressly find the on-bail enhancement true,
it then sentenced Rafferty to an aggregate term of 10 years that included a two-year on-
bail enhancement.
       On December 19, 2011, at a hearing that was scheduled to update Rafferty‘s
credits, the following colloquy occurred:

                ―THE COURT: [¶]… [¶] For the history of this case, it appears that
       for some reason the court trial on the [on-bail enhancement], was not heard
       or not recorded properly, and that‘s just the court trial that was stipulated
       that it could occur on [the on-bail enhancement]. … [¶] Now I understand
       there will be a stipulation by counsel that [the on bail enhancement] is true.
       [¶] [Defense Counsel] is that correct?

              ―[DEFENSE COUNSEL]: Yes. [¶] … [¶]

              ―[PROSECUTOR]: Yes, your Honor. We‘d stipulate as well.‖
       After Rafferty acknowledged he understood that with the stipulation the court
would find the enhancement true without a court trial, the court expressly found the on-
bail enhancement true.




2       Rafferty did not object to the discharge of the jury or to the commencement of the
court trial on the on-bail enhancement.


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                                      DISCUSSION
       Rafferty relies on Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]
to contend he had a constitutional right to a jury trial on the on-bail enhancement and that
defense counsel‘s stipulation to the truth of this enhancement was invalid because he did
not waive this right. Rafferty also contends his defense counsel provided ineffective
representation when he stipulated to the truth of the enhancement. We reject these
contentions.

               ―In Apprendi [v. New Jersey (2002)] 530 U.S. 466[, 120 S.Ct.
       2348], the court stated: ‗Other than the fact of a prior conviction, any fact
       that increases the penalty for a crime beyond the prescribed statutory
       maximum must be submitted to a jury, and proved beyond a reasonable
       doubt.‘ [Citation.]

               ―The California Supreme Court has ‗rejected a narrow or literal
       application of the [United States Supreme Court‘s] reference to ―the fact of
       a prior conviction.‖‘ (People v. Towne (2008) 44 Cal.4th 63, 79 ….) In
       Towne, the court held that the aggravating circumstances that a defendant
       ‗served a prior prison term‘ [citation], ‗was on probation or parole when the
       crime was committed‘ [citation], or whose ‗prior performance on probation
       or parole was unsatisfactory‘ [citation] may be determined by a judge rather
       than a jury. [Citation] In People v. McGee (2006) 38 Cal.4th 682 …, the
       court held that, consistent with Apprendi, a trial court may determine
       whether a prior conviction qualified as a conviction of a serious felony.
       [Citation.] In People v. Black (2007) 41 Cal.4th 799 …, the court held that
       the trial court, not the jury, decides whether a defendant‘s prior convictions
       are numerous and of increasing seriousness [citation]. [Citation.]

              ―Similarly, the appellate court in People v. Thomas (2001) 91
       Cal.App.4th 212 … held that the court, not a jury, determines whether a
       defendant has served a prior prison term within the meaning of section
       667.5, subdivision (b). [Citation.] Thomas was cited with approval in
       Black, supra, 41 Cal.4th at page 819, Towne, supra, 44 Cal.4th at pages 79-
       80, and McGee, supra, 38 Cal.4th at pages 700-702.

               ―The bases for the above holdings were, in general, that the
       aggravating factors were all related to ‗the fact of a prior conviction‘ by
       their recidivistic nature, rather than to the conduct involved in the charged
       offense(s), and that such factors could be proven by reliable documentation,
       such as court records. [Citations.]


                                             4
                ―Section 12022.1 is a recidivist statute—it enhances punishment
       based upon the defendant‘s commission of another offense while on bail for
       a previous offense. (People v. Walker (2002) 29 Cal.4th 577, 589 … [‗a
       section 12022.1 enhancement turns on the status of a defendant as a repeat
       offender, not on what the defendant did when committing the current crime,
       i.e., secondary offense‘].)

              ―The only difference between a defendant who commits a felony
       offense while on probation or parole and a defendant who commits a felony
       offense while on bail for another felony offense is the timing. In the former
       circumstance, the prior conviction (primary offense) has already occurred.
       The distinction is insignificant because in the latter circumstance the
       defendant cannot be punished until he is convicted of the primary offense.
       Of course, in both circumstances, additional punishment requires a
       conviction of the second charged offense.

               ―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.‖ (People v. Johnson (2012) 208
       Cal.App.4th 1092, 1099-1100, fns. omitted.)
       In People v. French (2008) 43 Cal.4th 36, 46, the California Supreme Court held,
―The requirement of an express waiver applies to the constitutional right to a jury trial,
but not to jury trial rights that are established only by statute.‖
       Further, in People v. Vera (1997) 15 Cal.4th 269 (Vera) the defendant did not
personally waive his statutory right to a jury trial on a prior prison term enhancement.
(Id. at pp. 271–272.) The trial court, nevertheless, discharged the jury and proceeded to
conduct a court trial on the allegations. (Id. at p. 272.) The California Supreme Court
held the defendant‘s claim of error on this ground was precluded on appeal since the
defendant had failed to object or otherwise assert his right to have the jury make the
requisite determination. (Id. at p. 281.) In rejecting the argument that it was necessary
for defendant to personally and expressly waive the statutory right to a jury trial, the court
held that ―the requirement of an express, personal jury trial waiver relates solely to the
jury trial right guaranteed by the Constitution‖ and not to situations in which the right to
trial is merely statutory. (Id. at pp. 277-278.) The court explained that since ―the


                                               5
deprivation of the statutory right to jury trial on the prior prison term allegations does not
implicate the state or federal constitutional right to jury trial,‖ defendant‘s claim of
ineffectual waiver of the jury trial was precluded on appeal ―[a]bsent an objection to the
discharge of the jury or commencement of court trial .…‖ (Id. at p. 278.)
       Applying these principles to the instant case, we conclude 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 of the on-bail enhancement.
       Moreover, during Rafferty‘s sentencing hearing on October 28, 2011, the trial
court took judicial notice of the record of his conviction in case No. CRM007430. This
included documents that showed Rafferty was convicted of possession of
methamphetamine and that he was released from custody on the date he committed the
offenses in the instant case (CRM008521). Although the court did not expressly find the
on-bail enhancement true, by imposing a two-year term on the enhancement it
―impliedly--but sufficiently--rendered a finding of true‖ on the on-bail enhancement.
(People v. Chambers (2002) 104 Cal.App.4th 1047, 1050-1051, People v. Clair (1992) 2
Cal.4th 629, 691, fn. 17.)
       To prevail on a claim of ineffective assistance of counsel, a defendant must
establish his counsel‘s representation fell below an objective standard of reasonableness
and there is a reasonable probability that, but for counsel‘s deficient performance, the
result of the trial would have been different. (People v. Mesa (2006) 144 Cal.App.4th
1000, 1007.) ―In considering a claim of ineffective assistance of counsel, it is not
necessary to determine ―‗―whether counsel‘s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies .… If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course should be
followed.‖‘ [Citations.]‖ (Id. at p. 1008.)


                                               6
       Since the court found the on-bail enhancement true based on the records it took
judicial notice of at Rafferty‘s sentencing hearing on October 28, 2011, Rafferty was not
prejudiced by defense counsel‘s stipulation to the truth of this enhancement at the
December 19, 2011 hearing. Rafferty has not shown or even argued how he was
prejudiced by his trial counsel‘s stipulation. Accordingly, we also reject Rafferty‘s
ineffective assistance of counsel claim.
                                     DISPOSITION
       The judgment is affirmed.




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