What are the consequences of a motion to strike a crime-bail-crime enhancement?

"'[T]here are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense.' [Citation.] The first category typically enhances the sentence due 'to the defendant's status as a repeat offender.' [Citation.] 'The second category of enhancements, which are exemplified by those authorized under sections 12022.5 and 12022.7, arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed.' [Citation.]" (People v. Ahmed (2011) 53 Cal.4th 156, 161.) A section 12022.1 enhancement does not go to the nature of a charged offense, but

Page 11

rather is based on the defendant's on-bail status at the time the secondary offense was committed. (See People v. Meloney (2003) 30 Cal.4th 1145, 1159.)

The weapon enhancement stayed in People v. Guilford, supra, 151 Cal.App.3d 406, was meant to punish a defendant for his action (use of a weapon) in committing an underlying felony. A crime-bail-crime enhancement does not punish a defendant for his or her conduct during the commission of an underlying felony. Rather, when applicable, and like an enhancement for a prior conviction (People v. Sasser (2015) 61 Cal.4th 1, 15), it punishes a defendant for his or her status at the time of the commission of a secondary offense. (Ibid.) In People v. Guilford, supra, 151 Cal.App.3d 406, the term imposed on the weapon enhancement attached to a count of attempted robbery was stayed because the sentence on the underlying attempted robbery conviction was stayed pursuant to section 654. Section 654 required the court to stay the sentence on the attempted robbery count because the facts underlying that offense were the same set of facts upon which the defendant's murder conviction was based. (Id. at p. 411; 654.)³

The same section 654 consideration does not apply when an enhancement is based on the defendant's status, rather than an act or omission of the defendant committed during the course of an underlying felony. (See People v. Coronado (1995) 12 Cal.4th 145, 156 [if enhancement is based on an act or omission in the commission of a crime, section 654 should apply].) Unlike offense-based enhancements that apply to specific counts and may be imposed in connection with each count to which it applies, status-based enhancements apply only once in a case, regardless of the number of counts,

Page 12

and do not attach to particular counts. (People v. Sasser, supra, 61 Cal.4th at p. 15.) Therefore, the fact that the court permanently stayed the sentence imposed on count six⁴ does not preclude the court from imposing sentence for the crime-bail-crime enhancement, notwithstanding the fact that count six was the secondary offense within the meaning of section 12022.1, subdivision (b).

C. The Court did Not Err in Denying Defendant's Motion to Strike the Crime-Bail-Crime Enhancement Pursuant to Section 1385.

Lastly, defendant contends the trial court erred in failing to strike the section 12022.1 crime-bail-crime enhancement. (See People v. Melony, supra, 30 Cal.4th at p. 1163 [trial court has authority under section 1385 to strike a section 12022.1 enhancement].) He says he filed a request for the trial court to strike the section 12022.1 enhancement and that the court did not rule on the motion, but stated it was obligated to impose the two-year statutory term. We do not find the argument convincing.

First, although the opening brief states defendant asked the court to strike the crime-bail-crime enhancement, defendant does not cite to the record where such a request was made. "'[I]t is counsel's duty to point out portions of the record that support the position taken on appeal. The appellate court is not required to search the record on its own seeking error. . . . [A]ny point raised that lacks citation may, in this court's discretion, be deemed waived. [Citation.]' [Citations.]" (Kinney v. Overton (2007) 153 Cal.App.4th 482, 497.) Second, defendant did file a motion seeking vacation of the true finding on the crime-bail-crime enhancement and dismissal of the enhancement, presumably based on insufficient evidence, but that issue has not been raised on appeal. That motion did not, however, refer to section 1385.

Page 13

Additionally, defendant states the trial court "never clearly declined to exercise its discretion" to strike the crime-bail-crime for sentencing purposes. If there had been a request for the court to strike the enhancementand, again, we have not been cited to the record where such any such request was madethen defendant did not press for a ruling and has forfeited the issue. (Cf. People v. Cunningham (2001) 25 Cal.4th 926, 984 [failure to press for ruling on motion to sever forfeited issue for appeal].) "'"[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place."' [Citations.]" (People v. Braxton (2004) 34 Cal.4th 798, 813.) We conclude the issue has not been preserved for appeal.