Filed 10/9/18 P. v. McDade 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
CARLTON LEMAR MCDADE,
Defendant and Appellant.
|
F076137
(Super. Ct. No. BF163004A)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.
Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant of failure to appear while released on bail (Pen. Code,[1] § 1320.5; count 1) and found appellant committed the offense while released on bail (§ 12022.1). On appeal, appellant contends his section 1320.5 failure to appear conviction cannot be enhanced by the on-bail enhancement. Recognizing our high court reached the opposite conclusion in People v. Walker (2002) 29 Cal.4th 577 (Walker), we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Having previously been charged in a separate case with multiple counts of robbery, appellant failed to appear in the middle of trial while out of custody on bail. The trial continued without appellant present, and the jury convicted him in absentia. He was later arrested by United States Marshals in Louisiana and extradited to California.
The Kern County District Attorney’s Office charged appellant with failure to appear while released on bail (§ 1320.5), with the enhancement allegation that he committed the offense while released on bail (§ 12022.1). At trial, the jury convicted appellant and found the enhancement allegation true.
DISCUSsion
Appellant contends the on-bail enhancement cannot be used to enhance his failure to appear conviction. While appellant acknowledges our high court reached the opposite conclusion in Walker, he contends Walker was incorrectly decided and should be overturned.
Section 1320.5 defines a substantive criminal offense as follows: “Every person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony.” Section 12022.1 provides a two-year sentence enhancement for any person who commits a felony while released on bail or own recognizance from pending felony charges in a separate case.
In Walker, our high court addressed the precise issue presented on appeal: “whether a defendant who is convicted of the felony of willfully failing to appear in court as required while on bail, a violation of section 1320.5 … is subject … to a consecutive two-year sentence enhancement under section 12022.1.” (Walker, supra, 29 Cal.4th at p. 580, fn. omitted.) The court concluded a defendant may be subject to both provisions, based on the statutory construction and legislative intent of both statutes. (Id. at pp. 587-588.)
Appellant was convicted of the same charge and enhancement. Walker specifies appellant’s section 1320.5 failure to appear conviction may be enhanced by the on-bail enhancement. The holding in Walker is clear, and we are bound to follow the decisions of our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
