Filed 8/18/15 P. v. Sayavong CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
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THE PEOPLE, C076442
Plaintiff and Respondent, (Super. Ct. Nos. 11F5612,
13F7880, 14F1610)
v.
ONESAENG SAYAVONG,
Defendant and Appellant.
In case No. 13F7880, a jury convicted defendant Onesaeng Sayavong of assault
with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); unless
otherwise set forth, statutory references that follow are to the Penal Code; count 1) and
corporal injury to a cohabitant (§ 273.5, subd. (a); count 2). The jury sustained three
strike priors (§ 1170.12) and the same on-bail enhancement in connection with each
count (§ 12022.1). After the jury rendered its verdicts and findings, the parties resolved
several other cases which were trailing, including case Nos. 11F5612 and 14F1610.
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Defendant entered a plea to offenses in the trailing cases in exchange for a 10-year
stipulated sentence in case No. 13F7880 and concurrent terms in the trailing cases. The
court sentenced defendant accordingly.
Defendant appeals.
We note that defendant’s notice of appeal listed only case No. 13F7880, and none
of the trailing cases. This court granted defense appellate counsel’s motion to construe
the notice of appeal to include two of the trailing cases, case Nos. 11F5612 and 14F1610.
Defendant contends and the People concede that the trial court erroneously
imposed a second on-bail enhancement in case No. 13F7880, which must be stricken.
We conclude that even though the clerk’s minutes and the amended abstract of judgment
reflect two on-bail enhancements, one of which was stayed, the trial court orally imposed
only one on-bail enhancement. We will order the minutes and abstract corrected to
reflect the oral pronouncement of judgment.
Section 12022.1 “penalize[s] recidivist conduct with increased punishment.”
(People v. McClanahan (1992) 3 Cal.4th 860, 868.) A section 12022.1 enhancement is
related to the nature of the offender, not the nature of the offense. (People v. Watkins
(1992) 2 Cal.App.4th 589, 593; People v. Nguyen (1988) 204 Cal.App.3d 181, 196.)
Thus, imposition of an on-bail enhancement “does not depend on the number of offenses
charged in the information” and “[l]ike a prior conviction, it may be added only once to
the defendant’s sentence.” (Nguyen at p. 196.)
In case No. 13F7880, the information alleged the on-bail enhancement as follows:
“[D]efendant(s)[, [¶] ] Onesaeng Sayavong, [¶] [a]s to Count(s) 1, 2, was released from
County Court, Case # 11F5612, at the time of the commission of the above offense
within the meaning of Penal Code section 12022.1.” There was only one on-bail
enhancement which was supported by the evidence and applicable to the case. The trial
court took judicial notice that defendant was released on bond on February 27, 2013, in
felony case No. 11F5612. The offenses in case No. 13F7880 occurred on June 6, 2013,
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while he was on bail. The jury found the on-bail enhancement to be true as to both
counts 1 and 2.
At sentencing, the court sentenced defendant to state prison for an aggregate term
of 10 years. In case No. 13F7880, the court imposed the upper term of four years,
doubled for one strike prior for count 2. The court stayed the sentence on count 1
pursuant to section 654. The court imposed two years for the on-bail enhancement. For
the offenses in the trailing cases, including case Nos. 11F5612 and 14F1610, the court
imposed concurrent terms. The court did not impose a second on-bail enhancement in
case No. 13F7880 and then stay it as the clerk’s minutes and the amended abstract
erroneously reflect. We will order the minutes and amended abstract corrected
accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court is directed to prepare corrected minutes and a corrected abstract of
judgment reflecting a single on-bail enhancement and to forward a certified copy of the
corrected abstract to the Department of Corrections and Rehabilitation. The judgment is
affirmed.
HULL , Acting P. J.
We concur:
MAURO , J.
RENNER , J.
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