Stanford Law School - Robert Crown Law Library

Filed 6/19/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
S103633
)

Plaintiff and Respondent,
Ct. App. 1/5 A093589
v.
) Marin
County
KEITH ROBERT MELONEY,
Super. Ct. No. SC112735B
Defendant and Appellant.

Penal Code section 12022.11 provides that when a defendant who is on bail
pending adjudication of a “primary offense” felony is convicted of a “secondary offense”
felony, he or she “shall be subject to a penalty enhancement of an additional two years in
state prison . . . .” (§ 12022.1., subd. (b).) The statute provides that when, as here, the
secondary offense is adjudicated first, the court that adjudicates the secondary offense
shall “stay imposition of the enhancement”; and that upon the defendant’s conviction of
the primary felony offense (typically by another court), the court that adjudicates that
offense “shall” lift the stay. (Id., subd. (d).)2 We granted review to consider (1) whether

1
Subsequent statutory references are to the Penal Code unless otherwise indicated.
2
The statute reads in relevant part:
“(a) For the purposes of this section only: [¶] (1) ‘Primary offense’ means a
felony offense for which a person has been released from custody on bail or on his or her
own recognizance prior to the judgment becoming final, including the disposition of any
appeal, or for which release on bail or his or her own recognizance has been revoked. . . .
[¶] (2) ‘Secondary offense’ means a felony offense alleged to have been committed
while the person is released from custody for a primary offense.
(footnote continued on following page)
1

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either trial court — the court that adjudicates the primary offense, or the court that
adjudicates the secondary offense (or both) — possesses discretion under section 1385 to
strike the two-year “on-bail” enhancement; and (2) the role, if any, of the secondary-
offense court, should the primary-offense court fail to lift the stay after the defendant has
been convicted of the primary offense. In light of the language and purpose of the
statutory provision, we reach the following conclusions:

(footnote continued from preceding page)
“(b) Any person arrested for a secondary offense which was alleged to have been
committed while that person was released from custody on a primary offense shall be
subject to a penalty enhancement of an additional two years in state prison which shall be
served consecutive to any other term imposed by the court.

“(c) The enhancement allegation provided in subdivision (b) shall be pleaded in
the information or indictment which alleges the secondary offense, or in the information
or indictment of the primary offense if a conviction has already occurred in the secondary
offense, and shall be proved as provided by law. The enhancement allegation may be
pleaded in a complaint but need not be proved at the preliminary hearing or grand jury
hearing.

“(d) Whenever there is a conviction for the secondary offense and the
enhancement is proved, and the person is sentenced on the secondary offense prior to the
conviction of the primary offense, the imposition of the enhancement shall be stayed
pending imposition of the sentence for the primary offense. The stay shall be lifted by
the court hearing the primary offense at the time of sentencing for that offense and shall
be recorded in the abstract of judgment. If the person is acquitted of the primary offense
the stay shall be permanent.

“(e) If the person is convicted of a felony for the primary offense, is sentenced to
state prison for the primary offense, and is convicted of a felony for the secondary
offense, any state prison sentence for the secondary offense shall be consecutive to the
primary sentence.

“(f) If the person is convicted of a felony for the primary offense, is granted
probation for the primary offense, and is convicted of a felony for the secondary offense,
any state prison sentence for the secondary offense shall be enhanced as provided in
subdivision (b).

“(g) If the primary offense conviction is reversed on appeal, the enhancement
shall be suspended pending retrial of that felony. Upon retrial and reconviction, the
enhancement shall be reimposed. If the person is no longer in custody for the secondary
offense upon reconviction of the primary offense, the court may, at its discretion,
reimpose the enhancement and order him or her recommitted to custody.”
2

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First, we conclude that when, as here, the secondary felony offense is adjudicated
first and an on-bail enhancement is proved, the secondary-offense court may proceed in
one of two ways: (1) The secondary-offense court may — following the express terms of
section 12022.1, subdivision (d) — stay “imposition of the enhancement.” If the court
follows that course, the enhancement is not imposed as a part of the defendant’s sentence
but is preserved until after the primary-offense court has rendered judgment on a felony
conviction in that court, at which time the secondary-offense court, exercising its
discretion, may either impose the enhancement or strike it pursuant to section 1385.
(2) Alternatively, the secondary-offense court may immediately consider whether to
strike the enhancement under section 1385, or to impose the enhancement as part of the
defendant’s sentence. If the court concludes it is appropriate to exercise discretion to
strike the enhancement, it may do so. If the court determines to impose the enhancement,
it may do so, but it also must stay execution of that aspect of the sentence, pending
resolution of the prosecution of the primary offense. If the court imposes the
enhancement and stays its execution, that aspect of the imposed sentence becomes
effective immediately upon the primary-offense court’s order lifting the stay after the
defendant has been convicted of the primary felony offense.
Second, we conclude that the primary-offense court lacks discretion under section
1385 to strike an enhancement that was pleaded and proved, and whose imposition was
stayed in the secondary-offense court. Whether the secondary-offense court has issued a
stay of imposition of the enhancement, or imposed the enhancement as a part of the
defendant’s sentence but stayed execution of that aspect of the sentence, the primary-
offense court, upon the defendant’s felony conviction on the primary offense, has the
authority only to lift the stay  and, indeed, it must lift the stay. Upon the primary-
offense court’s lifting a stay of imposition of the enhancement, the defendant must be
returned to the secondary-offense court, at which time that court must exercise its
discretion under section 1385 and decide whether to strike the enhancement or impose
sentence on the enhancement. Upon the primary-offense court’s lifting of the stay of the
3

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execution of a previously imposed enhancement of the defendant’s sentence, that
enhanced sentence becomes effective immediately.
Third, with respect to an issue that arose in this case but should not often occur,
we conclude that when the primary-offense court inadvertently fails to lift a stay
following the defendant’s conviction of the primary offense, that failure may be remedied
either by a motion in the primary-offense court, by a motion in the secondary-offense
court (which can take judicial notice of the conviction on the primary felony offense), or
by a writ petition in the Court of Appeal. In the present case, we conclude that the Marin
County Superior Court properly could take judicial notice of defendant’s conviction of
the primary offense in the Santa Clara County Superior Court and could lift its own
previously imposed stay on the basis of that conviction, and then could proceed to
determine whether to strike or to impose the on-bail enhancement as a part of the
defendant’s sentence.
Applying these rules to the present case, we conclude as follows. Contrary to the
assumptions of the People, of amicus curiae on behalf of defendant, and of the Court of
Appeal below, we do not read the record as demonstrating that the Marin County
Superior Court (the secondary-offense court), at the sentencing hearing held after
defendant’s conviction of the secondary offenses, actually imposed the two-year
enhancement as part of defendant’s sentence, and then stayed execution of that aspect of
the sentence. Instead, we find that the secondary-offense court at sentencing stayed
imposition of the enhancement — and hence merely preserved the enhancement by
holding it in abeyance. Thereafter, the Santa Clara County Superior Court (the primary-
offense court) erred by failing to lift that stay upon defendant’s conviction of a felony in
the primary-offense court. When the proceedings in the Santa Clara court were brought
to the attention of the Marin court, the latter court was entitled to take judicial notice of
defendant’s felony conviction of the primary offense in the Santa Clara court and to lift
its own previously issued stay. The Marin court also was entitled to determine whether to
exercise its discretion under section 1385 to strike the enhancement, or to modify the
sentence on the secondary offense by imposing the enhancement as part of defendant’s
4

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sentence. Because the record demonstrates that at the time the matter was returned to the
Marin court, that court operated under the erroneous belief that it lacked discretion to
strike the enhancement, we shall reverse the Court of Appeal’s judgment affirming the
Marin court’s imposition of the enhancement, and remand the matter to the Court of
Appeal with directions to remand the case to the Marin court to permit that court to
determine whether to exercise its discretion under section 1385 to strike the enhancement
or instead impose the enhancement.
Finally, in light of the confusion demonstrated by the circumstances of this case,
and the apparent ambiguity inherent in the statute, we observe that the Legislature may
wish to consider whether section 12022.1, subdivision (d) should be clarified so that it
expressly permits a secondary-offense court either to stay imposition of the enhancement
or, alternatively, to impose the enhancement but stay its execution
I
In May 1999, police officers conducted a search of defendant Keith Robert
Meloney’s home in San Jose, discovering methamphetamine and related paraphernalia
such as ledgers, scales, and baggies. Defendant was arrested and charged with the felony
of possessing methamphetamine for the purpose of sale. (Health & Saf. Code, § 11378.)
Pending trial on that charge (the primary offense) in the Santa Clara Superior Court,
defendant was released on bail, and he relocated to Marin County. In early February
2000, defendant was arrested in Marin after methamphetamine with a street value of
$2,500 was found in his car during a traffic stop. Defendant was charged, this time in
Marin County, with the felony of transporting a controlled substance for the purpose of
sale (Health & Saf. Code, §11379, subd. (a)) (the secondary offense), among other
offenses. It also was alleged that defendant had sustained three prior drug-related
convictions (Pen. Code, § 1203.07, subd. (a)(11); Health & Saf. Code, § 11370.2, subd.
(c)), and — of particular significance to the issue before us — that defendant committed
the charged felony offenses while released from custody on a felony case pending in
Santa Clara County. (Pen. Code, § 12022.1.)
5

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Defendant’s trial in the Marin proceeding occurred prior to his Santa Clara trial.
In the Marin proceeding, outside the presence of the jury, defendant admitted the prior
drug-related conviction enhancement allegations and the section 12022.1 on-bail
enhancement allegation. On November 8, 2000, upon defendant’s conviction of
transporting a controlled substance for the purpose of sale (the secondary offense), the
Marin court imposed a sentence of six years in prison — three years for the conviction of
transporting methamphetamine for sale, and three years for one of the prior drug-related
conviction enhancements. Addressing the allegation “pursuant to section 12022.1 of the
Penal Code for a two-year enhancement,” the court did not impose the enhancement as
part of defendant’s sentence, but instead stated that the “enhancement . . . is stayed
pursuant to Penal Code, section 12022.1(d) pending any conviction in the Santa Clara
County case.” The court summarized: “The total aggregate sentence therefore imposed
is six years in the state prison, and that doesn’t include the Penal Code, section 12022.1
enhancement that has been stayed pending the outcome of the proceeding in Santa Clara
County.” The court’s resulting report and judgment, filed that same day, memorialized
its oral ruling, stating that the “imposition of sentence [relating to the enhancement] is
stayed pending any conviction in [the] Santa Clara County case” and that the “total
aggregate term imposed is 6 years(s) . . . in state prison.” (Italics added.) The abstract of
judgment similarly showed that a six-year prison term was imposed, and that the section
12022.1 enhancement allegation was “stayed at this time . . . .”
One week after entry of the Marin judgment and sentence on the secondary
offense, defendant pleaded guilty pursuant to a negotiated disposition in the Santa Clara
court to possessing methamphetamine for sale, in connection with the 1999 incident (the
primary offense), and admitted three prior-conviction sentence enhancements under
section 11370.2, subdivision (c).3 The record of the Santa Clara proceeding discloses that

3
Section 11370.2, subdivision (c), establishes a three-year sentence enhancement
for a defendant who is convicted of violating section 11378, and who has a qualifying
prior conviction.
(footnote continued on following page)
6

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the court referred briefly to the prior Marin case, but apparently possessed no
documentation concerning that case — indeed, the court at one point secured the docket
number of the Marin case from defense counsel. The Santa Clara court imposed a
negotiated eight-month prison sentence on the conviction for possessing
methamphetamine for sale, and advised defendant that the sentence would be served
“consecutive to the sentence you will be serving out of Marin County.”4 The court
concluded: “So that the record is clear, from this county the defendant is serving only
eight months . . . consecutive to the Marin case.”

Although section 12022.1, subdivision (d) specifies that the stay imposed by the
Marin court concerning the two-year on-bail enhancement “shall be lifted by the court
hearing the primary offense [i.e., the Santa Clara court] at the time of sentencing for that
offense,” at sentencing the Santa Clara court did not mention or address the on-bail
enhancement or the stay concerning that enhancement issued by the Marin court. Indeed,
there is no indication on the record of the Santa Clara proceeding that the Santa Clara
court was aware that the Marin court had issued a stay related to that enhancement.
Defendant was remanded to the custody of the Department of Corrections and
filed a notice of appeal from the Marin judgment. Thereafter, the Marin County District
Attorney became aware of the Santa Clara court’s failure to lift the stay concerning the
two-year on-bail enhancement. A subsequent hearing was held in the Marin court on
February 15, 2001, at which time the prosecutor asked the court to “impose the additional

(footnote continued from preceding page)
In an order issued prior to oral argument, we granted defendant’s request that we
take judicial notice of the reporter’s transcript of the proceedings of November 22, 2000,
in People v. Meloney, Santa Clara Superior Court No. E9910958, and the minute order
pertaining to the sentencing in that matter, dated November 22, 2000.
4
The Santa Clara court also imposed a restitution fine and ordered defendant to
reimburse the county for various laboratory fees. Finally, the Santa Clara court exercised
discretion under section 1385 to strike the section 11370.2, subdivision (c) enhancements
that were applicable to the primary offense, “as a result of the negotiated disposition.”
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two-year sentence” enhancement “consecutive to [the] sentence [defendant is] now
serving in the Department of Corrections.” (Italics added.) Defense counsel argued that
the Marin court should exercise discretion to decline to lift the stay, and should “consider
still not imposing” the two-year sentence enhancement “because I think that would be
more punishment . . . than is appropriate for the conduct in this case.”5 (Italics added.)
Asked by the court for his response, the prosecutor argued that “[t]here are no changes in
circumstances since November 8th,” and that “under my reading of section 12022.1, . . .
the court is mandated to impose sentence [relating to the enhancement] at this time.”
(Italics added.) The court called a recess in order to review the case file and “the
sentence that was originally imposed in this case on November 8th.” After conducting
that review, the court addressed defendant and stated: “When I sentenced you on
November 8th, 2000, as to [the on-bail enhancement] allegation, imposition of sentence
was stayed pending any conviction in the Santa Clara case.” (Italics added.) The court
observed that under the statute, the primary-offense court — the Santa Clara court —
“shall” lift such a stay following conviction on the primary felony offense at the time of
sentencing on that offense, but implicitly observed that the Santa Clara court had failed to
do so. The Marin court continued: “You have now been convicted and sentenced in
Santa Clara County, therefore the stay that this court ordered on November 8th with
respect to [the on-bail enhancement] allegation is lifted and that penalty, which is two
years in state prison, is imposed. This court has no discretion to make any other order at
this time.” (Italics added.) The court ordered that the abstract of judgment be amended
to provide for the additional two-year term, and the abstract was so amended to show
imposition of an eight-year prison term.

5
Counsel also asserted that because a notice of appeal had been filed relating to the
Marin judgment, the Marin court lacked jurisdiction to act on the district attorney’s
request. (But see § 1170, subd. (d) [trial court has authority to recall a sentence and
impose a new sentence within 120 days of the date of commitment to prison; see also
Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1836.)
8

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On appeal from the Marin conviction and resulting eight-year sentence, defendant
asserted, among other claims, that only the Santa Clara court had authority to lift the
Marin court’s stay, and that the Marin court’s action, lifting its own stay, was void.
The Court of Appeal rejected defendant’s contentions. The court reasoned that the
Santa Clara court “acquired a very limited jurisdiction over the enhancement” stayed by
the Marin court. The appellate court found that the Santa Clara court “had jurisdiction to
lift the stay, nothing more.” The Court of Appeal further reasoned that the Marin court
“also retained jurisdiction over the enhancement it had imposed . . . including the
jurisdiction and mandatory duty to lift its own stay and sentence.” The Court of Appeal
concluded that “[e]ven if we were to find that the Marin County court erred in lifting the
stay . . . any error would obviously be harmless. [Citations.] The lifting of the stay was a
mandatory act following [defendant’s] conviction in Santa Clara County, and he does not
suggest how he would have fared better if the court in Santa Clara County, rather than the
Marin County court, had lifted the stay.”
We granted defendant’s petition for review to consider the proper application of
section 12022.1 in these circumstances.
II
A
Section 12022.1, subdivision (b) provides: “Any person arrested for a secondary
[felony] offense which was alleged to have been committed while that person was
released from custody on a primary [felony] offense shall be subject to a penalty
enhancement of an additional two years in state prison which shall be served consecutive
to any other term imposed by the court.” (Italics added.)6 In the present case, the Santa
Clara offense was the primary offense, and the Marin offense was the secondary offense.

6
Section 12022.1, subdivision (a) requires that, for purposes of the statute, both the
primary and secondary offenses be felonies.
9

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We first address the question whether a court has discretion to strike an on-bail
enhancement. As defendant and amicus curiae argue — and as the People concede in
their answer brief — we conclude that a court may strike such an enhancement.
It is well established that, as a general matter, a court has discretion under section
1385, subdivision (c),7 to dismiss or strike an enhancement, or to “strike the additional
punishment for that enhancement in the furtherance of justice.” As we held in People v.
Thomas (1992) 4 Cal.4th 206, “absent a clear legislative direction to the contrary, a trial
court retains its authority under section 1385 to strike an enhancement.” (Id., at p. 210;
see also People v. Fritz (1985) 40 Cal.3d 227, 229-230 [a trial court’s authority to
“ ‘dismiss’ an action ‘in furtherance of justice’ under section 1385 includes the power to
‘strike’ a prior conviction for purposes of sentencing. . . .” (fn. omitted)].) Moreover,
although section 12022.1, subdivision (b), provides that a person in defendant’s situation
“shall be subject to a penalty enhancement of an additional two years in state prison”
(italics added), as the Court of Appeal observed in People v. Wilson (2002) 95
Cal.App.4th 198, 202, “[g]eneral mandatory language, such as ‘shall’ . . . is insufficient
to support a finding of Legislative intent to divest trial courts of discretion under Penal
Code section 1385 to strike enhancements.”8

7
That statute provides in full: “(a) The judge or magistrate may, either of his or
her own motion or upon the application of the prosecuting attorney, and in furtherance of
justice, order an action to be dismissed. The reasons for the dismissal must be set forth in
an order entered upon the minutes. No dismissal shall be made for any cause which
would be ground of demurrer to the accusatory pleading. [¶] (b) This section does not
authorize a judge to strike any prior conviction of a serious felony for purposes of
enhancement of a sentence under Section 667. [¶] (c) (1) If the court has the authority
pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead
strike the additional punishment for that enhancement in the furtherance of justice in
compliance with subdivision (a). (2) This subdivision does not authorize the court to
strike the additional punishment for any enhancement that cannot be stricken or
dismissed pursuant to subdivision (a).”
8
Indeed, the statutory language employed in section 12022.1, subdivision (b) —
providing that a defendant “shall be subject to” an enhancement — suggests even more
(footnote continued on following page)
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Indeed, the Legislature not only has failed to evince a clear intent that section
1385 should not apply to enhancements imposed under section 12022.1, it clearly has
demonstrated the opposite intent. Until 1998, Penal Code section 1170.1, subdivision
(h), provided: “Notwithstanding any other law, the court may strike the additional
punishment for the enhancements provided in subdivision (c) of Section 186.10 and
Sections 667.15, 667.5, 667.8, 667.83, 667.85, 12022, 12022.1, 12022.2, 12022.4,
12022.6, 12022.7, 12022.75, and 12022.9 of this code, or the enhancements provided in
Section 11370.2, 11370.4, or 11379.8 of the Health and Safety Code, if it determines that
there are circumstances in mitigation of the additional punishment and states on the
record its reasons for striking the additional punishment.” (Stats. 1993, ch. 661, § 17.98,
pp. 3544-3545, italics added.)
The Legislature repealed this subdivision of the Penal Code effective January 1,
1998, stating at the time: “In repealing subdivision (h) of Section 1170.1, which
permitted a court to strike punishment for certain listed enhancements, it is not the intent
of the Legislature to alter the existing authority and discretion of the court to strike those
enhancements or to strike the additional punishment for those enhancements pursuant to
Section 1385, except insofar as that authority is limited by other provisions of the law.”
(Stats. 1997, ch. 750, § 9.) From this history it is apparent that the Legislature views
sentence enhancements under section 12022.1 as being subject to a trial court’s discretion
to strike pursuant to section 1385.
B
Subdivision (d) of section 12022.1 addresses procedures applicable when, as here,
the secondary offense is tried and the proceedings result in a conviction and sentence

(footnote continued from preceding page)
strongly that the enhancement is not to be viewed as mandatory. (Cf. People v. One 1986
Cadillac Deville (1999) 70 Cal.App.4th 157, 160 [“[T]o say that property is ‘subject to’
forfeiture admits the possibility that it may not be forfeited even though the conditions
necessary to ‘subject’ the property to forfeiture are met.”].)
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prior to trial of, and conviction on, the primary felony offense. The subdivision provides
that in such a circumstance, “the imposition of the enhancement shall be stayed pending
imposition of the sentence for the primary offense. The stay shall be lifted by the court
hearing the primary offense at the time of sentencing for that offense and shall be
recorded in the abstract of judgment. If the person is acquitted of the primary offense the
stay shall be permanent.” (Ibid., italics added.)9
As we explain, the statute’s italicized language poses potential procedural
problems, and may have contributed to the apparent confusion in the Marin court. The
statute advises the secondary-offense court that “imposition of the enhancement shall be
stayed.” (§ 12022.1, subd. (d).) There is a substantive — and substantial — difference
between, on the one hand, staying the imposition of an enhancement, and, on the other,
imposing sentence on an enhancement, but staying the execution of that part of the
sentence. In the first instance, the question whether to strike the enhancement or impose
sentence on the enhancement is put in abeyance; in the second, sentence on the
enhancement is imposed as part of the sentence but execution of that aspect of the
sentence is stayed. This distinction is well established in the probation statutes (see
§ 1203.1 [“The court or judge thereof, in the order granting probation, may suspend the
imposing, or the execution, of the sentence . . . .”]; see 3 Witkin & Epstein, Cal. Criminal
Law (3d ed. 2000) §§ 538-540, pp. 724-726), and it has been recognized in other
sentencing contexts. (See, e.g., People v. Bell (1984) 159 Cal.App.3d 323, 329
[enhancements imposed, but execution of sentence stayed to comply with double-the-
base-term limitation]; People v. Whigam (1984) 158 Cal.App.3d 1161, 1169 [same];
People v. Niles (1964) 227 Cal.App.2d 749, 755-756 [ban on double punishment under

9
Plainly, the statute contemplates that sentence on an on-bail enhancement will not
be executed unless the defendant ultimately is convicted of both the primary and
secondary felony offenses. (See generally People v. Walker (2002) 29 Cal.4th 577, 586;
In re Jovan (1993) 6 Cal.4th 801, 809; People v. McClanahan (1992) 3 Cal.4th 860, 869-
870.)
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§ 654 can be avoided by staying execution of sentence for a lesser offense pending appeal
(with a proviso that the stay will become permanent when the sentence on the greater
offense is completed)].)
Although at first reading the express terms of the statute seem to contemplate only
a stay of the imposition of the enhancement, viewing the statute as a whole, and
considering its basis and rationale, an alternative interpretation is justified: The statute
additionally permits — and in most instances the efficient administration of justice would
favor — that a secondary-offense court at the initial sentencing hearing make the
determination whether to strike the on-bail enhancement or to impose the enhancement as
a part of the defendant’s sentence, and, if it determines to impose the enhancement, to
stay only the execution of that aspect of the sentence. The basis for this more expansive
reading of the statute was well explicated in Justice Thaxter’s opinion for the Fifth
Appellate District Court of Appeal in People v. Rodriguez Alaniz (1993) 14 Cal.App.4th
1841 (Rodriguez Alaniz).
In
Rodriguez Alaniz, supra, 14 Cal.App.4th 1841, a defendant who was on bail
pending felony charges in Fresno County (the primary-offense court) was arrested for
another felony in Merced County (the secondary-offense court), and an on-bail sentence
enhancement was alleged as to the Merced charges. As in the present case, the
secondary-offense charges were prosecuted first, the defendant admitted the truth of the
on-bail enhancement allegation, and pursuant to section 12022.1 the trial court issued a
stay regarding the enhancement. (Rodriguez Alaniz, at pp. 1843-1845.) Subsequently,
upon the defendant’s conviction of a felony in the primary-offense court, that court lifted
the secondary-offense court’s stay. The People argued on appeal that the secondary-
offense court actually had imposed the enhancement as a part of the defendant’s sentence
but stayed execution of that aspect of the sentence, and that when the primary-offense
court lifted the stay, the two-year enhancement related to the secondary offense became
operative. The defendant asserted, in response, that the secondary-offense court merely
had stayed imposition of the enhancement, and that when the primary-offense court lifted
the stay the defendant remained free from any imposed sentence enhancement absent
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further action by the secondary-offense court. (Id., at pp. 1846-1847.) The appellate
court in Rodriguez Alaniz agreed with the defendant, and held that if the enhancement
were to be imposed, the matter would have to be returned to the secondary-offense court
in order to enable that court to do so. (Id., at p. 1850.)
In so concluding, the court in Rodriguez Alaniz, supra, 14 Cal.App.4th 1841,
thoroughly reviewed section 12022.1 and its history. The court explained that, despite
the statutory language, the Legislature did not intend to “distinguish between a stay of
imposition and a stay of execution for an ‘on-bail’ enhancement attaching to a secondary
offense conviction when the primary offense is still pending” (14 Cal.App.4th at p.
1847), but instead intended to permit a trial court actually to impose an on-bail
enhancement and yet stay its execution. In light of the clarity of its explanation, we set
forth the reasoning of the court in Rodriguez Alaniz at some length.
“The procedural provisions of section 12022.1 dealing with cases in which
sentencing on the secondary offense precedes sentencing on the primary offense were
added by amendment in 1985. (Stats. 1985, ch. 533, § 1, p. 1905.) The amendment’s
legislative history shows that its purpose was to overrule certain appellate court
decisions, specifically including Panos v. Superior Court (1984) 156 Cal.App.3d 626.
(People v. Baries (1989) 209 Cal.App.3d 313, 321.) In Panos, the issue was the
propriety of imposing an on-bail enhancement under section 12022.1 when, at the time of
sentencing on the second offense, there had been no conviction on the offense leading to
the defendant’s on-bail status. In other words, the setting in Panos was the same
presented to the Merced court here. The difference was that when Panos was decided,
section 12022.1 did not provide a mechanism for imposing the enhancement if sentencing
on the secondary offense took place prior to conviction on the primary offense. The
appellate court issued a writ of prohibition barring further proceedings on the
enhancement. Notable in the [Panos] opinion is the following language:
“ ‘The trial court determined and the People urge us to find that conviction on the
earlier . . . felony is a necessary predicate only for execution of the enhanced penalty and
is not an essential element of the enhancement charge itself. Thus, the argument goes, if
14

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the court in [the later case] finds the section 12022.1 enhancement to be true as alleged
even without proof the earlier felony resulted in a conviction, the enhanced penalty can
be imposed but its execution must be stayed pending factual resolution of the [earlier
felony] charge.
“ ‘We decline to adopt the People’s interpretation because it would add to the
statute a dimension which is neither expressly included in nor suggested by its plain
language. Penal Code section 12022.1 addresses various sentencing possibilities after a
conviction on the earlier felony offense has been established, but it significantly fails to
provide a mechanism for imposing and then staying service of the penalty enhancement
pending a conviction on the earlier felony charge.’ ([Panos v. Superior Court, supra,]
156 Cal.App.3d at pp. 629-630.)” (Rodriguez Alaniz, supra, 14 Cal.App.4th 1841, 1847-
1848, italics added.)
The court in Rodriguez Alaniz, supra, 14 Cal.App.4th 1841, continued: “As noted,
the Legislature responded to Panos by amending section 12022.1 in 1985. The
amendment was embodied in Senate Bill No. 343 which, in its final form, passed both
houses of the Legislature without a dissenting vote. We have examined the legislative
history of the bill. Nothing in that history indicates an intent to preclude the court
sentencing for the secondary offense from imposing [sentence on] the enhancement and
then staying its execution. On the contrary, several ‘Senate Floor Analyses’ and
committee analyses of the bill explicitly indicate the intent was to ‘allow the court to
impose the two-year enhancement, once there was a conviction for the secondary offense,
but the enhancement would be stayed pending conviction for the primary offense.’ (See
Rep. of Sen. Com. on Judiciary, Sen. Bill No. 343 (1985-1986 Reg. Sess.) Apr. 16, 1985;
Sen. Floor Analysis of Sen. Bill No. 343 (1985-1986 Reg. Sess.) May 1, 1985 and
July 16, 1985.) These statements evidence an intent to provide what the Panos court
noted was previously lacking (‘a mechanism for imposing and then staying service of the
penalty enhancement pending a conviction on the earlier felony charge’). ([Panos v.
Superior Court, supra,] 156 Cal.App.3d at p. 630.)
15

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“Moreover, several analyses of the bill indicate that there would be no ‘local’
fiscal effect. However, if the court hearing the secondary offense may not stay execution
of the enhancement but only its imposition, that court must, after the court hearing the
primary offense has lifted the stay, hold another sentencing hearing to impose the
enhancement. Under those circumstances there would obviously be some local fiscal
impact.
“The legislative history, in the light of Panos, clearly indicates that the intent of
that portion of the 1985 amendment in question here was to preserve the enhancement
until there had been convictions on both the primary and secondary offenses. That
purpose is as well served by an order staying execution [of sentence relating to] the
enhancement as it is by an order staying imposition [of the enhancement] at the first
sentencing. And the failure of the Legislature to provide that the court hearing the
primary offense should order transfer of the defendant to the other court after lifting the
stay is some indication that the Legislature contemplated that the stay would be of the
enhancement’s execution so that further judicial action was unnecessary.
“Even though the statute’s language (‘the imposition of the enhancement shall be
stayed’) appears unambiguous, ‘ “ ‘[t]he literal meaning of the words . . . may be
disregarded to give effect to manifest purposes that, in the light of the statute’s legislative
history, appear from its provisions considered as a whole.’ ” [Citations.]’ (Leffel v.
Municipal Court (1976) 54 Cal.App.3d 569, 572.)” (Rodriguez Alaniz, supra, 14
Cal.App.4th at pp. 1848-1849.)
Applying its understanding of the statute to the facts before it, the court in
Rodriguez Alaniz, supra, 14 Cal.App.4th 1841, stated:
“We conclude that the Merced court could have imposed but stayed execution of
the enhancement. Unfortunately, the record does not support respondent’s contention
that the Merced court did so. Before sentence was pronounced, the prosecutor advised
the Merced court that ‘imposition of the enhancement shall be stayed pending the
imposition of sentence for the primary offense.’ Defense counsel agreed with that
statement. The court then imposed sentence on certain counts, but ordered that [other
16

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counts] are stayed as is the enhancement . . . .’ (Italics added.) The court never advised
appellant his sentence was being enhanced, but that execution of the enhancement was
stayed.
[¶] . . . [¶]
“When the judgment in the instant action, including the order lifting stay, becomes
final, the Merced court will be free to impose the enhancement . . . . [W]e believe the
proper procedure would then be for this court to remand that case to the Merced Superior
Court to deal with the enhancement.
“The statute does not confer power on the Fresno court to do anything with respect
to the enhancement other than lift the stay. We see no basis upon which the Fresno court
can impose an enhancement to the Merced court’s sentence when the enhancement was
pleaded and proved in the Merced action.” (Rodriguez Alaniz, supra, 14 Cal.App.4th at
pp. 1849-1850.)
C
We agree with the interpretation of the statute set out in Rodriguez Alaniz, supra, 14
Cal.App.4th 1841. In addition to the points set forth in that decision concerning (i) the
case law that led to the amendment of section 12022.1, subdivision (d), (ii) the legislative
history of that amendment,10 and (iii) the absence of any procedure in an otherwise
detailed statutory scheme for returning a case to the secondary-offense court once the
primary-offense court has entered a felony conviction, we find that the Legislature’s
actions subsequent to the opinion in Rodriguez Alaniz, supra, 14 Cal.App.4th 1841,
demonstrate its endorsement of the interpretation set out in that opinion.
At the time Rodriguez Alaniz, supra, 14 Cal.App.4th 1841, was filed in April 1993,
Penal Code section 1170.1, subdivision (d), read as follows: “When the court imposes a
prison sentence for a felony pursuant to Section 1170 [the Determinate Sentencing Act]

10
Prior to oral argument we issued an order granting the People’s request that we
take judicial notice of the cited legislative history.
17

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the court shall also impose the additional terms provided in sections 667, 667.5, 667.8,
667.85, 12022, 12022.2, 12022.4, 12022.5, 12022.55, 12022.6, 12022.7, 12022.75, and
12022.9 . . . , unless the additional punishment therefor is stricken pursuant to subdivision
(h).” (Italics added.) Five months after Rodriguez Alaniz was filed, the Legislature
amended section 1170.1, subdivisions (d) and (h), to add to those respective lists the
provision that concerns us now — section 12022.1. (See Stats. 1993, ch. 611, § 17.98,
pp. 3543, 3544.) By this amendment of section 1170.1, the Legislature appears to have
expressly endorsed the construction of section 12022.1, subdivision (d) set out in
Rodriguez Alaniz.11
Furthermore, although the Legislature has amended section 12022.1 in unrelated
respects in the intervening 10 years since the opinion in Rodriguez Alaniz was filed (see
Stats. 1998, ch. 119, § 1), the Legislature has not amended subdivision (d) of that statute.
We have observed that when as here “ ‘a statute has been construed by judicial decision,
and that construction is not altered by subsequent legislation, it must be presumed that the
Legislature is aware of the judicial construction and approves of it.’ [Citations.] ‘There
is a strong presumption that when the Legislature reenacts a statute which has been
judicially construed it adopts the construction placed on the statute by the courts.’ ”
(Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353.) As in Cel-Tech Communications,
Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163 — a decision in which
we relied upon the maxim of legislative acquiescence — we find that although
“[l]egislative inaction is often not a convincing reason for refusing to change a [prior]

11
The current version of section 1170.1, subdivision (d) omits all references to
specific sentencing enhancement statutes, and instead provides simply: “When the court
imposes a prison sentence for a felony pursuant to Section 1170 [the Determinate
Sentencing Act] . . . the court shall also impose, in addition and consecutive to the offense
of which the person has been convicted, the additional terms provided for any applicable
enhancements.” (Stats. 1997. ch. 750, § 3, italics added.) As observed ante, part II.A,
former section 1170.1, subdivision (h) — which, as noted, was referred to in the original
version of section 1170.1, subdivision (d) — has since been repealed, with no substantive
change intended.
18

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statutory interpretation” (id., at p. 178), under the circumstances described above the
maxim has persuasive force.
D
Accordingly, we conclude that section 12022.1, subdivision (d) permits the
secondary-offense court to impose a two-year on-bail enhancement as part of a
defendant’s sentence, and to stay execution of that aspect of the sentence, pending
disposition of the primary-offense felony case. Indeed, in some respects this procedure
appears preferable to the statutorily permissible alternative of staying imposition of the
enhancement. As illustrated by Rodriguez Alaniz, supra, 14 Cal.App.4th 1841, in at least
some circumstances the action of a court in staying imposition of the enhancement (rather
than imposing the enhancement as part of a defendant’s sentence and then staying
execution of that aspect of the sentence) may not fully implement the Legislature’s intent
in adding subdivision (d) to section 12022.1 in 1985, in response to Panos v. Superior
Court, supra, 156 Cal.App.3d 626. Whenever the secondary-offense court follows the
literal statutory language and stays imposition of the enhancement, instead of imposing
the enhancement and staying execution of that aspect of the sentence, at least some of the
efficiencies that are contemplated by subdivision (d) may be lost. The action of the
primary-offense court in lifting the stay does not result in the automatic execution of an
imposed but stayed sentence, but instead may lead to the physical transfer of the
incarcerated defendant back to the secondary-offense court for a further sentencing
hearing to determine whether to strike or impose the enhancement.
On the other hand, however, the Legislature may have reasons to prefer that, in at
least some circumstances, a secondary-offense trial court have the option of postponing
actual imposition of sentence on the enhancement — in order, for example, to obtain
additional information concerning the sentence imposed by the primary-offense court.
In any event, we believe it prudent to highlight this ambiguity and tension in the
statute, and encourage the Legislature to consider whether section 12022.1, subdivision
(d) should be clarified so that a trial judge will be able to discern immediately, from the
19

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face of the statute, that it permits a secondary-offense court either to stay imposition of
the enhancement, or, alternatively, to impose the enhancement but stay its execution.
We also conclude that under section 12022.1, subdivision (d), when the secondary
offense is tried and resolved first, the secondary-offense court, and only that court, has
the authority to either strike the enhancement under section 1385, or to impose the
enhancement as part of the defendant’s sentence.
Finally, we further conclude that once there has been a conviction on the primary
felony offense, the sole role of the court in which that conviction occurred  and the full
extent of its authority  simply is to lift the stay issued by the secondary-offense court.12
E
Applying these principles to the case before us, we first conclude that at the
sentencing hearing held on November 8, 2000, the Marin court, following the express
terms of the statute, stayed imposition of the enhancement; it did not impose the
enhancement as part of defendant’s sentence and then stay execution of that aspect of the
sentence. Although the People point to passages in the reporter’s transcript of a later
hearing that suggest a contrary view,13 we find that the record is clear. The trial court’s

12
Having reached these conclusions, we need not address the arguments of amicus
curiae on behalf of defendant that the People forfeited any right to have the Marin court
modify its own judgment, because the People (i) failed to object in Santa Clara when that
court failed to lift the Marin court’s stay; (ii) consented to the plea agreement concerning
the Santa Clara judgment; and (iii) failed to timely appeal from the Santa Clara judgment.
As explained above, the underlying premise upon which these arguments are founded —
that the Santa Clara court had discretion to strike or to decline to impose the two-year on-
bail enhancement related to the Marin offense — is incorrect.
13
The People rely upon a comment by the court, made five days after the
November 8, 2000, sentencing hearing, at a subsequent proceeding concerning whether
the court should issue a bench warrant requiring defendant’s return to the Marin court
following disposition of the then pending Santa Clara charges. In the course of
discussing that issue, the prosecutor at one point interjected: “With respect to the
12022.1, your Honor — ” The court replied, “Yes?” The prosecutor continued: “— you
imposed that but stayed it.” The court responded, “That’s right.” The prosecutor
proceeded to point out (correctly) that if that were true, and assuming defendant were
(footnote continued on following page)
20

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statements at the November 8 sentencing hearing, and its filed report and judgment of
that date, demonstrate that the court stayed imposition of sentence on the enhancement.
Any doubt on that point is dispelled by the Marin court’s own assessment made on
February 15, 2001, at which time that court was asked to lift its own stay and impose the
two-year enhancement. After reviewing the file in order to determine what it actually
had done on November 8, 2000, the court confirmed that at that sentencing hearing it had
stayed imposition of sentence on the enhancement.14 It follows that, prior to the hearing
held by the Marin court on February 15, 2001, the two-year on-bail enhancement had not
been imposed.
Defendant and amicus curiae on his behalf assert that the Santa Clara court, by
failing to lift the Marin court’s stay, and by accepting a plea agreement on the Santa
Clara felony charges under which defendant would serve only eight months in prison (in

(footnote continued from preceding page)
convicted of a felony in the Santa Clara case, defendant would not need to return to the
Marin court because the Santa Clara court presumably would “lift the stay” — at which
time the enhancement would become effective. The court did not indicate whether it
agreed with that assertion, but merely replied, “Thank you.” At that point defense
counsel stated, “Judge, if that’s the case, do we need a bench warrant?” The court
replied, “I don’t know.” Contrary to the People’s suggestion, we decline to read the
court’s fleeting response to the prosecutor’s bare assertion as calling into doubt the
court’s clear statement, made at the actual sentencing hearing and memorialized in the
resulting report and judgment, that the court in fact had stayed imposition of the
enhancement.
14
At the February 15, 2001, hearing, immediately after the prosecutor asked the
court to “impose the additional two-year sentence,” the prosecutor contradicted himself
and stated that “[o]n November 8th, 2000, the Court did in fact impose those two years,
stayed it pending . . . the determination as to whether or not [defendant] was going to be
convicted in Santa Clara County . . . .” Defense counsel quickly agreed with the
prosecutor’s mischaracterization and proceeded to argue that the Santa Clara court’s
failure to lift the stay should be honored by the Marin court. Once again, we decline to
read these comments as calling into doubt the court’s clear statement, made at the actual
sentencing hearing and memorialized in the resulting report and judgment, that the court
in fact had stayed imposition of the enhancement.
21

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addition to the Marin sentence), implicitly exercised its discretion to decline either to
revive or to impose the two-year on-bail enhancement. We reject this view for three
reasons. First, the Santa Clara court had no authority to decline to lift the stay. Second,
there was nothing for the Santa Clara court to decline to revive; as explained above, the
enhancement never had been imposed and made part of defendant’s sentence by the
Marin court in the first place. Third, the Santa Clara court would have lacked authority to
impose sentence on an enhancement related to another crime and sentence rendered by
another court, and hence it could not exercise any authority to decline to impose such an
enhancement. In other words, even had the enhancement been imposed and been made
part of the sentence imposed upon defendant by the Marin court on November 8, the
Santa Clara court, in imposing a felony sentence, lacked any discretion to strike or
decline to enforce that aspect of the Marin sentence.
We turn finally to the claim of defendant and amicus curiae on his behalf, that the
Marin court erred by lifting its own stay.
The stay of imposition of the enhancement served the purpose for which it was
intended by the Legislature — “to preserve the enhancement until there had been
convictions on both the primary and secondary offenses.” (Rodriguez Alaniz, supra, 14
Cal.App.4th 1841, 1849.) But that objective having been achieved, there is no reason to
insist that the primary-offense court, rather than the secondary-offense court, lift that
stay. On the facts presented, the Marin court could, and properly did, lift its own stay of
imposition of sentence on the enhancement.
As noted above, immediately after the Marin court lifted that stay on February 15,
2001, it then — for the first time — actually imposed the term provided for the
enhancement, thereby modifying defendant’s sentence. The court informed defendant:
“You have now been convicted and sentenced in Santa Clara County, therefore the stay
that this court ordered on November 8th with respect to [the on-bail enhancement]
allegation is lifted and that penalty, which is two years in state prison, is imposed. This
court has no discretion to make any other order at this time.” (Italics added.)
22

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In so ruling, the Marin court erred. As noted ante, part II. A, it did have discretion
to do otherwise  and to do so at that time. As we have observed, prior to the
February 15, 2001, hearing the Marin court had not imposed the enhancement as part of
defendant’s sentence. Defendant had a right to have that court exercise the discretion it
possessed under section 1385, prior to actually imposing sentence on the enhancement.
Although defendant does not now explicitly press the point, the Marin court never clearly
declined to exercise that discretion, and on the record before us it appears that the court
was unaware of its authority to do so. Therefore, the matter must be remanded to the
Marin court so that it may exercise its sentencing discretion.
III
We reverse the judgment of the Court of Appeal, and direct the court to remand
the matter to the Marin County Superior Court for a new sentencing hearing at which that
court shall exercise its discretion under section 1385 in deciding whether to strike the
two-year enhancement provided by section 12022.1 or impose the term provided for that
enhancement.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

23

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Meloney
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 94 Cal.App.4th 442
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S103633
Date Filed: June 19, 2003
__________________________________________________________________________________

Court:

Superior
County: Marin
Judge: Verna Alana Adams

__________________________________________________________________________________

Attorneys for Appellant:

Campbell & Demetrick, Terence Rayner and James Farragher Campbell for Defendant and Appellant.

Matthew Zwerling and J. Bradley O’Connell for First District Appellate Project as Amicus Curiae on behalf of
Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant
Attorney General, Gerald A. Engler, Acting Assistant Attorney General, Joan Killeen, Moona Nandi and George F.
Hindall III, Deputy Attorneys General, for Plaintiff and Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Terence Rayner
Campbell & Demetrick
220 Montgomery Street, Suite 966
San Francisco, CA 94104
(415) 392-4691

J. Bradley O’Connell
First District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
(415) 495-3119

George F. Hindall III
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5958

2

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Opinion Information

Date:	Docket Number:
Thu, 06/19/2003	S103633

Disposition
Jun 19 2003	Opinion: Reversed

Dockets
Jan 16 2002	Petition for review filed   by counsel for aplt rec req
Jan 25 2002	Received Court of Appeal record   1-file jacket, briefs, 1-sealed envelope & 1-accordion folder
Jan 29 2002	Received:   from counsel for appellant Meloney supplemental points and authorities.
Mar 13 2002	Petition for Review Granted (criminal case)   Votes: George C.J., Kennard, Baxter, Werdegar, Chin, Brown & Moreno JJ.
Oct 17 2002	Application for relief from default filed   by James Farragher campbell and Terence Rayner, attorneys for Appellant Meloney. Appellant's Opening Brief submitted separately.
Oct 30 2002	Order filed   1. Defendant's motion for relief from default, filed by this court on October 17, 2002, is denied. 2. Defendant's "Opening Brief," submitted for filing and received by this court on October 17, 2002 (hereafter October 17 submission), is ordered not to be filed, but retained in the case file. 3. Counsel for defendant is ordered to serve and file, within 30 days of this order, a substitute opening brief that complies with California Rules of Court, rule 14(a)(1)(C). Specifically, any assertion in the brief concerning whether the Santa Clara Superior Court exercised its discretion to decline to lift the stay of the "on-bail" enhancement at issue in this case, or "refused" to lift lift that stay (see October 17 submission at pp. 2, 7 & 8), and any assertion that the Marin Superior Court "stated [that it] was inclined to" lift the stay (see October 17 submission at p. 8), must be supported by specific record citations. In this regard counsel for defendant, simultaneously with the filing of the substitute brief, is ordered to make an appropriate motion for judicial notice of the relevant Santa Clara Superior Court proceedings. 4. The parties are directed to include in their briefs a discussion concerning whether a trial court has discretion to decline to lift a stay of an "on-bail" enhancement,and the effect, if any, of Penal Code, section 1170.1, former subdivision (h), repealed effective January 1, 1998. (See Stats. 1997, ch. 750, ? 9 (Sen. Bill 721).) 5. Upon solicitation by this court, the First District Court of Appeal Appellate Project is accorded amicus curiae status and is invited to submit a brief on behalf of defendant. Such a brief may be served and filed within 30 days after the filing of defendant's opening brief.
Nov 27 2002	Opening brief on the merits filed   by counsel for aplt. "Substitute Opening Brief"
Nov 27 2002	Request for judicial notice filed (in non-AA proceeding)   by counsel for aplt
Dec 13 2002	Request for extension of time filed   by respondent for an extension of 31 days to January 27, 2003, to file the answer brief on the merits.
Dec 17 2002	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 27, 2003.
Dec 20 2002	Request for extension of time filed   by Amicus First District Appellate Project (FDAP) for a 21-day extension of time to 1/17/2003, to file the amicus brief.
Dec 30 2002	Extension of time granted   On application of amicus curiae First District Appellate Project (FDAP) and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief is extended to and including January 17, 2003.
Jan 17 2003	Amicus Curiae Brief filed by:   First District Appellate Project
Jan 27 2003	Request for extension of time filed   for resp to file the answer brief on the merits. to 2-6-03
Jan 30 2003	Extension of time granted   to and including 2-6-03 for respondent to file the answer brief on the merits. No further extension of time is contemplated.
Feb 6 2003	Answer brief on the merits filed   by resp
Feb 6 2003	Response to amicus curiae brief filed   Resp's answer to A/C brief of First Dist. Appellate Project
Feb 7 2003	Request for judicial notice filed (in non-AA proceeding)   by resp
Feb 14 2003	Received:   Respondent's Certificate of Compliance with CRC 29.1(c), respondent's answer brief on the merits contains 6,357 words.
Feb 14 2003	Received:   Respondent's Certificate of Compliance with CRC 29.1(c), answer to brief of amicus curiae First District Appellate Project contains 1,128 words.
Feb 27 2003	Received:   Reply Brief/Merits one day late
Mar 4 2003	Reply brief filed (case fully briefed)   (with permission)
Apr 9 2003	Letter sent to:   James Farragher Campbell [Appellant Meloney], requesting a response to be served and filed by 4/16/2003, addressing questions concerning characterizations of the record made on defendant's behalf. [See 4/9/2003 letter by Frederick K. Ohlrich, Court Administrator and Clerk of the Supreme Court.]
Apr 9 2003	Request for judicial notice granted
Apr 9 2003	Case ordered on calendar   5-7-03, 9am, S.F.
Apr 15 2003	Request for judicial notice granted   Defendant's motion, filed on November 27, 2002, requesting that this court take judicial notice of the reporter's transcript of the proceedings of November 22, 2000, in People v. Meloney, Santa Clara Superior Court No. E9910958, and the minute order pertaining to the sentencing in that matter, dated November 22, 2000, is granted. The People's motion, filed on February 7, 2003, requesting that this court take judicial notice of the legislative history of the Senate Bill No. 343 (1985-1986 Reg. Sess.), which amended Penal Code section 12022.1 is granted.
Apr 16 2003	Filed letter from:   James Farragher Campbell, counsel for appellant (Meloney) in reply to Court's inquiry of April 9, 2003.
Apr 16 2003	Filed:   Aplt's request to allot oral argument time to A/C
Apr 21 2003	Order filed   The request of counsel for Aplt. to allow two counsel to argue on behalf of Aplt. is granted.
Apr 21 2003	Order filed   The request of Aplt. to allocate to A/C First Dist Appellate Project 15 min. of aplt's 30-min. allotted time for oral argument is granted.
May 7 2003	Cause argued and submitted
Jun 19 2003	Opinion filed: Judgment reversed   and remanded with directions. Majority Opinion By: George, C. J. -- Joined by Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jul 22 2003	Remittitur issued (criminal case)
Jul 23 2003	Received:   Receipt for remittitur from First District, Division Five, signed for by Richard Sandvik
Sep 24 2003	Compensation awarded counsel   Atty O'Connell

Briefs
Nov 27 2002	Opening brief on the merits filed
Jan 17 2003	Amicus Curiae Brief filed by:
Feb 6 2003	Answer brief on the merits filed
Feb 6 2003	Response to amicus curiae brief filed
Mar 4 2003	Reply brief filed (case fully briefed)

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