On Bail (PC 12022.1)
Category > On Bail (PC 12022.1)
The emergency pass the court gave defendant to see his ailing wife did not constitute an OR release for purposes of section 12022.1.The evidence was insufficient to find that defendant committed a felony while released from custody on his own recognizance within the meaning of the Penal Code section 12022.1 enhancement. The trial court’s grant of an emergency pass was not the equivalent of an OR release because it served a purpose other than ensuring defendant’s return to court, and defendant did not execute a written release agreement in accordance with section 1318. id: 21306
When a defendant is released from custody on one offense and commits several crimes, only one section 12022.1 enhancement is proper.Defendant was convicted of five offenses. Because the last three felonies were committed while he was released from custody on the earlier offenses, the trial court imposed several enhancements pursuant to Penal Code section 12022.1. Only two enhancements were proper <197> one for his release from custody on the first felony, and one for his release from custody on the second felony. Multiple enhancements may be imposed for separate releases on primary offenses, however, a single primary offense does not support more than one section 12022.1 enhancement for numerous secondary offenses (those committed while defendant is released on the primary offenses).id: 13939
Section 12022.1 enhancement was stricken where defendant was not released pending trial for the third felony at the time the fourth felony was committed.The trial court improperly imposed a Penal Code section 12022.1 enhancement for defendant's commission of the fourth felony while released from custody on the third felony, because he had not yet been arrested (and therefore obviously had not been released) for the third felony at the time the fourth felony was committed.id: 13925
Evidence did not support the on bail enhancement where the record did not indicate whether his prior conviction was a felony or a misdemeanor.Evidence did not support the jury's finding that defendant committed the instant felony while out on bail or his own recognizance prior to judgment on a prior felony offense. The prosecution's evidence demonstrated nothing more than the superior court authorized defendant's O.R. release pending the hearing regarding commitment to a narcotics treatment facility (Welfare and Institutions Code section 3051). The release may have been in the context of a felony conviction or felony probation revocation. However, it also may have been in the context of a misdemeanor or nolo contendere plea. The record did not provide sufficient information upon which to conclude the pending offense was a felony.id: 13904
Court erred in imposing two concurrent terms for committing crimes while out on bail.While on bail pending sentencing defendant committed two residential burglaries. The court erred in imposing two concurrent terms for Penal Code section 12022.1, committing crimes while on bail enhancement. Commission of a crime while on bail goes to the nature of the offender, not the nature of the crime and therefore only one enhancement may be imposed.id: 13885
Absent a felony conviction for the original crime, the commission of felony while out on bail enhancement should have been permanently stayed.Defendant was arrested in Colorado for robbery. He was released on bail and then committed a second robbery in California. As part of the sentence for the second robbery he received a two year sentence enhancement for committing a felony while out on bail. (Penal Code section 12022.1.) He later plead guilty to a misdemeanor for the Colorado offense. Absent a felony conviction for the original offense the sentence enhancement should have been permanently stayed.id: 16223
The on-bail enhancement (section 12022.1(d)) permits the secondary-offense court to impose the two year term and stay execution of that part of the sentence pending disposition of the primary offense case.When the secondary felony offense is adjudicated first and the on-bail enhancement is proved, the secondary offense court may proceed in one of two ways. It may follow the express terms of section 12022.1, subd.(d) - stay imposition of the enhancement. In that case the enhancement is preserved until after the primary-offense court has rendered a judgment, at which time the secondary-offense court, exercising its discretion, may either impose the enhancement or strike it under section 1385. Alternatively, the secondary offense court, may immediately consider whether to strike the enhancement under section 1385, or to impose it as part of the sentence. If it imposes the enhancement, it must stay execution of that part of the sentence pending resolution of the primary offense. Moreover, 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.id: 17410
For purposes of the on-bail enhancement, an order of diversion is not the functional equivalent of a release on bail or one's own recognizance.Penal Code section 12022.1 enhancements may be imposed for release from custody which is the functional equivalent of OR release in an adult court, such as the pretrial house arrest release of a juvenile or the general release of a minor pending trial. However, for purposes of section 12022.1, an order of diversion under the deferred judgment statutes is neither a "release" on bail or OR nor the functional equivalent of it. The enhancement finding was not supported by the evidence.id: 17162
Updated 3/4/2024Because defendant committed two offenses while out on bail for offenses that had been charged as one case, she was subject to only one enhancement under section 12022.1.Defendant committed two offenses while she was on bail for earlier offenses that had originally been charged as one case. However, because defendant committed her secondary offenses when she was released from bail on only one case, she was subject to only one on-bail enhancement under Penal Code section 12022.1.id: 28202
The trial court did not err in admitting into evidence faxed copies of certified court records to prove the on-bail allegations.Defendant argued the trial court prejudicially erred in admitting faxed copies of certified court records to establish that he was on bail when he committed the charged crimes for purposes of Penal Code section 12022.1, subd.(b) enhancement. However, since the documents faxed from Riverside County were admissible under the secondary evidence rule and there was sufficient evidence to authenticate them. The trial court did not err in admitting them into evidence in the trial of the on-bail allegations.id: 20937
Conviction of the primary offense is not an element of the on-bail enhancement allegations, and defendant was not entitled to a jury determination on the issue.Defendant was convicted of robbery along with a true finding by the court on a Penal Code section 12022.1 on-bail enhancement allegation. Contrary to defendant’s claims, conviction of the primary offense is not an element of a section 12022.1 enhancement. Moreover, a defendant is not entitled to a jury trial on the truth of the allegation. Finally, the trial court erred by imposing a concurrent term on the allegation, so the matter was remanded to allow the court to strike the enhancement if it chose to. id: 22866
The plea agreement did not render inoperative the statute conferring upon the court discretionary authority to declare a wobbler a misdemeanor where the court initially granted probation by suspending the imposition of sentence.Defendant pled no contest to a felony assault and admitted a great bodily injury enhancement allegation. He would then serve six months in jail as a condition of probation with the court suspending imposition of sentence. The Court of Appeal later found defendant's wobbler offense could be declared a misdemeanor. The plea agreement did not render inoperative the statute conferring upon the court discretionary authority to declare a wobbler offense to be a misdemeanor where the court initially granted probation by suspending the imposition of sentence. id: 21923
The jury is not required to find as an element of the on-bail enhancement that the defendant was convicted of the primary offense.Contrary to defendant's claim, Penal Code section 12022.1 did not make defendant's conviction of the primary offense an element of the on-bail enhancement for the purpose of proving the enhancement. Instead, the statute only requires proof of the primary offense before the enhancement can be imposed by the court at sentencing.id: 19268
Section 12022.1 on-bail enhancement applies even where the initial offenses were not committed in California.Defendant was admitted to bail based on offenses alleged in Arizona. While on bail, he committed offenses in California. He argued the Penal Code section 12022.1 "on-bail" enhancement only applies where the initial offenses were committed in California. However, the enhancement applies regardless of where the first offense is committed.id: 18516
The trial court erred in imposing two on-bail enhancements in the same case.The on-bail enhancement under Penal Code section 12022.1 is one that involves the nature of the offender as opposed to the nature of the offense. As such, the court could only impose one enhancement under this provision.id: 17118
The section 12022.1 on-bail enhancement applies where the only felony the defendant commits while released on bail is a failure to appear under section 1320.5.Penal Code section 12022.1 applies if a defendant charged with a felony is released on bail, then arrested for committing a second felony while on bail, and is convicted of both offenses. The provision applies where, as here, the only felony the defendant commits while released on bail is a failure to appear in violation of Penal Code section 1320.5. Moreover, because a section 12022.1 sentence enhancement is not based on the same act or omission for which punishment is authorized under section 1320.5, sentencing under both statutes may be imposed without violating the Penal Code section 654 bar against multiple punishment.id: 17108
The "offense committed while on bail or own recognizance" enhancement set forth in section 12022.1 does not apply to juvenile court delinquency proceedings.The sentence enhancement pursuant to Penal Code section 12022.1 is inapplicable to juvenile court proceedings because the statute requires a primary and secondary felony conviction. Because juvenile court adjudications pursuant to Welfare and Institutions Code section 602 are not convictions," the section does not apply to such proceedings.id: 13927
The on bail enhancement of section 12022.1 is exempt from the double the base term sentencing limitation.A full two year enhancement can be imposed pursuant to Penal Code section 12022.1 (committing the charged offense while out on bail pending trial on another felony offense) notwithstanding the fact that imposing such an enhancement would produce a total term of imprisonment in excess of twice the base term selected by the sentencing court.id: 13934
Enhancement for committing a crime while released from custody pending other charges was not subject to the double-the-base term limitation section 1170.1, subdivision (g).A Penal Code section 12022.1 enhancement is an enhancement based on a prior felony conviction, as that term is broadly and liberally construed, and is not subject to the double-the-base term limitation of section 12022.1.id: 13900
Penal Code section 12022.1 applies to a minor who has been released from custody, pending a jurisdictional hearing, under a general release.The juvenile court erred in sustaining the demurrer to the Penal Code section 12022.1 allegations on the grounds that the provision is not applicable to minors who commit felonies. While released on general release pending final resolution of an earlier felony charge. A general release can be the functional equivalent of an O.R. release and thus fall within the provisions of section 12022.1.id: 13917
Proposition 8 does not bar application of the double-the-base term limitation to on-bail enhancements imposed under section 12022.1.Unlike prior prison term enhancements, Penal Code section 12022.1 on-bail enhancements are no prior felony conviction enhancements within the meaning of article 1, section 28(f) of the California Constitution (Prop 8). Therefore, the constitutional provision does not bar application of the double-the-base term limitation of section 1170.1, subd. (g) to on-bail enhancements.id: 13920
A defendant may receive two consecutive enhancements on a felony charge when he commits two or more felony offenses while on bail.Penal Code section 12022.1 provides that a defendant's sentence is to be enhanced if he commits a felony while on bail for another felony. Pursuant to that provision a defendant may receive two consecutive enhancements on a felony charge when he commits two or more felony offenses while on bail.id: 13878
Consecutive sentences are mandatory for primary and secondary convictions when crime-on-bail enhancement is imposed.Defendant was convicted of two crimes while out on bail. He was sentenced to serve the terms concurrently and the court imposed the crime-on-bail enhancement pursuant to Penal Code section 12022.1. Defendant argued the court's imposition of concurrent sentences amounted to an exercise of his discretion under section 13895 to strike the enhancement. However, the concurrent sentence was unauthorized and could not have been lawfully imposed.id: 13880
Court sentencing for the secondary offense can impose the on bail enhancement and then stay its execution.Penal Code section 12022.1 provides a two year enhancement when the defendant has re-offended (committed a secondary offense) while on bail or own-recognizance release. Subdivision (d) of that provision directs that when the defendant is sentenced for the secondary offense imposition of the enhancement shall be stayed and the stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense. The court sentencing for the secondary offense can impose but stay execution of the enhancement pending sentencing for the primary offense. If the stay is then lifted by the court hearing the primary offense, nothing remains to be done.id: 13888
Crime-on-bail enhancement may be imposed in a two-sentence situation.Defendant argued the crime-on-bail enhancement (Penal Code section 12022.1) cannot be imposed where a person is convicted of both the primary and secondary offense and is sentenced for each offense. However, nothing in the legislative history of the provision supports the argument that the legislature intended to eliminate the enhancement from the two sentence situation.id: 13890
Imposing sentence on both the prior serious felony enhancement and the committing crimes while on bail enhancement was not improper.Defendant pled guilty to eight counts of residential burglary. While on bail pending sentencing he committed two additional residential burglaries. He argued the sentencing court violated Penal Code section 654 in imposing sentence on both the prior serious felony conviction enhancement under section 667 and the committing crimes while on bail enhancement under section 12022.1. However, the two enhancements have different elements and different purposes and imposition of both is not improper.id: 13748
Imposition of separate nonstayed sentences for both on-bail enhancement and prior serious felony enhancement does not constitute impermissible double punishment.Defendant argued that imposition of both the two year on-bail enhancement (Penal Code section 12022.1) and the five-year prior serious felony enhancement (section 667) constituted impermissible double punishment because both enhancements were based on the same prior conviction. However, even where an element of each of the enhancements involved is established by the same underlying conviction, sentences on both may be imposed without violating the section 654 prohibition because the other elements for each enhancement must be supported by different facts.id: 13751
Mistake of fact defense does not apply to felony committed while out on bail enhancement.After a bifurcated court trial, the trial judge found defendant committed the theft while out on bail from another offense pursuant to Penal Code section 12022.1. The court expressly found that defendant reasonably believed the earlier case was no longer pending. However, the mistake of fact defense does not apply to the allegation of an enhancement under section 12022.1.id: 13161
Boykin-Tahl advisements were not necessary before accepting a stipulation that the secondary offense was committed while on bail or OR release for purposes of the section 12022.1 enhancement.The Court of Appeal concluded that a defendant's stipulation that the secondary offense was committed while on bail or own recognizance release for the primary offense is analogous to the admission of a prior conviction when charged for the purpose of enhancing a term. (Penal Code section 12022.1). Therefore, the court held the stipulation had to be accompanied by advice regarding the personal waiver of the defendant's constitutional rights to silence, confrontation and cross-examination, and jury trial, i.e., <i>Boykin-Tahl</i> advice and waivers. However, because the stipulation was a stipulation to evidentiary facts, not an admission that the enhancement allegation itself was true or an admission of every element necessary to imposition of punishment on the section 12022.1 charge, the <i>Boykin-Tahl</i> and <i>Yurko</i> requirements were inapplicable.id: 11527
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245