Penal Code 12022.1 PC - Committing a Felony While on Bail or OR Release
In California, if you are out on bail or your own recognizance (O.R.) for a felony charge, and while you're out of jail, you commit another felony offense, you may be subject to an automatic sentencing enhancement if you're convicted of both crimes.
In other words, this statute imposes additional penalties on defendants who commit another felony while out of custody on bail or an OR release. The judge could impose an extra two years in state prison if they are convicted of both felonies.
Penal Code 12022.1 PC states, “The primary offense means a felony for which somebody was released from custody on bail or their own recognizance before the final judgment, including appeal disposition, or release has been revoked.
The criminal charge is enhanced once you are re-arrested after posting bail, but it does not mean you will not be charged with the new offense for which you were arrested. Instead, it attaches to your original case where you posted bail.
The original case is considered the primary offense, and the new crime is a secondary offense if you were re-arrested after posting the bail bond. Our California criminal defense lawyers will take a closer look below.
Primary and Secondary Offenses
To understand how the sentencing enhancement works, you first need to know how PC 12022.1 differentiates between a primary offense and a secondary offense.
The primary offense is the felony for which you were initially arrested and charged, the one for which you are currently released on bail or O.R. The secondary offense is the new felony you committed while you were out of jail and awaiting trial.
Suppose you were arrested for a California Penal Code 273.5 PC corporal injury to a spouse. Next, you posted bail to get released from custody and attend the scheduled court dates. This is your primary offense.
After a couple of court appearances, and while your case is still pending, you are involved in another domestic dispute and re-arrested for the same felony violation of PC 273.5. This is the secondary offense.
Your primary case will add a Penal Code 12022.1 PC enhancement of committing a felony while on bail and modify the criminal exposure from four to six years in prison.
How Does the Sentencing Enhancement Work?
For the two-year sentencing enhancement to apply, you must be convicted of both primary and secondary offenses. You won't receive the enhanced penalty if you're convicted of one but not the other. The enhanced penalty must be served consecutive to the other sentences, in other words, not simultaneously.
So, for example, if the sentence for the primary offense is four years in prison, and the sentence for the secondary crime is three years in prison, you'll serve a total of 9 years with the sentencing enhancement (4 + 3 + 2).
If the judge decides you can serve your time for both felonies simultaneously, the extra two years must still be served consecutively. So in the example above, your total time in prison would be six years with the enhancement. Other important provisions of this law include the following:
- If you're convicted of the secondary offense first and begin spending time in prison, the 2-year enhancement is stayed until the primary case is decided. The extra two years only get added to your sentence if you are convicted of both felonies.
- The two-year enhancement still applies even if you receive probation for one or both felonies. In other words, if you receive formal probation for both felony convictions (which would be rare), you are still eligible to serve two years in prison for the enhancement.
- The additional two years are always served in state prison. In some cases, the judge may sentence you to state prison for the primary offense and county jail for the secondary offense. In such cases, two years are added to the primary offense and served in prison.
- The sentencing enhancement only applies to a conviction for two or more felonies. If you're released on bail for a misdemeanor and then charged with a secondary felony—or if you're released on bail for a felony and commit a misdemeanor—your bail hearing may be revisited, and you may have additional charges. Still, the 2-year additional penalty does not apply.
What Are Some Examples?
EXAMPLE 1: Toby is charged with first-degree residential burglary, a felony, then accused of a second count of first-degree burglary after being released on bail. He was convicted of both felonies and sentenced to four years for each count, to be served consecutively. Toby will automatically serve an additional two years for a total of 10 years for both crimes.
EXAMPLE 2: Ronald is released on his own recognizance after being charged with felony possession of heroin with intent to distribute. While awaiting trial, he is arrested again and charged with felony aggravated assault. Ronald's lawyer negotiates to have the secondary offense (aggravated assault) reduced to a misdemeanor as part of a plea agreement. Ronald is sentenced to two years for the possession charge and summary probation for the misdemeanor assault. The sentencing enhancement does not apply because there are no longer two felony counts in play.
What Are the Common Defenses?
In addition to any defense strategies employed for the primary and secondary offenses, a good defense attorney will also seek to help you avoid the two-year sentencing enhancement, if possible. Strategies to achieve this may include:
- Negotiating to have one or both felonies reduced to a misdemeanor;
- Negotiating for dismissal of at least one of the charges, perhaps as part of a plea agreement;
- Showing insufficient evidence for a conviction forces the prosecutor to drop the case.
Committing a new misdemeanor while out of custody on a bail bond will not impose the additional 2-year enhancement. Still, the judge will likely revoke your bond and remand you to custody on a no-bail-hold while your primary felony case is pending.
The fundamental strategy to accomplish this is to take steps to ensure that, at worst, you are only convicted of either the primary or secondary felony, but not both.
Our skilled legal team can use various legal defenses to help you avoid the enhanced penalties for committing a felony while out on bail. Recall that you must be convicted of both felonies for the enhancement to apply.
Perhaps we could negotiate with the prosecutor pre-filing to persuade them not to file formal charges (DA reject).
Eisner Gorin LLP is located in Los Angeles, California. We provide legal representation across the state. You can contact our law firm for a case evaluation by phone or using the contact form.