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Committing a Felony While on Bail or OR Release

Posted by Dmitry Gorin | Jul 21, 2022

If you have been accused of a felony crime in California, then it's possible you could be released on bail pending your trial. There are even situations where you could be released from custody by the judge on your own recognizance, commonly known as an “OR release.”

If by chance, you are released from custody, it's considered an issue of trust. In other words, the government has decided to trust that you will show up for court dates later. It's assumed you will not abuse that trust by committing more crimes after release. This trust is often violated.

Committing a Felony While on Bail or OR Release

In a situation where you commit another felony while waiting for your trial, you face enhanced penalties if convicted of both felonies defined by California Penal Code 12022.1 PC.

Put simply, this law imposes additional penalties on felony defendants who commit another felony crime while out on bail or an OR release. For example, the judge can impose a further two years in state prison if the defendant is convicted of both felony crimes.  Penal Code 12022.1 PC says:

  • “The primary offense means a felony offense for which somebody was released from custody on bail or their own recognizance before final judgment, including appeal disposition, or release has been revoked.

The charge is enhanced once you are re-arrested after posting a bail bond, but it doesn't mean you will not be charged with the new crime for which you were arrested. Instead, it attaches to your original case where you had posted bail.

The original case, when you posted a bail bond, is the primary offense, and the new crime is a secondary offense if re-arrested after posting the bail bond. Our California criminal defense lawyers will examine this law in greater detail below.

Review of Committing a Felony While Out on Bail

The enhanced penalty for felony while on bail is defined under California Penal Code 12022.1 PC. This means you would now have two open criminal cases. If you are convicted of the second case first, the enhancement will only be added if you are convicted of the primary crime.

Perhaps you were arrested for a Penal Code 273.5 PC corporal injury to a spouse? You posted bail to get out of custody and attend the scheduled court dates.

After you make a few court appearances and while your case is still pending, you get involved in another domestic dispute and are re-arrested for the same felony violation of PC 273.5.

This means your original case will add a Penal Code 12022.1 PC enhancement of committing a felony while on bail. This will modify the jail exposure from four years to six years in prison.  For the secondary PC 273.5 case, there is a maximum sentence of five years.

The "primary offense" is the initial felony case for which you were arrested before releasing from custody, whether by posting bail or your own recognizance. Next would come to the "secondary offense." After getting released. For the enhanced penalty of two additional years to apply, you have to be convicted of both felony cases.

What Are Some Examples?

Example 1: Ron faces felony charges of Penal Code 487 PC grand theft and posts bail to get released. While this case is pending, he is arrested again in a stolen vehicle and is charged with Penal Code 487(d)(1) PC felony grand theft auto.

Penal Code 487(d)(1) PC felony grand theft auto

Later, Ron was convicted of the primary crime of grand theft and sentenced to four years in state prison. Later, he was convicted in a second trial for the second offense of grand theft auto and was sentenced to 16 months. In this example, the enhanced penalties would apply, and get an additional two years above his original sentences.

Example 2: Robert is at a bar and gets into an argument in the parking lot, where he strikes someone with a baseball bat. He is arrested for felony assault with a deadly weapon. He posted bail and was released from custody, but he was still angry over the situation. He drives over to the guy's house. He argued and stabs him with a knife.

He now has two counts of Penal Code 245(a)(1) PC assault with a deadly weapon, the primary and secondary offenses. His attorney negotiates a plea agreement to dismiss the second count in exchange for a guilty plea on the first.  Thus, he is sentenced to three years in jail.

In this example, the enhanced penalty doesn't apply because he was only convicted of the primary offense, but not both.

What Are the Best Defense Strategies?

Perhaps, as discussed in the example above, we can negotiate with the prosecution to have one of the felony charges either reduced to a lesser misdemeanor crime or have it dismissed like such:

  • Negotiating a plea agreement with the District Attorney to dismiss one of the felony cases, or
  • Negotiate a reduction in the level of a felony charge to a misdemeanor in cases where a wobbler was charged as a felony;
  • Proving insufficient evidence for a conviction forces the prosecutor to drop the case.

Readers should note that If you commit a new misdemeanor crime while out of bail, the additional 2-year enhancement will not be imposed. Still, the judge will likely revoke your bond, keeping you in detention on a no-bail-hold while your felony offense is pending in court.

Best Defense Strategies for Committing a Felony While on Bail

Likewise, if you are found not guilty in the primary felony case or the charge was dropped, then the enhancement would not apply.

Our experienced legal team can use a variety of legal defenses to help defendants avoid the enhanced penalties for committing a felony while out on bail. Recall that the enhancement will only apply in a situation where you are convicted of both felony crimes.

Perhaps we could negotiate prefiling with the prosecutor and law enforcement to persuade them not to file formal felony criminal charges in the first place.

Eisner Gorin LLP is located in Los Angeles, California. You can contact us for an initial case review by phone or use the contact form.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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