If you are accused of a felony offense in California, you may be released on bail pending your trial—or in some cases, you might be released on your own recognizance, called an “OR release.”
In this way, being released from custody is a matter of trust: the state chooses to trust you to show up for the trial and not abuse the privilege by committing additional crimes.
Thus, if you commit another felony while awaiting your trial, you could face enhanced penalties under California Penal Code 12022.1 PC if you are convicted of both felonies.
In other words, this statute imposes additional penalties on felony defendants that commit another felony offense while out on bail or OR release. The court can order a further two years in state prison if a defendant is convicted of both crimes.
Penal Code 12022.1 PC states that “Primary offense means a felony crime for which someone was released from custody on bail or their own recognizance before final judgment, including appeal disposition, or release has been revoked.
This charge is enhanced when you are re-arrested after posting a bail bond. It does not mean you are exempt from being charged with the new offense you were arrested for. Instead, it attaches to your original case where you had posted bail.
The original case for which you posted a bail bond is the primary offense. The new crime is a secondary offense if you are re-arrested after posting the bail bond. In this article by our Los Angeles criminal defense lawyers, we will cover this topic in greater detail below.
Overview of Committing a Felony Crime While Out on Bail
The enhanced penalty for committing a felony while on bail is described in California Penal Code 12022.1 PC. Put simply, you would now have two open criminal cases.
If convicted of the secondary case first, the enhancement is only added if you are convicted of your primary offense. If there is no conviction for the primary offense, the enhancement will not be imposed on your secondary offense case.
For example, perhaps you were arrested for a felony violation of Penal Code 273.5 PC corporal injury to a spouse, and you posted a bail bond to get out of jail. Next, you attend the scheduled court dates as ordered.
However, after a few court appearances and while the case is still pending, you are involved in another domestic dispute with your spouse. The police arrive, and you are re-arrested for another felony violation of PC 273.5.
Your original case will add a Penal Code 12022.1 PC enhancement of committing a felony while on bail to your case, which modifies your maximum exposure from 4 years to six years in prison.
Next, for your secondary case, there is a maximum sentence of five years, depending on the details of the case. Further, this charge also applies if you were released on your own recognizance by the court and committed a new felony crime.
By definition, the "primary offense" is the original felony with which you were charged before being released from custody, whether on bail or your own recognizance.
The "secondary offense" is the second felony you allegedly committed while being released from custody. For the enhanced penalty of two additional years, you must be convicted of both felonies. If you're only convicted of one but not the other, the enhancement doesn't apply.
How Does the Enhanced Penalty Work?
Let's look at a few tangible examples to understand the enhanced penalty of committing a felony while on bail.
Example 1: Tim faces felony charges of Penal Code 459 PC first-degree burglary and gets out on bail. While awaiting trial, Tim is arrested in a stolen vehicle and is charged with felony grand theft auto under Penal Code 487(d)(1) PC.
He was convicted of the primary offense (burglary) and was sentenced to four years in prison. He is then convicted in a second trial for the secondary crime (grand theft auto) and gets 16 months. In this case, the enhanced penalty would apply, and he would serve two more years in addition to his original sentences.
Example 2: James gets into a fight at a bar with David, pulls out a knife, and stabs David. James is arrested and charged with felony assault with a deadly weapon. James posts bail, but he is angry that David called the police, so he goes to David's house, has an altercation with him, and again attacks him with a knife.
James now faces two counts of Penal Code 245(a)(1) PC assault with a deadly weapon, both primary and secondary offenses. His lawyer negotiates a plea agreement with prosecutors to drop the second count in return for a guilty plea for the first count.
James' plea agreement results in a 3-year prison sentence. In this case, the enhanced penalty would not apply because James was only convicted of the primary offense.
Example 3: Sarah is arrested for Penal Code 487 PC felony grand theft for allegedly stealing $2000 of merchandise from a store. She is released on her own recognizance. While awaiting trial, Sarah gets into an argument with her neighbor and pulls out a gun, firing it. She is now charged with grand theft (primary) and Penal Code 246.3 PC negligent discharge of a firearm (secondary).
Sarah's lawyer negotiates to have the charge of grand theft (a "wobbler" offense) reduced from a felony to a misdemeanor. She is subsequently convicted of misdemeanor grand theft and felony discharge of a firearm. In this case, the enhanced penalty would not apply because it only applies when both primary and secondary offenses are felonies.
What Are the Legal Defense Strategies for Penal Code 12022.1 PC?
Aside from defending against the initial felony offenses, defense lawyers can implement several strategies to help defendants avoid the enhanced penalties for committing a felony while on bail.
Since the enhancement only applies in the case of dual felony convictions, these defenses usually revolve around having at least one of the two charges dropped or reduced, so they are no longer both felonies. For example:
- Negotiating a plea agreement where one of the two felony charges is dropped (as in Example 2);
- Reducing wobbler offenses from felonies to misdemeanors (as in Example 3) so enhanced penalties don't apply;
- Having one or more felony charges dropped for lack of evidence.
If you commit a new misdemeanor offense while out of custody on a bail bond, it will not impose the additional 2-year enhancement. However, that does not prevent the judge from revoking your bail bond and keeping you in custody on a no-bail-hold while your primary felony case is pending.
Further, if you are found not guilty or the primary charges are dismissed, the enhancement would not apply. Also, it might be possible to negotiate with the prosecutor for reduced charges or a case dismissal.
Further, with early prefiling negotiations with law enforcement and the District Attorney's Office, we might be able to convince them not to file formal felony criminal charges in the first place.
Eisner Gorin LLP is based in Los Angeles County, and we serve people across Southern California. You can reach us for an initial case consultation by calling (877) 781-1570 or filling out the contact form.
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