Bail

"The California Supreme Court has recognized that release on bail and OR release are separate and distinct procedures." (Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, citing Van Atta v. Scott (1980) 27 Cal.3d 424, 452 ["Release on own recognizance and release on bail are alternative and complementary systems"]]

Own Recognizance (OR) Release

PC1318 defines the legal agreement for OR Release.

Bail or OR conditions

In re Webb

Compliance with PC1318 by written agreement

In order to be legally considered an OR release, PC1318 must be complied with. (People v. Jenkins (1983) 146 Cal.App.3d 22 ["However else it might be characterized, a release without bail which does not comply with the specific requirements of section 1318 is not a release 'under an own recognizance'"] There must be a written agreement. Otherwise, it is not an OR release. (People v. Hernandez (2009) 177 Cal.App.4th 1182, 1191 [holding that compliance with PC1318 includes "the necessity of a signed release agreement containing the required stipulations, an essential part of what constitutes an O.R. release."].) In Jenkins, the defendant signed an agreement for a release, but it did not contain a provision "inform[ing] of the consequences and penalties applicable to violation of the conditions of release." (Penal Code, §1318, subd. (a)(4).) Because of that, it could not be considered legally an OR release, so PC1320 was not violated. In People v. Mohammed (2008) 162 Cal.App.4th 920, there was no written agreement, but it was argued that PC1318 was substantially complied with. Mohammed rejected substantial compliance as an excuse for not complying with PC1318. On the other hand, People v. Carroll (2014) 222 Cal.App.4th 1406, held that substantial compliance with PC1318 will permit a PC1320 prosecution. In Carroll, the defendant signed a written agreement that did contain language from PC1318(a)(2) ("The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.") or PC1318(a)(3) ("The defendant’s promise not to depart this state without leave of the court.") The written agreement did include the consequences of FTAing. The missing language had no effect on the FTA. So contrary to Mohammed, Carroll held there was substantial compliance and that substantial compliance was a valid theory for PC1320 prosecutions.

"Similar to a bail bond being in the nature of a contract between the government and the surety that ensures the appearance of the defendant ([citation].), an OR written agreement is a contract between government and the defendant in which the defendant not only promises to appear, but is informed of the consequences of nonappearance." (People v. Mohammed (2008) 162 Cal.App.4th 920.)

Penal Code section 1318

(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:

(1) The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.

(2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.

(3) The defendant’s promise not to depart this state without leave of the court.

(4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.

(5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.

Failure to Appear (FTA)

PC1320 punishes FTAs for OR release. FTA on a misdemeanor is a misdemeanor. FTA on a felony is a felony. PC1320.5 punishes FTA while on bail for felonies.

FTA is in itself a crime. It does not matter what happened on the underlying offense. (People v. Walker (2002) 29 Cal.4th 577, 583 ["The language and history of section 1320.5 also reflect the Legislature's view that fulfillment of this purpose requires punishment whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered."].)

PC12022.1 On bail enhancement

PC12022.1(b): Any person arrested for a secondary offense that 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, which shall be served consecutive to any other term imposed by the court.

This is a two-year enhancement for committing a crime while released on bail or own recognizance. Subdivision (c) specifically states that the allegation may be pleaded in a Complaint, but need not be proved at the preliminary hearing. The allegation must, however, be pleaded in the Information or Indictment

On bail for a case outside of California counts as being on bail. (People v. Griffin (2005) 128 Cal.App.4th 1112.)

If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)

An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (In re Mazur (2022) 81 Cal.App.5th 203, 210.)

People v. Johnson (2012) 208 Cal.App.4th 1092, held that even after Apprendi, a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, Johnson relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

People v. Smith (2006) held that the conviction of the primary offense is not an element of the enhancement that has to be found by a jury.

The appropriate jury instruction is CALCRIM 3250.

“If you find the defendant guilty of the crime charged in Count XXX, you must then decide whether the People have proved the additional allegation that at the time of the commission of Count YYYY, that the Defendant was released from custody on bail or his own recognizance for Count XXXX,

To prove this allegation, the People must prove that

1) At the time the Defendant committed the acts alleged in Count YYYY, he had been released from custody on bail or on his or her own recognizance pending trial for Count XXX, and

2) and that he was taken into custody for the commission of Count YYYY”

“Primary offense” refers to the felony offense for which a person was released on bail / O.R. prior to final judgment. Conviction for the primary offense is not an element of Penal Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)

“Secondary offense” refers to the felony offense committed by the defendant while released on the primary offense.

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 court for the secondary offense may strike the enhancement or imposition of the enhancement must be stayed, pending sentencing for the primary offense per Penal Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the enhancement. (Meloney, supra.)

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, then any state prison sentence for the secondary offense must be consecutive to the primary sentence. (Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)

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, then any state prison sentence for the secondary offense must be enhanced by an additional term of two years. (Pen. Code § 12022.1(f).)

If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony. On retrial and reconviction, the enhancement must be re-imposed. If the person is no longer in custody for the secondary offense on reconviction of the primary offense, the court may, at its discretion, re-impose the enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)

• Multiple enhancements are possible if the defendant is released on multiple cases. (People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one enhancement is permitted if there are multiple secondary offenses and one primary offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)

• Imposing this enhancement and a prior conviction enhancement for the same primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993) 21 Cal.App.4th 318 [cert. for part. pub.].)

• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th 260.)

• The enhancement need not be proved at the preliminary hearing. (Pen. Code § 12022.1(c).)

• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal. App.4th 1092.)

• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker (2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to release pursuant to Penal Code section 1000. (People v. Ormiston (2003) 105 Cal.App.4th 676 [cert. for part. pub.].)

What is final judgment? For purposes of appeal, under PC1237, order granting probation is final judgment. But People v. McKenzie (2018) 25 Cal.App.5th 1207, gives many distinctions. “It is true that, under [Penal Code] section 1237, an order granting probation is deemed a ‘final judgment’ for the purpose of taking an appeal. [Citation.] [The Supreme Court has] explained, however, that such an order ‘does not have the effect of a judgment for other purposes.’ ” (People v. Chavez (2018) 4 Cal.5th 771, 786, 231 Cal.Rptr.3d 634, 415 P.3d 707; Howard, supra, 16 Cal.4th at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 [“The probation order is considered to be a final judgment only for the ‘limited purpose of taking an appeal therefrom.’ ”]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636 [same].) Indeed, it has been held that an order granting probation does not have the effect of a final judgment in the context of Estrada's retroactivity. (In re May (1976) 62 Cal.App.3d 165, 169, 133 Cal.Rptr. 33 (May) [order suspending proceedings and granting probation did not have the effect of a final judgment for purposes of this case; “the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final”].)