PEOPLE v. DENARD

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Anthony DENARD, Defendant and Appellant.

No. C016643.

Decided: December 19, 1994

Manuel E. Nestle, under appointment by the Court of Appeal, Forestville, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Cynthia G. Besemer and James T. McNally, Deputy Attys. Gen., for plaintiff and respondent.

Based on crimes committed in 1991, defendant Anthony Denard was found guilty of transportation of cocaine base (Health & Saf. Code, § 11352) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5), with an enhancement for being armed with a firearm (Pen.Code, § 12022, subd. (c)).  (Undesignated statutory references are to the Penal Code.)   Defendant was also found guilty of failure to appear in court while released on bail (§ 1320.5), with an enhancement for commission of a felony while on bail (§ 12022.1).

Defendant appeals, contending (1) evidence of prior acts was improperly admitted, (2) trial counsel provided ineffective assistance by failing to object to the introduction of evidence of gang affiliation, (3) the trial court improperly instructed the jury concerning admissions, (4) the trial court erroneously overruled defendant's demurrer to the section 12022.1 “on bail” enhancement appended to the “failure to appear while on bail” charge because a general enhancement is assertedly inapplicable to a specific statute prohibiting the same conduct, and (5) sentencing on the section 12022.1 enhancement violates section 654's proscription against multiple punishment.

In the published portion of this opinion, we shall conclude the “on-bail” enhancement was properly imposed.   In the unpublished portion of the opinion, we reject defendant's other contentions of error.   We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND **

I.—III.** DISCUSSION

IV. Demurrer to Section 12022.1 Enhancement

Defendant contends the trial court erred in overruling his demurrer to the section 12022.1 3 enhancement (commission of a felony while on bail), which was appended to the section 1320.5 4 charge (making it a felony to willfully fail to appear for a court date while released on bail).   Defendant argues elements establishing a violation of section 1320.5 also establish a violation of the broader provisions of section 12022.1, triggering the rule that a general statute is inapplicable where a specific statute prohibits the same conduct.   We disagree.

Defendant's position has a surface appeal.   Thus, proof of a violation of section 1320.5 requires a showing that the defendant has been charged with a felony, was released on bail, and willfully failed to appear with intent to evade the court's process.  (People v. Wesley (1988) 198 Cal.App.3d 519, 243 Cal.Rptr. 785.)   Section 12022.1 provides an enhancement when a defendant has been charged with a felony, was released on bail or own recognizance, and committed a felony while so released.5  However, despite its surface appeal, defendant's contention fails.

On its face the enhancement statute (§ 12022.1) applies to all felonies without restriction.   Defendant nevertheless contends section 1320.5 offenses must be excluded because on-bail status is an essential element of that felony.   He relies on In re Shull (1944) 23 Cal.2d 745, 146 P.2d 417.   There, the petitioner was convicted of assault with a deadly weapon under section 245 and received an enhancement under a separate provision for commission of a felony while armed with a firearm (the predecessor to section 12022).  (Shull, supra, 23 Cal.2d at p. 748, 146 P.2d 417.)   The Supreme Court said:  “We do not believe ․ that the Legislature intended that [the enhancement] should be applied where the felony of which the person stands convicted is that of assault with a pistol under section 245․  It is apparent that section 245 ․ is a specific provision.   It defines and determines the punishment for a specific kind of a crime, assault with a deadly weapon, in the instant case, a pistol.   On the other hand, [the enhancement] which imposes the additional penalty refers to no particular crime, but purports to require an added punishment for felonies generally where the one committing the same is armed with a pistol or the other weapons designated therein․  It is the general rule that a special statute controls over a general statute.  [Citation.]  It is not unreasonable to suppose that the Legislature believed that for felonies in which the use of a gun was not one of the essential factors, such as rape, larceny, and the like, an added penalty should be imposed by reason of the fact that the defendant being armed with such a weapon would probably be more dangerous because of the probability of death or physical injury being inflicted by the weapon.   Hence, such a condition would be reasonable grounds for increasing the penalty where felonies are involved which do not include as a necessary element being armed with a pistol.   The Legislature has by other acts imposed an increased punishment where the only additional factor, being armed with a deadly weapon, is present.   The only difference between a simple assault and one with a deadly weapon is the latter factor․  Briefly, the Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that for the same offense without any additional factor existing the added punishment should be imposed.   In felonies where a deadly weapon is not a factor in the offense, the additional punishment is imposed ․ because of the additional factor of a deadly weapon being involved.  [¶]  The foregoing view of the legislative intent is further fortified by the very wording of [the enhancement statute].[6 ] It refers to the commission of a felony as complete in itself and then adds ‘while armed’ with a pistol.   The felony of assault with a deadly weapon would not be complete in itself unless the element of the weapon were present.   Hence, there is no occasion for adding the weapon factor.”  (23 Cal.2d at pp. 749–751, 146 P.2d 417, original italics.)

Defendant also cites People v. Floyd (1969) 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862, which applied Shull in holding section 12022's enhancement for commission of a felony while armed with a firearm was inapplicable to a conviction for armed robbery, “since the fact of being armed is essential to the conviction․” 7  (Floyd, supra, 71 Cal.2d at p. 883, 80 Cal.Rptr. 22, 457 P.2d 862.)

Defendant in the case before us believes Shull stands for the principle that a general enhancement is inapplicable where a specific statute prohibits the same conduct.   We believe defendant overstates the case.

 Generally, the rule that a special statute controls over a general statute refers to situations where two substantive offenses compete;  in that event, the prosecution cannot elect to prosecute under a general statute where a specific statute encompasses the same conduct but carries a lesser penalty.   (See Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, 265 Cal.Rptr. 144, 783 P.2d 731;  People v. Jenkins (1980) 28 Cal.3d 494, 170 Cal.Rptr. 1, 620 P.2d 587.)   Thus, Jenkins speaks of the rule as applying “if it appears ․ that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute․”  (28 Cal.3d at p. 502, 170 Cal.Rptr. 1, 620 P.2d 587.)

Enhancement statutes are generally not referred to as being “violated” by defendants.   Nevertheless, it is true Shull refers to the foregoing rule that “a special statute controls over a general statute.”  (Shull, supra, 23 Cal.2d at p. 750, 146 P.2d 417.)   However, the situation present in Shull was that two enhancing statutes competed.   Thus, the crime of assault with a deadly weapon is a “sentence-enhancing statute,” because it encompasses a factor—being armed with a deadly weapon—which enhances the penalty for what would otherwise be simple assault.  (See People v. Bouzas (1991) 53 Cal.3d 467, 479, 279 Cal.Rptr. 847, 807 P.2d 1076.)  Shull prohibited application of a general enhancement statute in addition to the more specific sentence-enhancing statute.   Similarly Floyd involved a sentence-enhancing statute—armed robbery—where the element of being armed enhanced the penalty for what would otherwise be simple robbery.

That is not the situation in this case.   Here, section 1320.5 contains no built-in enhancement.   Without the element of on-bail status (or own-recognizance status under section 1320), failure to appear would not be a crime.8  Thus, section 1320.5 is not a sentence-enhancing statute competing with the general enhancement statute of section 12022.1.   Accordingly, Shull is inapposite, and we see no reason to apply the “general versus special statute” rule to the circumstances of this case.

Moreover, we believe an underlying rationale of the Shull decision was a prohibition against a dual use of facts to enhance a sentence—a rule which has been abrogated by enactment of determinate sentencing.9

Thus, the Supreme Court later relied in part upon Shull in People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995.   There, the defendant was convicted of possession of a firearm by a felon (§ 12021), with a prior drug conviction serving as the basis for the felon element of the possession charge.  (18 Cal.3d at pp. 799–800, 135 Cal.Rptr. 411, 557 P.2d 995.)   The trial court augmented the defendant's sentence pursuant to former section 3024, which at that time specified minimum punishment for persons previously convicted of a felony.  (18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995.)   The Supreme Court held the trial court erred.  “The [trial] court's reliance on defendant's prior conviction for the dual purpose of augmenting sentence and providing an essential element of the charged offense [ ] runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction.”  (Edwards, supra, 18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995, citing inter alia In re Shull, supra, 23 Cal.2d 745, 146 P.2d 417.)

However, Shull 's prohibition against a dual use of facts, reiterated in Edwards, is no longer valid since the inception of determinate sentencing (§ 1170 et seq., Stats.1976, ch. 1139, § 273, operative July 1, 1977).   Thus, in People v. Bruno (1987) 191 Cal.App.3d 1102, 237 Cal.Rptr. 31, we held the same prior conviction could be used both to constitute the crime of petit theft with a prior conviction (§ 666) and as an enhancement for a prior prison term (§ 667.5).   Insofar as concerns us here, we explained in Bruno that Edwards would not preclude dual use of facts, because Edwards was implicitly abrogated by the 1976 enactment of the Uniform Determinate Sentencing Act (§ 1170 et seq.).  (Bruno, supra, 191 Cal.App.3d at p. 1106, 237 Cal.Rptr. 31.)   As originally enacted, section 1170 provided “[i]n no event shall any fact be used twice to determine, aggravate, or enhance a sentence.”  (191 Cal.App.3d at pp. 1106–1107, 237 Cal.Rptr. 31.)   This provision codified Edwards.  (Ibid.)  However, prior to its operative date the Uniform Determinate Sentencing Act was amended to delete that sentence.  (Ibid.)  We concluded it was “clear that the deletion of this prohibition absolutely precludes a construction of the existing section which would again include the prohibition just as if it had not been eliminated by the Legislature.  [Citation.]  Consequently, neither Edwards nor its progeny ․ is authority for prohibiting an enhancement under section 667.5 based upon the same prior felony conviction as constitutes the underlying conviction for a section 666 charge [petit theft with a prior conviction].”   (Bruno, supra, 191 Cal.App.3d at p. 1107, 237 Cal.Rptr. 31;  see also People v. Price (1992) 4 Cal.App.4th 1272, 1277–1288, 6 Cal.Rptr.2d 263 [citing Bruno with approval];  People v. Rodriguez (1988) 206 Cal.App.3d 517, 520, 253 Cal.Rptr. 633 [same].)

We note the reasoning in Bruno was criticized in People v. Darwin (1993) 12 Cal.App.4th 1101, 15 Cal.Rptr.2d 894, another case involving petit theft with a prior conviction and enhancement for a prior prison term.   According to Darwin:  “There is a flaw in [Bruno 's] reasoning:  The original version of ․ section 1170 did not codify the Edwards rule.   The holding in Edwards was that if a prior conviction is an ‘element’ of an offense, the prior may not be used for sentence enhancement.  [Citation.]  The later-deleted sentence in the original version of section 1170 did not address the dual use of a prior as an element of an offense and for sentence enhancement, but merely addressed sentencing, stating that a fact could not be used twice to ‘determine, aggravate, or enhance a sentence.’   These two points are not the same.   Thus, the legislative action did not abrogate the Edwards rule.”   (Darwin, supra, 12 Cal.App.4th at pp. 1103–1104, 15 Cal.Rptr.2d 894.)   Darwin nevertheless agreed with the result in Bruno, but for a different reason:  A prior prison term underlying a conviction for petit theft with a prior is not an element of an offense but merely a sentencing factor, such that the Edwards rule prohibiting dual use of a prior as an element of an offense and for sentence enhancement does not apply.  (Darwin, supra, 12 Cal.App.4th at p. 1104, 15 Cal.Rptr.2d 894, citing People v. Bouzas (1991) 53 Cal.3d 467, 279 Cal.Rptr. 847, 807 P.2d 1076 [despite constitutional provision that a prior felony conviction constituting an element of a felony offense shall be proven to the trier of fact in open court, a defendant charged with petit theft with a prior conviction (§ 666) could remove the issue of the prior conviction from the jury by stipulating to it, because the prior conviction is a sentencing factor for the trial court rather than an element of the section 666 offense].)

We respectfully disagree with Darwin 's criticism of our reasoning in Bruno, because Edwards did indeed address the question as a sentencing matter and prohibited dual use of facts to determine a sentence.   Thus, the statute at issue in Edwards was former section 3024 (Stats.1957, ch. 1617, § 3, p. 2964, repealed by Stats.1976, ch. 1139, § 279, p. 5151, operative July 1, 1977), which prescribed not an enhancement but a minimum penalty for offenses committed by felons.  (Edwards, supra, 18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995.)   In the absence of applicability of section 3024, a lesser minimum sentence would be imposed pursuant to the general Penal Code provision setting the punishment for felonies.  (See People v. Perry (1974) 42 Cal.App.3d 451, 457, 116 Cal.Rptr. 853.)   Edwards said that where a factor constitutes an essential element of criminal conduct, “the minimum sentence may not be increased” because of the same factor.  (Edwards, supra, 18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995, italics added.)   Thus, Edwards prohibited a dual use of facts to determine a sentence—a prohibition now obliterated by determinate sentencing.  Edwards' construction of the question as a sentence-determining matter is apparent from People v. Perry, supra, 42 Cal.App.3d 451, 116 Cal.Rptr. 853, which was cited in Edwards, and which also involved former section 3024.   In Perry, the defendant was convicted of the felony of possession of a firearm by a felon.   Since the substantive offense statute did not specify a minimum punishment, the minimum term would be fixed at six months pursuant to former section 18b (punishment for felony), unless former section 3024 applied.  (Perry, supra, 42 Cal.App.3d at p. 457, 116 Cal.Rptr. 853.)   Section 3024 at that time provided a minimum two-year sentence for felonies committed by felons.  Perry said:  “So far as the applicability of section 3024, subdivision (c) is concerned, the question is not one of imposing additional punishment ․ but of increasing what may be the minimum punishment.”  (42 Cal.App.3d at p. 458, 116 Cal.Rptr. 853.)  Perry concluded “where the prior conviction of a felony makes criminal what is noncriminal in one not a felon, the minimum sentence may not be increased because of an indispensable prior conviction.”  (42 Cal.App.3d at p. 460, 116 Cal.Rptr. 853.)   Thus, Perry prohibited a dual use of facts to determine a sentence.  Edwards did the same.

Accordingly, we believe that contrary to Darwin 's view, Edwards did address sentencing, i.e., the dual use of facts in determining a sentence, a matter which has been superseded by enactment of determinate sentencing.

Thus, we shall continue to follow Bruno, which leads to the conclusion that Shull is no longer good law under the present sentencing scheme.

 Consequently, we also conclude there is no merit to defendant's contention that the Legislature's failure to expressly include section 1320.5 offenses in section 12022.1 constitutes implicit legislative acquiescence in application of the Shull holding.   Section 12022.1 was enacted in 1982 (Stats.1982, ch. 1551, § 2, p. 6050), after abrogation of Shull by inception of determinate sentencing.   Therefore, defendant's point is without merit.

We find no clear indication in section 12022.1's legislative history that the Legislature intended to exclude section 1320.5 offenses from the plain language of the enhancement statute.10

We conclude section 12022.1 applies to section 1320.5 offenses.

V. Section 654

Defendant alternatively contends imposition of sentence on the section 12022.1 enhancement violates the proscription against multiple punishment contained in section 654.11  We disagree.

Where, as here, the defendant is sentenced to prison on the “primary offense” (here, fleeing a peace officer), section 12022.1 authorizes both a consecutive sentence for the “secondary offense” (here, the felony failure to appear) and the two-year enhancement.  (§ 12022.1, subd. (b), (e).)   In People v. Kee (1991) 228 Cal.App.3d 1203, 279 Cal.Rptr. 643, we rejected an argument that this sentencing structure impermissibly punished a single statutory violation (commission of a felony while on bail) with two different punishments.  (Id. at p. 1208, 279 Cal.Rptr. 643.)   We held section 654 does not apply where the Legislature has adopted multiple statutory provisions punishing a single statutory violation in different ways.   (Ibid.)  “[T]he sole statutory violation committed by defendant was his commission of a felony while released on bail.   In subdivisions (b) and (e) of section 12022.1, the Legislature has ordained that defendant's statutory violation should be punished both by imposition of a two-year enhancement and by imposition of a consecutive sentence.   Section 654 does not preclude imposition of these punishments.”  (Kee, supra, 228 Cal.App.3d at p. 1210, 279 Cal.Rptr. 643.)

Moreover, it has been held that where an enhancement does not punish an “act” or “omission,” but rather punishes a defendant's status at the time of commission of an offense, section 654 is inapplicable.   Thus, People v. Price, supra, 4 Cal.App.4th 1272, 6 Cal.Rptr.2d 263, held an enhancement under section 667, subdivision (a), for a prior robbery conviction was properly imposed even though the same prior robbery conviction was used as an element of the substantive offense of petit theft with a prior robbery conviction (§§ 484, 666).  (4 Cal.App.4th at pp. 1276–1278, 6 Cal.Rptr.2d 263.)   The Price court said section 654 “by its terms refers to an act or omission, here, the act of committing robbery.   In this case Price's conduct in committing the earlier robbery is not in issue.   Rather it is his status as having been convicted of that offense on an earlier occasion which triggers application of section 666 as it relates to the petit theft and section 667, subdivision (a) as it relates to his conviction of residential burglary, a serious felony.   Section 654 is inapplicable.”  (Price, supra, 4 Cal.App.4th at p. 1277, 6 Cal.Rptr.2d 263, original italics;  see also People v. Rodriguez, supra, 206 Cal.App.3d at p. 519, 253 Cal.Rptr. 633 [section 654 does not prohibit imposition of sentencing enhancement based on status as recidivist offender].)

We believe section 12022.1 creates a status enhancement.   The statute punishes a defendant not for an act, such as use of a gun, but rather for the defendant's on-bail status at the time of the offense.   This is evident from the language of section 12022.1 itself and from the legislative history of the statute.

Thus, the legislative history of the 1982 enactment of section 12022.1 includes a staff report of the Senate Committee on Judiciary (which constitutes cognizable legislative history under Hutnick, supra, 47 Cal.3d at p. 465, fn. 7, 253 Cal.Rptr. 236, 763 P.2d 1326), describing the difference between enhancements concerned with the circumstances of an offense and those concerned with the status of an offender.   The report describes the section 12022.1 enhancement as “another status enhancement.”  (Sen. Com. on Judiciary Rep. on Assem. Bill No. 692 (1981–1982 Reg. Sess.) p. 5.)

We note our Supreme Court has held section 12022.1 does not create a “prior conviction” status enhancement.  (People v. McClanahan, supra, 3 Cal.4th at p. 871, 12 Cal.Rptr.2d 719, 838 P.2d 241.)   The issue in McClanahan was whether section 12022.1 imposes an enhancement for a “prior felony conviction” as that term is used in Proposition 8 (Cal. Const., art. I, § 28, subd. (f)), which requires that enhancements for prior felony convictions be imposed without the double-the-base-term limitation of section 1170.1, subdivision (g).   The Supreme Court concluded it does not, even though the enhancement cannot be imposed until the defendant is convicted of the primary offense.  (McClanahan, supra, 3 Cal.4th at pp. 867, 869, 12 Cal.Rptr.2d 719, 838 P.2d 241.)   However, McClanahan did not hold that section 12022.1 is not a status enhancement at all but merely that it is not a “prior conviction” status enhancement.  (3 Cal.4th at pp. 870–871, 12 Cal.Rptr.2d 719, 838 P.2d 241.)

We conclude section 12022.1 punishes a defendant for his status of being on bail at the time of commission of an offense.   Thus, section 12022.1 does not punish an “act” or “omission” within the meaning of section 654 and the latter statute is inapplicable.  (See People v. Price, supra, 4 Cal.App.4th at p. 1277, 6 Cal.Rptr.2d 263.)

The trial court properly refused to stay the on-bail enhancement under section 654.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

3.   Section 12022.1 provides in part:  “(a) For the purposes of this section only:  [¶] (1) ‘Primary offense’ means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked.  [¶] (2) ‘Secondary offense’ means a felony offense alleged to have been committed while the person is released from custody for a primary offense.  [¶] (b) Any person arrested for a secondary offense which 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 in state prison which shall be served consecutive to any other term imposed by the court․”

4.   Section 1320.5 provides in part:  “Every person who is charged with the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony.   Upon a conviction under this section, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both the fine and imprisonment․”

5.   Ultimate conviction of the primary offense is a predicate for imposition of the enhanced penalty (§ 12022.1, subd. (d)), but is not an essential element to prove the enhancement.  (See People v. McClanahan (1992) 3 Cal.4th 860, 867, 869–870, 12 Cal.Rptr.2d 719, 838 P.2d 241.)

6.   The statute at issue in Shull provided in part:  “ ‘If any person shall commit or attempt to commit any felony within this state while armed with [specified weapons], upon conviction of such felony or of an attempt to commit such felony, he shall in addition to the punishment prescribed for the crime of which he has been convicted, be punishable by imprisonment in a state prison for not less than five nor for more than ten years ․’ ”  (See Shull, supra, 23 Cal.2d at p. 748, 146 P.2d 417, original italics.)

7.   Following Shull and Floyd, (and upon enactment of determinate sentencing), section 12022 was amended to specify the enhancement would apply “unless such arming is an element of the offense of which he was convicted.”  (Stats.1977, ch. 165, § 91, p. 678.)   Also, after Floyd, section 12022.5 was enacted with an express provision that its enhancement for use of a firearm in the commission of a felony was to apply “even in those cases where the use of a weapon is an element of the offense.”  (Stats.1969, ch. 954, § 1, pp. 1900–1901.)   That provision was later amended to its current version, which expressly states the enhancement applies “unless use of a firearm is an element of the offense,” (§ 12022.5, subd. (a)), except that the enhancement does apply in cases of assault with a firearm under section 245 (§ 12022.5, subd. (d)).  (Stats.1977, ch. 165, § 92, p. 678.)In contrast, section 12022.1 contains no similar specification of legislative intent to include or exclude section 1320.5 offenses from the section 12022.1 enhancement.

8.   We recognize section 12022.1 (fn. 3, ante ) refers to a felony complete in itself, then adds “while the person is released from custody.”   As we have indicated, Shull found analogous language to be supportive of its decision that the Legislature did not intend the enhancement to apply.  (23 Cal.2d at p. 751, 146 P.2d 417.)   Here, however, we cannot similarly infer such legislative intent, because, as we explain, post, the legislative history of section 12022.1 suggests it was expected section 12022.1 is inconclusive.

9.   Shull stated its conclusion found support in In re Rodgers (1932) 121 Cal.App. 370, 9 P.2d 223.  (Shull, supra, 23 Cal.2d at p. 751, 146 P.2d 417.)  Rodgers held an enhancement for commission of a felony while armed did not apply to the felony of possession of a firearm by a felon.   Though not expressly stated, Rodgers appears to be based on a prohibition against a dual use of facts.   As will appear, we believe this prohibition is outdated.

10.   A bill analysis by the Assembly Committee on Criminal Justice, which is cognizable legislative history (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7, 253 Cal.Rptr. 236, 763 P.2d 1326), stated:  “Under current law, it is not a separate crime or an enhancement to a felony sentence to commit a crime while out on bail or OR [own recognizance] release.   AB 692 would establish a scheme of consecutive sentences for committing a crime while out on bail or OR release for another crime․”However, while failure to appear while released on bail was not a separate crime at the time of section 12022.1's enactment, failure to appear while released on one's own recognizance was a felony under section 1320 (Stats.1979, ch. 873, § 13, p. 3043, operative Jan. 1, 1981).   Section 1320.5 was enacted in 1983 as the on-bail counterpart to section 1320.   (Stats.1983, ch. 403, § 1;  see People v. Jimenez (1993) 19 Cal.App.4th 1175, 1178–1179, 24 Cal.Rptr.2d 137.)The Legislature in enacting section 12022.1 did not overlook the existence of section 1320, because the same bill analysis also stated:  “Current law provides for criminal sanctions for failure to appear after being released on one's own recognizance or on 10% deposit (for a misdemeanor).   Would this bill provide for double punishment for these crimes?”   The legislative history contains no answer to this question.Thus, the legislative history provides conflicting inferences and gives no clear support for a conclusion that the Legislature intended to exclude section 1320.5 offenses from section 12022.1.

11.   Section 654 provides:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

SIMS, Acting Presiding Justice.

DAVIS and SCOTLAND, JJ., concur.