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Court of Appeal, Second District, California.

The PEOPLE, Plaintiff and Respondent, v. Jose Antonio ROJAS, Defendant and Appellant.

CR. B044911.

Decided: July 16, 1990

May a defendant receive two consecutive enhancements on a felony charge when he commits two more felony offenses while on bail?   Yes.

While appellant Jose Antonio Rojas (Rojas) was free on bail on one felony offense committed in Los Angeles County, he committed two more felonies in Ventura County.   He was convicted of all charges in separate trials.

Rojas received two consecutive enhancements in Ventura County under Penal Code 1 section 12022.1.   That section provides that a defendant's sentence is to be enhanced if he commits a felony while on bail for another felony.   Rojas contends the court committed sentencing error which requires reversal.   We disagree.

Rojas committed the crime of rape (§ 261) on July 21, 1986, and the crime of burglary (§ 459) on July 23, 1986, while he was free on bail on a felony offense.   The trial court imposed two consecutive two-year enhancements to the rape and burglary sentences.

Rojas argues that since section 12022.1 enhancements are related to the nature of the offender and not to the nature of the offense (People v. Tassel (1984) 36 Cal.3d 77, 90, the trial court erroneously erred in imposing two such enhancements.

In People v. Warinner (1988) 200 Cal.App.3d 1352, 1355, we upheld the imposition of two separate 12022.1 enhancements because Warinner was on bail in two other felony cases at the time he committed the offense which led to his appeal.   The fact that Warinner was on bail on two felony offenses and committed another felony whereas Rojas was on bail for one felony offense and committed two more felonies, does not require a different result.

As we pointed out in Warinner “[t]he legislative intent of section 12022.1 was to punish recidivists with additional penalities.   The increased penalties here are due to Warinner's status as a repeat offender and arise as an incident of the subsequent offense.  [Citations.]  [¶] This rational is not changed by People v. Tassell (1984) 36 Cal.3d 77, 90 ․ which comments upon the two kinds of enhancements mentioned in section 1170.1, subdivision (a).   Section 12022.1, like section 667.5 (prior prison term served), is an enhancement that goes to the nature of the offender.   This is distinguished from enhancements that arise from circumstances of the crime such a section 12022.5 (use of a firearm).   An enhancement arising from the circumstances of the crime may enhance several counts, but an enhancement that goes to the nature of the offender is only added once in arriving at the aggregate sentence.  [¶] Our holding permitting Warinner's sentence to be enhanced for each pending case from which he was released from custody is not inconsistent with section 1170.1, subdivision (a) or Tassell.   Each enhancement may be added once in arriving at the aggregate sentence․”  (Id. at p. 1356.)

The reasoning of Warinner applies with equal force to this case.   We disagree with the contrary conclusion made in People v. Nguyen (1988) 204 Cal.App.3d 181, 196.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.

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