PEOPLE v. ROJAS (1990)

ON REHEARING

May a defendant receive two consecutive enhancements for committing two felonies while out on bail on yet another felony?   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 three offenses in separate trials.

Rojas received two consecutive enhancements in Ventura County under Penal Code 1 section 12022.1.   That section provides in part:  “(2)(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 the state prison which shall be served consecutive to any other term imposed by the court.”   The section defines a “primary offense” as “(1) ․ 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final, including the disposition of any appeal, or for which release on bail or on his or her own recognizance has been revoked.”   A “(2) ․ secondary offense” is “a felony offense alleged to have been committed while the person is released from custody for a primary offense.”   The section also sets forth pleading and proof requirements.   Under section 12022.1, the felony committed by Rojas in Los Angeles County constitutes a primary offense and the two felony offenses he committed in Ventura County constitute secondary offenses.

In People v. Nguyen (1988) 204 Cal.App.3d 181, 251 Cal.Rptr. 40, the defendant was also on bail for one felony committed in Los Angeles County when he committed two distinct felonies in Orange County.   The trial judge imposed two 12022.1 enhancements.   The Court of Appeal struck one of the enhancements.

In People v. Mackabee (1989) 214 Cal.App.3d 1250, 263 Cal.Rptr. 183, the defendant committed a second felony while free of custody on bail on another felony.   He was then released from custody on bail on the second felony and committed a third felony.   The trial court imposed a 12022.1 enhancement on Mackabee for committing the second felony while on bail on the first felony and two such enhancements for committing the third felony while on bail on the first and second felonies.   The Court of Appeal struck one of the enhancements.

The Courts of Appeal in Nguyen and Mackabee both relied on People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, in striking one of the enhancements.   We conclude that their reliance on Tassell was misplaced and the appellate decisions are incorrect.

In People v. Tassell, supra, 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1, the Supreme Court held:  “Enhancements for prior convictions—authorized by sections 667.5, 667.6 and 12022.1 ․” are the type of enhancements which go to the nature of the offender.   We respectfully suggest the Supreme Court erred by stating that section 12022.1 authorized an enhancement for a prior conviction.   What section 12022.1 authorizes is an enhancement for a felony committed while on bail on another felony.   However a section 12022.1 enhancement is one that goes to the nature of the offender.  (People v. Warriner (1988) 200 Cal.App.3d 1352, 1356, 247 Cal.Rptr. 197.)

In Tassell the Supreme Court held enhancements which go to the nature of the offender have nothing to do with particular counts and are added only once in arriving at the aggregate sentence.   The Tassell holding is that the same prior prison term can be used only once to enhance the sentence imposed upon a defendant who has committed multiple felonies on a single occasion.   It does not hold that if a defendant has two prior prison terms, only one prior prison term enhancement may be imposed.   Nor does Tassell prohibit multiple consecutive enhancements when a defendant commits several different felonies while on bail for another felony.

As we pointed out in People v. Warinner, supra, 200 Cal.App.3d at page 1356, 247 Cal.Rptr. 197:  “The legislative intent of section 12022.1 was to punish recidivists with additional penalties.   The increased penalties here are due to Warinner's status as a repeat offender and arise as an incident of the subsequent offense․  [¶] This rationale is not changed by People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1․  [¶] 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․”

Each time Rojas committed a felony while on bail for another felony, he properly received an additional consecutive enhancement under section 12022.1.

The judgment is affirmed.

FOOTNOTES

FN1. All further statutory references are to this code unless otherwise specified..  FN1. All further statutory references are to this code unless otherwise specified.

ABBE, Associate Justice.

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