Updated February 27, 2020
Penal Code 12022.1 PC is the California statute that imposes additional penalties on felony defendants who commit another felony while out on bail or OR release. Courts impose an extra two (2) years in State Prison if these defendants get convicted of both felonies.
12022.1 PC states that:
(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final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. In cases where the court has granted a stay of execution of a county jail commitment or state prison commitment, “primary offense” also means a felony offense for which a person is out of custody during the period of time between the pronouncement of judgment and the time the person actually surrenders into custody or is otherwise returned to custody.
(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 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.
(c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense, or in the information or indictment of the primary offense if a conviction has already occurred in the secondary offense, and shall be proved as provided by law. The enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing.
(d) 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 imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent.
(e) 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, any sentence for the secondary offense shall be consecutive to the primary sentence and the aggregate term shall be served in the state prison, even if the term for the secondary offense specifies imprisonment in county jail pursuant to subdivision (h) of Section 1170.
(f) 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, any sentence for the secondary offense shall be enhanced as provided in subdivision (b).
(g) If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony. Upon retrial and reconviction, the enhancement shall be reimposed. If the person is no longer in custody for the secondary offense upon reconviction of the primary offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody.
When people get arrested for a felony and then released, that felony is a “primary offense.” If they then commit another felony while the first case is pending, that felony is a “secondary offense.”
Example: Paula is released on bail for burglary (PC 459) in Los Angeles. Before her next court appearance, she steals a car and gets caught. In this case, burglary would be the primary crime. And grand theft auto (PC 487d1) would be the secondary crime because Paula committed it while out of custody for the burglary.
Defendants convicted of both primary and secondary felonies get an additional two years in prison. If defendants get convicted of the secondary felony first, the judge will impose the extra two years only if they later get convicted of the primary felony.
Example: Paula is charged with burglary as a primary crime and grand theft auto as a secondary crime. She gets convicted of auto theft first and is sentenced to prison. The judge “suspends” the two-year secondary crime enhancement pending the outcome of the burglary case.
Eventually, the D.A. drops the burglary charge. Therefore, Paula would not face an extra two years in prison because the primary crime was dismissed.
Sometimes defendants get sentenced to State Prison for a primary offense and to county jail for a secondary offense. In this situation, they will serve the two extra years in state prison. Not county jail.