Bail Jumping in a Felony Case

History of the Bail Jumping Statute in California

The legislative history shows that the purpose of Section 1320.5 was to “to deter bail jumping.” (Sen. Com. on Judiciary, analysis of Sen. Bill No. 395 (1983–1984 Reg. Sess.) p. 1; Sen. Republican Caucus, analysis of Sen. Bill No. 395 (1983–1984 Reg. Sess.) as amended June 16, 1983, p. 1.)

The language and history of section 1320.5 also reflect the California 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. Section 1320.5 applies to every person who is “charged with or convicted of” commission of a felony while released from custody on bail is subject to conviction.

Section 1320.5 applies to every person who is “charged with or convicted of” commission of a felony while released from custody on bail is subject to conviction. See Assem. Com. on Crim. Law & Pub. Safety, analysis of Sen. Bill No. 395 (1983–1984 Reg. Sess.) p. 2 [observing that the proposed legislation would subject a defendant who failed to appear on an underlying felony charge to conviction and sanctions, “even if the defendant was the victim of misidentification or was acquitted on the underlying charge”].)

The “On-Bail” Enhancement Provision of Section 12022.1

Under California Penal Code § 12022.1, if the defendant commits a felony while released on bail or recognizance then additional punishments can be imposed. The “on-bail” enhancement provision of Section 12022.1 generally applies if a defendant charged with a felony is released on bail, is subsequently arrested for committing a second felony while on bail, and is convicted of both felony offenses.

A sentence enhancement under section 12022.1 is not based on the same act or omission for which a defendant is subject to punishment under section 1320.5. The purpose of section 12022.1 extends beyond mere deterrence of bail jumping.

One legislative analysis observed that the bill would create another status-based enhancement, somewhat similar to section 667.5’s enhancement for prior prison terms, that would not focus on the circumstances of the crime. (Sen. Com. on Judiciary, analysis of Assem. Bill No. 692 (1981–1982 Reg. Sess.) as amended Jan. 25, 1982, p. 5.)

The purpose of section 12022.1 extends beyond mere deterrence of bail jumping. One legislative analysis observed that the bill would create another status-based enhancement, somewhat similar to section 667.5’s enhancement for prior prison terms, that would not focus on the circumstances of the crime. (Sen. Com. on Judiciary, analysis of Assem. Bill No. 692 (1981–1982 Reg. Sess.) as amended Jan. 25, 1982, p. 5.)

Another legislative report observed that those who opposed enactment of the statute did so partly because “no meaningful study of on-bail recidivism has ever been conducted.” (Sen. Democratic Caucus, Rep. on 3d Reading of Assem. Bill No. 692 (1981–1982 Reg. Sess.) p. 2.)

Definitions for the Felony Bail Jumping Enhancement

The term “primary offense” is defined to mean “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.

The term “secondary offense” means a felony offense alleged to have been committed while the person is released from custody for a primary offense.

Additional Two-Year Enhancement for Jumping Bail

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.

Providing Notice of the On-Bail Enhancement in the Complaint

The prosecutor must give the defendant notice that it intends to punish the person for the “on-bail” enhancement provision. The statute requires that the on-bail enhancement allegation provided in Section 12022(b) must be contained 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.

The on-bail enhancement must 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.