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Name: People v. Hernandez
Case #: F055430
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/22/2009

Penal Code section 12022.1, subdivision (b), which provides for a two-year enhancement for commission of a felony while on bail on a pending felony matter, requires compliance with section 1318 (release on a signed promise to appear). In 2004, appellant pled no contest to a felony offense. While pending sentencing, he was released on an emergency pass to visit his ill wife, but then failed to return. He did not sign a promise to appear prior to his release. In 2007, appellant was arrested for a new felony matter and ultimately convicted of that offense, with the court finding true an on-bail enhancement pursuant to section 12022.1. Appellant was sentenced to prison, with the term enhanced by two years for the on-bail enhancement. Analogizing section 12022.1, subdivision (b) to Penal Code section 1320 (failure to appear), the appellate court noted that a requisite element with both statutes is defendant’s release conditioned on his signed promise to appear, pursuant to section 1318. Here, appellant did not sign a promise to appear, and the emergency pass was not the equivalent of the promise to appear. Accordingly, the court reversed the on-bail enhancement and modified appellant’s sentence.