Proof of conviction of the primary offense is not an element of Penal Code section 12022.1 and is only required before penalty for the enhancement can be imposed. While on bail for another offense (primary offense), appellant committed two robberies and was convicted following a jury trial (secondary offense). At a subsequent court trial, an on-bail allegation and three prior strike convictions were found true. Appellant was sentenced to prison for 50 years to life, with the on-bail enhancement ordered to run concurrently. The Court of Appeal rejected the parties’ contention that the enhancement must be stricken because there was no proof that appellant had been convicted of the primary offense. Under section 12022.1, “[a]ny 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 state prison which shall be served consecutive to any other term imposed by the court.” With this language, conviction of the primary offense is not an element of a section 12022.1 enhancement. When the secondary offense has been adjudicated before the primary offense, the secondary-offense court may (1) stay imposition of the enhancement and, once the primary offense court has rendered judgment, either impose the enhancement or strike it or (2) alternatively, impose but stay execution of the sentence, pending resolution of the primary-offense prosecution. Because a concurrent sentence is not authorized, the Court of Appeal remanded to provide the trial court the opportunity to strike the enhancement if it so chose.

Because section 12022.1 is an enhancement that penalizes recidivist behavior, akin to the prior prison term enhancement, there is no constitutional right to a jury trial. Aggravating factors related to the “the fact of a prior conviction” by their recidivist nature (i.e. “served a prior prison term,” “was on probation or parole when the crime was committed,” “prior performance on probation or parole was unsatisfactory,” whether prior conviction qualifies as serious felony, whether a defendant’s prior convictions are numerous and of increasing seriousness, and whether the defendant served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b)) may be determined by a court. Like these examples, section 12022.1 penalizes recidivist conduct and does not relate to the commission of either the primary or secondary offense. In a footnote, the court found that any claim to a statutory right to jury trial was forfeited for appeal purposes for failure to object.