On bail enhancement (Pen. Code, § 12022.1) must be stricken where the offense the defendant was on bail for when he committed the new offense had been wobbled to a misdemeanor under section 17, subdivision (b) prior to a no contest plea. Reyes received two on bail enhancements because he committed new offenses while on bail facing felony second degree burglary charges. He appealed and filed a habeas petition, arguing that it was improper to impose the enhancements because the offense he was on bail for was ultimately wobbled to a misdemeanor under section 17, subdivision (b) before he pleaded no contest to the offense. Held: Enhancements stricken. Under section 12022.1, “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 . . . .” “‘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 . . . .” In People v. Walker (2002) 29 Cal.4th 577, the Supreme Court held that an on bail enhancement could not be imposed unless the primary offense results in a felony conviction. Walker provided a number of examples of how a primary offense could fail to result in a felony conviction, including the prosecution reducing the charge to a misdemeanor as part of a plea bargain or the court reducing the charge to a misdemeanor pursuant to section 17, subdivision (b). Because that is exactly what happened in this case, the on bail enhancement must be stricken. The Court of Appeal rejected the Attorney General’s arguments that this language in Walker was dicta that should not be followed and that the intent of the on bail enhancement (to prevent recidivism) would be undermined if a conviction of a misdemeanor in the primary case negated application of the enhancement.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B268282.PDF