THE PEOPLE, Plaintiff and Respondent, v. DANIEL WALKER, Defendant and Appellant, 29 Cal. 4th 577

Opinion BAXTER, J. In this case, we are asked to determine whether a defendant who is convicted of the felony of willfully failing to appear in court as required while on bail, a violation of

section 1320.5 of the Penal Code, is subject, in addition to the sentence that statute prescribes, to a consecutive two-year sentence enhancement under

section 12022.1.

Section 12022.1 applies generally 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. Application of settled rules of statutory construction leads us to conclude that the Legislature intended

section 12022.1 to apply where, as here, the only felony the defendant commits while released on bail is a failure to appear in violation of

section 1320.5. We further conclude that, because a

section 12022.1 sentence enhancement is not based on the same act or omission for which punishment is authorized under

section 1320.5, sentencing under both statutes may be imposed without violating

section 654’s bar against multiple punishment. Factual and Procedural Background The facts relevant to the legal issues presented are undisputed. In February of 1998, defendant Daniel Walker was charged in case No. 62-344 with three counts of first degree residential burglary (§ 459) and one count of grand theft of a firearm (§ 487, subd. (d)). Defendant was released on bail and ordered to appear in court on April 2, 1998.

Defendant failed to appear in court as required and was charged in case No. 62-2191 with the offense of willful failure to appear in court while released on bail. (§ 1320.5.) The information in case No. 62-2191 also alleged, as a basis for enhancing defendant’s sentence under

section 12022.1, that defendant committed the failure-to-appear offense while he was released from custody on bail in case No. 62-344. Defendant subsequently was apprehended. In case No. 62-344, the prosecution successfully moved to amend to add one count of receiving stolen property (§ 496, subd. (a)), and a jury subsequently convicted defendant of all of the burglary, grand theft, and stolen property charges. In case No. 62-2191, defendant pleaded guilty to the failure-to-appear charge and admitted as true the enhancement allegation that he committed that offense while released on bail.

As relevant here, defendant’s sentence included a term of eight months (one-third the middle term) for the failure-to-appear offense (§ 1320.5), plus a consecutive sentence of two years for the sentence enhancement (§ 12022.1). The Court of Appeal, in a split decision, upheld defendant’s sentence insofar as it imposed punishment under

section 1320.5 and

section 12022.1. We granted defendant’s petition for review. Discussion Defendant contends the imposition of enhanced punishment under

section 12022.1 is inappropriate for two reasons. As a matter of statutory construction, he argues,

section 12022.1 does not apply when a defendant’s only on-bail offense is a willful failure to appear in violation of

section 1320.5. In any event, he asserts, the imposition of punishment under both sections 1320.5 and 12022.1 violates

section 654’s prohibition against multiple punishment of

an act or omission, i.e., the single act of failing to appear in court while released on bail. We address these contentions in order. A. Legislative Intent Does the two-year sentence enhancement provided in

section 12022.1 apply when a defendant’s only on-bail offense is a willful failure to appear in court as required, in violation of

section 1320.5? In this part of our analysis, we must ascertain what the Legislature intended when it enacted sections 1320.5 and 12022.1. We begin by examining the words of the respective statutes; if the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the language governs. (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227 [120 Cal.Rptr.2d 795, 47 P.3d 639] (Allen); People v.

Coronado (1995) 12 Cal.4th 145, 151 [48 Cal.Rptr.2d 77, 906 P.2d 1232] (Coronado).) If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. (Ibid.) In such situations, we strive to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purposes. (Ibid.) We will avoid any

interpretation that would lead to absurd consequences. (Ibid.)

Section 1320.5 defines a substantive criminal offense and the punishment therefor as follows: “Every person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony. Upon a conviction under this section, the person shall be punished by a fíne not exceeding ten thousand dollars ($10,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both the fine and imprisonment.

Willful failure to appear within 14 days of the date assigned for appearance may be found to have been for the purpose of evading the process of the court.” As reflected by its terms,

section 1320.5 specifies no limitation whatsoever on the circumstances of its operation. Unlike

section 1320.5,

section 12022.1 does not define a criminal offense; instead, it identifies circumstances under which a defendant charged with a substantive offense is subject to a sentence enhancement. Specifically,

section 12022.1 provides that if a person charged with a felony (the primary offense) is released on bail or on his or her own recognizance and subsequently is arrested for committing another felony (the secondary offense) while released from custody on the primary offense, and if that person is convicted of both offenses, he or she “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.” (§ 12022.1, subds. (a), (b), (d).) The language of

section 12022.1 provides no exception to its application in the event that the defendant’s only secondary offense is a violation of

section 1320.5. To the contrary,

section 12022.1 is phrased in unqualified terms stating that “[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.” (Id., subd. (b), italics added.) The plain meaning of these terms strongly suggests that the Legislature intended

section 12022.1 to apply to secondary felony offenses of any kind without restriction, including violations of

section 1320.5. Fairly read, the broad and compulsory nature of the language appears to require courts to impose the two-year enhancement no matter what type of secondary felony offense the defendant commits, so long as the defendant is convicted of both the primary and the secondary offenses. (§ 12022.1, subd. (b); see also id., subds. (a), (d)-) Not only do

section 1320.5 and

section 12022.1, by their own terms, apply without restriction when their respective statutory requirements are satisfied, but the legislative history confirms that the two provisions serve distinct purposes and authorize punishment for different reasons. With respect to

section 1320.5, the legislative history states explicitly that its purpose is “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 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. (§ 1320.5 [every person who is “charged with or convicted of’ commission of a felony while released from custody on bail is subject to conviction (italics added)]; 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 legislative history, however, indicates that the purpose of

section 12022.1 extends beyond mere deterrence of bail jumping. Notably, 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.) As these reports reflect, the Legislature evidently views those who qualify under

section 12022.1—defendants convicted of both the primary felony and the secondary felony—as being particularly deserving of increased punishment for their on-bail recidivism. Indeed, defendants who willfully fail to appear in court as required for felony charges of which they ultimately are convicted are more blameworthy than defendants who willfully fail to appear for felony charges that ultimately are dismissed or reduced, or result in acquittal. Application of both statutes, therefore, leads to the rational result that the more culpable offenders receive the greater punishment. This construction is consistent with our prior recognition that “the purpose and intent behind a

section 12022.1 enhancement, generally speaking, is . . .to penalize recidivist conduct with increased punishment.” (People v. McClanahan (1992) 3 Cal.4th 860, 868 [12 Cal.Rptr.2d 719, 838 P.2d 241]; see also People v. Warinner (1988) 200 Cal.App.3d 1352, 1356 [247 Cal.Rptr. 197] [“The legislative intent of

section 12022.1 was to punish recidivists with additional penalties.”].) The legislative history further indicates that the Legislature was cognizant of an analogous failure-to-appear offense (§ 1320, added by Stats. 1979, ch. 873, § 13, p. 3043 [defining misdemeanor and felony offenses for failure to appear while released on one’s own recognizance]) when it enacted

section 12022.1 in 1982 (added by Stats. 1982, ch. 1551, § 2, p. 6050). Specifically, an analysis of the bill proposing

section 12022.1’s enactment commented: “Failure to Appear. Current law provides for criminal sanctions for failure to appear after being released on one’s own recognizance or on 10% deposit (for a misdemeanor). Would this bill provide for double punishment for these crimes?” (Assem. Com. on Crim. Justice, analysis of Assem. Bill No. 692 (1981-1982 Reg. Sess.) p. 3.) Although the bill analysis contained no response to this question, the Legislature ultimately selected statutory language that stands unqualified and unrestricted in its application to felony offenses. These circumstances provide yet another basis for inferring that the Legislature did not intend to disallow

section 12022.l’s application to a failure-to-appear offense. In urging we should not presume that the Legislature meant what it said when enacting the subject statutes, the dissent cites In re Shull (1944) 23 Cal.2d 745 [146 P.2d 417] (Shull). The dissent contends that Shull provides analogous support for interpreting

section 12022.1 as being inapplicable when the only secondary offense of which the defendant is convicted is a violation of

section 1320.5. The proffered analogy fails to persuade. In Shull, the issue was whether a defendant who was convicted of the crime of assault with a deadly weapon (§ 245) and received a 10-year sentence for that offense, also was subject to an additional five- to 10-year sentence under

section 3 of the Deadly Weapons Act. (Shull, supra, 23 Cal.2d at pp. 747-748.) Shull concluded that the Legislature had not intended the additional sentence authorized by the Deadly Weapons Act to apply to a defendant convicted of assault with a deadly weapon. (Id. at p. 751.) Shull inferred this lack of intent from the fact that the essential factors of the substantive crime and the sentence enhancement were effectively identical and turned solely on the defendant’s being armed with a deadly weapon: “[T]he Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that for the same offense without any additional factor existing the added punishment should be imposed.” (Shull, supra, 23 Cal.2d at p. 751.) Accordingly, Shull found that the enhancement was not intended to apply where the only substantive offense at issue was an assault with a deadly weapon.

The statutes before us present no parallel or similar situation. Here, the most that can be said is that the substantive crime (§ 1320.5) and the sentence enhancement (§ 12022.1) share a common element insofar as both statutes seek to punish a defendant who commits a crime while released on bail. But as discussed, the gravamen of

section 1320.5 is the defendant’s act of jumping bail and consequent evasion of the court’s process, while

section 12022.1 turns on the defendant’s on-bail recidivism. Because the two statutes have distinct aims and punish for different reasons, the dissent’s attempt to analogize to Shull fails. In a similar vein, defendant argues that punishment should not be imposed trader both statutes because

section 1320.5 is a “specific” or “special” statute proscribing bail jumping that applies to the exclusion of

section 12022.1, a “general” statute authorizing additional punishment for the same conduct. We recently stated that “[t]he ‘special over the general’ rule . . . does not apply . . . unless ‘each element of the “general” statute corresponds to an element on the face of the “specific” . . . statute’ or ‘it appears from the entire context that a violation of the “special” statute will necessarily or commonly result in a violation of the “general” statute.’ ” (Coronado, supra, 12 Cal.4th at pp. 153-154, citing People v. Jenkins (1980) 28 Cal.3d 494, 502 [170 Cal.Rptr. 1, 620 P.2d 587].) The rale is not one of constitutional or statutory mandate, but serves as an aid to judicial

interpretation when two statutes conflict. (See In re Williamson (1954) 43 Cal.2d 651, 654 [276 P.2d 593].) Plainly, the terms of sections 1320.5 and 12022.1 are not identical;

section 12022.1 contains a significant requirement that has no counterpart in

section 1320.5, i.e., the defendant must be convicted of the primary offense before punishment can be imposed. Although

section 12022.1, strictly speaking, does not appear to make the defendant’s conviction of the primary offense an element of the enhancement in order to prove the enhancement, the statute makes crystal clear that imposition of the enhancement requires conviction of the primary offense at some stage of the proceedings. (§ 12022.1, subds. (b), (c), (d); see People v. McClanahan, supra, 3 Cal.4th at pp. 869-871.) A review of the legislative history discloses that the Legislature crafted

section 12022.1 in this manner because the enhancement posed “some difficulties of application because of the contingent nature of the triggering event, i.e., conviction for the first felony.” (Sen. Com. on Judiciary, analysis of Assem. Bill No. 692 (1981-1982 Reg. Sess.) as amended Jan. 25, 1982, p. 2.) Because defendants who commit primary and secondary offenses in different counties often would be tried on their primary offense after a trial on their secondary offense (id. at pp. 2-3), and because defendants could be acquitted on the primary offense after being found guilty on the secondary offense,

section 12022.1 was structured to stay imposition of the enhancement pending imposition of the sentence for the primary offense and to stay imposition of the enhancement permanently on a defendant’s acquittal of the primary offense (§ 12022.1, subds. (b), (c), (d)). But because a conviction on the primary offense is an essential prerequisite to the imposition of punishment under

section 12022.1, it must be taken into account for purposes of applying the special-over-general rale in the context of this case. With this understanding, we conclude defendant has not shown satisfaction of the special-over-general rale here. First, he cannot show that the primary offense conviction requirement of

section 12022.1 corresponds to any element on the face of

section 1320.5. (See Coronado, supra, 12 Cal.4th at p. 154; People v. Jenkins, supra, 28 Cal.3d at p. 502.) Second, the record before us contains no evidence indicating that a violation of

section 1320.5 will necessarily or commonly result in the imposition of punishment under

section 12022.1. (See Coronado, supra, 12 Cal.4th at p. 154; People v. Jenkins, supra, 28 Cal.3d at p. 502.) Indeed, as the People point out, a charge on a primary offense can fail in any number of ways to result in a felony conviction and defeat

section 12022. l’s application.

For example: (1) the prosecutor might move to dismiss the felony charge for insufficient evidence or after suppression of the evidence (§§ 1385, 1538.5); (2) the court might dismiss the charge or set aside the indictment or information (§§ 871, 995, 1385) or enter a judgment of acquittal before submission of the case to the jury (§ 1118.1); (3) the prosecutor might move to dismiss the charge in the interests of justice or reduce it to a misdemeanor as part of a plea bargain; (4) the court might reduce the charge to a misdemeanor (§ 17, subd. (b)); (5) the jury might acquit the defendant; or (6) the conviction might be reversed or dismissed on a state or federal writ of habeas corpus.

Legislative history further undermines the suggestion that defendants convicted and punished under

section 1320.5 will necessarily or commonly receive punishment under

section 12022.1. For instance, when the Legislature amended

section 1320.5 in 1985 to make the failure-to-appear offense a felony rather than a misdemeanor, a number of legislative reports explained: “According to the Los Angeles District Attorney, the sponsor of this bill, failure to appear (FTA) when released on bail is occurring with alarming frequency in Los Angeles County. Because a conviction in an FTA case results in misdemeanor penalties, the sponsor claims that defendants accused of felonies with harsh penalties will fail to appear in order to postpone hearings and waste time, hoping that witnesses will disappear or forget what happened.” (Assem. Com. on Pub.

Safety, Rep. on Sen. Bill No. 1393 (1985-1986 Reg. Sess.) as amended May 6, 1985, p. 1; Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1393 (1985-1986 Reg. Sess.) as amended May 6, 1985, p. 2; Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 1393 (1985-1986 Reg.

Sess.) as amended May 6, 1985, p. 1.) At least one of these reports noted the following statistic provided by the Los Angeles District Attorney: “ ‘There are approximately 200 cases a year in Los Angeles County where defendants jump bail, are subsequently apprehended, but the underlying felony cannot be prosecuted due to the unavailability or poor recollection of witnesses.’” (Assem. Com. on Pub. Safety, Rep. on Sen. Bill No. 1393 (1985-1986 Reg. Sess.) as amended May 6, 1985, p. 1; see also Assem. Com. on Pub. Safety, Republican analysis of Sen. Bill No. 1393 (1985-1986 Reg.

Sess.) as amended May 6, 1985, p. 1 [“It often times pays to fail to appear. The memories of the victims fail or they move”].) If anything, this legislative history indicates that bail jumpers often are successful in avoiding convictions on the underlying felonies charged against them (i.e., the primary offenses to which

section 12022.1 refers). In sum, we conclude the Legislature intended the enhanced punishment of

section 12022.1 to apply even where the only secondary offense at issue is a willful failure to appear in court in violation of

section 1320.5. The statutory language admits no ambiguity on the point, and the legislative history affirmatively supports this construction. Put another way, because nothing in the statutory language or history reflects a legislative purpose to disallow additional punishment under

section 12022.1 when the only secondary offense is a violation of

section 1320.5, the construction that comports most closely with the Legislature’s apparent intent is one that gives effect to

section 12022.1 under such circumstances. (See Allen, supra, 28 Cal.4th at p. 227; Coronado, supra, 12 Cal.4th at p. 151.) B.

Section 654

Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (Id., subd. (a).) In this part of our opinion, we determine whether

section 654 prohibits imposition of both the sentence for the failure-to-appear offense (§ 1320.5) and the sentence enhancement (§ 12022.1) because, in defendant’s view, they are based on the same act or omission, for which defendant cannot be punished more than once. Coronado, supra, 12 Cal.4th 145, is instructive.

That decision observed, “there are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense.” (Id. at p. 156.) Coronado explained that the first category of enhancements is “attributable to the defendant’s status as a repeat offender” (e.g., § 667.5, subd. (b)), while, by contrast, the second category of enhancements “arise [s] from the circumstances of the crime and typically focus [es] on what the defendant did when the current offense was committed” (e.g., §§ 12022.5, 12022.7). (Coronado, supra, 12 Cal.4th at pp. 156-157.) Coronado reasoned that recidivist enhancements, such as prior prison term enhancements under

section 667.5, subdivision (b), are attributable to the defendant’s status as a repeat offender. (Coronado, supra, 12 Cal.4th at p. 156.) Because such enhancements “are not attributable to the underlying criminal conduct which gave rise to the defendant’s prior and current convictions,” they do not implicate multiple punishment of

an act or omission. (Id. at p. 158.) Coronado applied such reasoning to hold that “a single prior conviction and resulting prison term may be used both to elevate a violation of Vehicle Code

section 23152 to a felony under Vehicle Code

section 23175 and to enhance the sentence therefor under

section [667.5, subdivision (b)] without violating

section 654’s bar against multiple punishment of

an act or omission.” (Coronado, supra, 12 Cal.4th at p. 159, fn. omitted.) Turning to the enhancement statute before us, we find that

section 12022.1 authorizes the imposition of additional punishment whenever it is established that a defendant is a felony recidivist who committed a secondary offense while released on bail pending proceedings on a primary offense. Like a prior prison term enhancement, then, a

section 12022.1 enhancement turns on the status of a defendant as a repeat offender, not on what the defendant did when committing the current crime, i.e., the secondary offense. (People v. Warinner, supra, 200 Cal.App.3d at p. 1356; see People v. McClanahan, supra, 3 Cal.4th at p. 868 [“the purpose and intent behind a

section 12022.1 enhancement, generally speaking, is . . .to penalize recidivist conduct with increased punishment”]; Sen. Com. on Judiciary, analysis of Assem. Bill No. 692 (1981-1982 Reg. Sess.) as amended Jan. 25, 1982, p. 5 [“This bill would add another status enhancement of two years for committing any felony while out on bail”]; see also People v. McClanahan, supra, 3 Cal.4th at pp. 870-871 [acknowledging the correctness of People v. Tassell (1984) 36 Cal.3d 77, 90 [201 Cal.Rptr. 567, 679 P.2d 1], insofar as it described § 12022.1 as an enhancement that goes to the nature of the offender].) Because a

section 12022.1 enhancement does not punish a defendant for his or her conduct while committing an offense (here, willfully failing to appear in court as required in violation of

section 1320.5), but rather punishes the defendant for his or her status as a repeat offender while on bail, the enhancement does not constitute punishment of

an act or omission within the meaning of

section 654. Consistent with the reasoning of Coronado, supra, 12 Cal.4th 145, we hold that 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. Accordingly,

section 654’s bar against multiple punishment does not preclude the imposition of sentencing under both statutes. Disposition In this consolidated proceeding, defendant sustained convictions for at least one primary offense (§ 459, burglary) and one secondary offense (§ 1320.5, failure to appear) within the meaning of

section 12022.1. Because

section 1320.5 and

section 12022.1 serve different purposes and do not punish defendant more than once for a single act or omission, punishment under both statutes is appropriate. The judgment of the Court of Appeal is affirmed. Chin, J., Brown, J., and Moreno, J., concurred. Unless otherwise specified, all further statutory references are to this code.

Section 12022.1 provides in pertinent part: “(

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 ....[$] (2) ‘Secondary offense’ means a felony offense alleged to have been committed while the person is released from custody for a primary offense. [f] (

b) Any 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. [$] (

c) The enhancement allegation provided in subdivision (

b) shall be pleaded in the information or indictment which alleges the secondary offense ....[$] (

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.”

Section 1320.5 was not enacted until 1983. (Stats. 1983, ch. 403, § 1, pp. 1669-1670 [making it a misdemeanor for a person charged with a felony and released on bail to fail to appear].) Shull contrasted the substantive crime of assault with a deadly weapon with the substantive crime of simple assault, observing that the only difference between the two, and the only basis for the authorization of increased punishment for the former, is use of a deadly weapon as a factor. (Shull, supra, 23 Cal.2d at p. 750.) As People v. McClanahan, supra, 3 Cal.4th 860, explained, a

section 12022.1 enhancement addresses a “form of recidivism” (McClanahan, at p. 868), based not on a prior conviction, but on “the defendant’s commission of a new felony offense while released from custody on an earlier felony of which he is ultimately convicted,” even if the conviction of the earlier felony (the primary offense) occurs after both commission and conviction of the new felony (the secondary offense) (id. at p. 871).