People v. ORIHUELA

Opinion

MORRISON, J.

In 2001 defendant pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and driving with a blood-alcohol level above .08 (Veh. Code, § 23152, subd. (b)), and was granted diversion pursuant to Penal Code section 1000.

While still participating in diversion, defendant missed a scheduled court appearance, and was thereafter charged with felony failure to appear after having been released on his own recognizance, pursuant to Penal Code section 1320, subdivision (b) (all further statutory references are to the Penal Code). Following his unsuccessful motion to set aside the information (§ 995), defendant was convicted following a court trial of felony failure to appear.

On appeal, defendant contends his conviction must be reversed because, as a matter of law, a person granted diversion pursuant to section

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1000 cannot be convicted of failing to appear under section 1320. The Attorney General concedes the error, and we agree: defendant’s conviction for felony failure to appear shall be reversed.

DISCUSSION

Section 1320 criminalizes the failure to appear following a release from custody on one’s own recognizance: it provides that every person charged with or convicted of committing a felony and “who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required” is guilty of a felony. (§ 1320, subd. (b).)

On the court minute order form showing that defendant was ordered to return to court on September 18, 2002, his status is noted by a mark in the box labeled “OR.” Other form minute orders entered following defendant’s diversion likewise indicated that defendant was released on his own recognizance following his diversion. Defendant’s failure to appear at his September 18, 2002 hearing formed the basis for his conviction.

The parties agree on appeal, however, that a defendant on diversion pursuant to section 1000 has not been released “on his own recognizance,” and thus cannot be guilty under section 1320 for failure to appear. They are correct.