People v. Perez

California Court of Appeal Jul 31, 2015 No. C078169Published

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Holding. The reduction of an underlying felony charge to a misdemeanor under Proposition 47 does not retroactively reduce a conviction for felony failure to appear (FTA) to a misdemeanor. The severity of an FTA charge is determined by the defendant's status at the time of the willful failure to appear, and the subsequent disposition of the underlying charge is irrelevant.

Issues

Does the reduction of an underlying felony charge to a misdemeanor under Proposition 47 require the reduction of a related felony failure to appear (FTA) conviction to a misdemeanor?
Is the degree of an FTA crime dependent on the final outcome of the underlying charge?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The outcome of the underlying charge is irrelevant to the degree of the FTA crime.”

“The Act does not speak to pendent or ancillary offenses, but only to the offenses listed therein.”

“In short, the reduction of the underlying drug charge has no effect on defendant’s felony FTA charge, as the trial court properly concluded.”

Filed 7/31/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C078169

Plaintiff and Respondent, (Super. Ct. No. CRF 12-4740)

JESSE DAVID PEREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Yolo County, Paul K. Richardson, Judge. Affirmed.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Kevin L. Quade, Deputy Attorney General, for Plaintiff and Respondent.

When a person willfully fails to appear (FTA) after own recognizance release (OR) pending a felony charge, a charged FTA is a felony, but when the underlying charge is a misdemeanor, the FTA is a misdemeanor. (Pen. Code, § 1320, subds. (a) & (b).)1 After defendant Jesse David Perez was released OR on a felony drug charge, he was convicted of both the drug and felony FTA charges and sentenced to prison. He appealed, voluntarily dismissed his appeal, and his conviction became final in early 2014. On November 4, 2014, the People, acting through their reserved initiative powers, passed Proposition 47, the Safe Neighborhoods and Schools Act (the Act), which, among other things, reduced defendant’s drug charge to a misdemeanor. Defendant petitioned to modify his drug sentence under the Act, and also sought to have the FTA reduced to a misdemeanor, reasoning that because the underlying charge was now a misdemeanor “for all purposes” under the Act (see § 1170.18, subd. (k)), the FTA should be reduced to a misdemeanor. The trial court reduced the drug charge to a misdemeanor, declined to reduce the FTA, and sentenced defendant to prison based on the felony FTA. The gravamen of an FTA charge is that a person willfully evades court process after promising to appear in lieu of posting bail. That act--willfully failing to appear--is deemed by the Legislature to be more serious when the underlying charge is a felony. The outcome of the underlying charge is irrelevant to the degree of the FTA crime. Nothing in the Act changes this view. Accordingly, we shall affirm. PROCEDURAL BACKGROUND On July 24, 2013, defendant pleaded no contest to possession of a controlled substance and felony FTA, and admitted a strike (residential burglary). (Health & Saf. Code, § 11377, subd. (a); §§ 459, 667, subd. (e)(1), 1320, subd. (b).) Defendant was

People v. Perez

AI Brief

THE PEOPLE, C078169

JESSE DAVID PEREZ,

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