Case Information
*1 Filed 1/15/14
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
(Shasta)
---- THE PEOPLE, C067395 Plaintiff and Respondent, (Super. Ct. No. 10F7532) v.
TESLA RENEE CARROLL,
Defendant and Appellant. APPEAL from a judgment of the Superior Court of Shasta County, James Ruggiero, Judge. Affirmed.
Joanne M. Kirchner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Tesla Renee Carroll appeals following a jury trial and conviction of two counts of failing to appear in court while on “own recognizance” (OR) release. (Pen. *2 Code, § 1320, subd. (b).) 1 Defendant argues the evidence was legally and factually insufficient, because a person is not on OR release absent an OR release agreement expressly containing all terms mandated by section 1318, and defendant’s OR release agreements failed to include statutorily mandated promises “to obey all reasonable conditions imposed by the court” and “not to depart this state without leave of the court.”
We conclude that the OR release agreement defendant signed here substantially complies with section 1318 and affirm. 2
FACTUAL AND PROCEDURAL BACKGROUND
By an amended information, defendant was charged with two counts of failure to appear on a felony (§ 1320, subd. (b)) for her failure to appear on June 25, 2010 and September 27, 2010 on a felony charge of receiving a stolen vehicle (§ 496d). The pleading also alleged that defendant served two prior prison terms. (§ 667.5, subd. (b).) 3 1 Undesignated statutory references are to the Penal Code.
Section 1320, subdivision (b), provides: “Every person who is charged with or convicted of the commission of a felony 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 . . . . It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.”
2
Each side filed a request for judicial notice of purported legislative history. We deny
the People’s November 16, 2011 request for judicial notice of a 1959 letter from a deputy
county counsel in Los Angeles to the Governor concerning pending legislation assertedly
introduced at the request of the county’s board of supervisors. Such a letter is not
cognizable legislative history absent some indication that it was communicated to the
Legislature as a whole before it voted on the bill. (
Kaufman & Broad Communities,
Inc. v. Performance Plastering Inc
. (2005)
3 Additionally, the pleading alleged two enhancements pursuant to section 12022.1 for committing an offense while on bail or OR, based on defendant’s alleged violation of
The Prosecution’s Case
On May 19, 2010, defendant was arrested on a felony charge of receiving a stolen vehicle. (§ 496d.) She was released from the jail on OR the same day after she signed a release agreement stating in pertinent part:
“IN CONSIDERATION OF BEING RELEASED ON MY OWN RECOGNIZANCE, I HEREBY AGREE AS FOLLOWS:
“A. To appear on June 25th, 2010, at 0830 A.M. in [the Redding court]. [¶] And will appear at all times and places as ordered by the Court or Magistrate and as ordered by any Court in which the charge is subsequently pending; and, [¶] . . . [¶]
“B. To waive extradition if apprehended out of the State of California after failure to appear as ordered; and
“C. That any court of competent jurisdiction may revoke the order of release and return me to custody, or require that I give bail or any other assurance as provided in Part 2, Title 10 of the Penal Code.
“D. FAILURE TO APPEAR CONSTITUTES A SEPARATE AND NEW MISDEMEANOR/FELONY. PUNISHABLE FOR A FELONY BY $10,000 FINE AND/OR IMPRISONMENT IN THE STATE PRISON, OR IN THE COUNTY JAIL FOR NOT MORE THAN ONE YEAR OR BOTH. FOR A MISDEMEANOR $1,000 FINE AND/OR ONE YEAR IN JAIL.
“E. OTHER: [blank]
“I have read and understand the information given hereon and acknowledge receipt of copy hereof and certify, under penalty of perjury, that all the information is true and correct.”
section 1320 while on OR from the original receiving a stolen vehicle charge. The court later granted the prosecution’s motion to dismiss the section 12022.1 allegations.
On June 15, 2010, a felony complaint was filed, charging defendant with receiving a stolen motor vehicle in violation of section 496d.
On June 25, 2010, defendant failed to appear in court as ordered on May 19, 2010, and the court issued a bench warrant.
On August 26, 2010, defendant was arrested on the warrant. That same day, she was again released on OR after signing a second release agreement, identical to the first agreement, quoted ante , but with a court date of September 27, 2010 at 8:30 a.m.
On September 27, 2010, defendant failed to appear in court as ordered on August 26, 2010. She was arrested on a warrant on September 30, 2010.
The custodial officers who signed defendant’s May 19 and August 26 OR release agreements testified that they explained each item on the release agreements to defendant and defendant signed the agreements, indicating she had read and understood the notices contained therein.
The Defense Case
Defendant’s fiancé, Stephen Blanchard, testified as a defense witness. He said it was his fault that defendant missed court both times. The first time, he was “having the dry heaves and passing kidney stones,” with “different colored . . . mucuses coming out of my body.” Defendant tried to get him to go to the hospital, but he would not go. Blanchard and defendant got to court between 2:15 and 2:45 p.m. Blanchard stayed outside. Defendant went inside, came back out, and they left. On the second scheduled date, they arrived at court around 10:30 a.m. Blanchard saw defendant speak to somebody in a jail administrative staff uniform. Blanchard did not hear what was said. Defendant and Blanchard then left the courthouse. They returned to the courthouse that afternoon, around 3:20 p.m. Blanchard stayed outside. Defendant went inside and came out 20 minutes later. Blanchard testified neither he nor defendant had access to a wireless telephone, because their phones “were stolen by the mission.” Blanchard admitted he is a convicted felon.
Verdict and Sentencing
The jury found defendant guilty on both counts of failure to appear. In a bench trial, the trial court found true the prior prison commitment allegations as to both counts.
The trial court subsequently sentenced defendant to the midterm of two years on count 1, a concurrent term of two years on count 2, and one year each for the two prior prison term enhancements under section 667.5, subdivision (b).
DISCUSSION
Defendant says she is making claims of legal and factual insufficiency of the evidence. She argues the evidence is factually insufficient to show failure to appear while on OR release, because “own recognizance” requires literal compliance with section 1318 and, in a footnote, she argues that “the evidence [was] factually insufficient because the jury was not instructed to determine whether [defendant’s] release agreements satisfied section 1318.” She further contends in the footnote that the evidence is legally insufficient because the trial court should not have submitted the case to the jury after determining the agreements did not satisfy section 1318.
The instruction conference was held off the record and not later memorialized on the record. Consequently, the record is silent on the genesis of the court’s instruction on section 1320. 4 And defendant fails to show that prior to trial she moved the court to 4 No pattern instruction is provided for section 1320 prosecutions in CALCRIM or CALJIC. The trial court instructed the jury as follows:
“Defendant is accused in Counts 1 and 2 with failure to appear after release upon own recognizance in violation of Penal Code section 1320(b). [¶] In order to prove Defendant guilty of these crimes, each of the following elements must be proved: [¶] (1) Defendant was charged with the commission of a felony; [¶] (2) Defendant was released from custody on her own recognizance; AND [¶] (3) And [ sic ] the defendant willfully failed to appear as required, with the specific intent to evade the process of the court. [¶] If you conclude beyond a reasonable doubt that the People have proven that Defendant willfully failed to appear within 14 days of the date assigned for her appearance, you *6 dismiss under section 995 on the ground that she was not on OR release or moved for a judgment of acquittal under section 1118.1 on that ground during her trial. The People do not argue that defendant has forfeited her contentions. Rather, the People say this appeal presents questions of law regarding statutory interpretation, which should be addressed on appeal.
“ ‘It is well settled that the interpretation and application of a statutory scheme to
an undisputed set of facts is a question of law . . . which is subject to de novo review on
appeal . . . .’ [Citation.]” (
Cal-Air Conditioning, Inc. v. Auburn Union School Dist
.
(1993)
The issues we decide in this appeal are (1) whether substantial compliance with the section 1318 terms can suffice for a section 1320 prosecution, and, if so, (2) whether as a matter of law the agreements here omitting terms immaterial to the section 1320 prosecution substantially complied with section 1318. 5
may, but are not required to, infer that Defendant specifically intended to evade the process of the court.”
5
Defendant referenced the due process clause in a heading in her opening brief, but
presented no constitutional analysis or authority other than saying a conviction based
on insufficient evidence violates due process. We need not consider this argument.
(
People v. Turner
(1994)
We answer both questions here in the affirmative. 6
California Constitution, article I, section 12 provides in part that a person “may be released on his or her own recognizance in the court’s discretion.”
Section 1318 provides:
“(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:
“(1) The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.
“(2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.
“(3) The defendant’s promise not to depart this state without leave of the court. “(4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.
reasonable doubt and unconstitutionally reduces the prosecution’s burden of proof.
We need not consider this argument either. As noted in
People v. Adams
(1990)
“(5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.
Section 1320, subdivision (b) (see fn. 1, ante ) criminalizes a willful failure to appear in court as ordered while on OR release. 7
Here, the contract signed by defendant contained everything required by section 1318 except for two items -- (1) a promise to obey all reasonable conditions imposed by the court or magistrate, and (2) a promise not to leave California without court permission. However, neither of these two items is implicated in this case. There is no allegation or claim that defendant left California. And the trial court did not impose any additional conditions.
Indeed, the requirement that a defendant agree to obey reasonable conditions
imposed by the court is not implicated in the context of a defendant who is released from
jail on his or her promise to make his or her first appearance in court. Until a defendant
makes that first appearance, a court cannot weigh the circumstances and impose
reasonable conditions. (
In re York
(1995)
Defendant relies on three cases for the proposition that a release agreement is not
an OR release subjecting a person to a section 1320 conviction for failing to appear in
court following OR release, unless the release agreement expressly contains each of the
five points set forth in section 1318. In
People v. Jenkins
(1983)
In
Jenkins
this court affirmed a trial court’s section 995 dismissal of an
information charging failure to appear (§ 1320), where the OR agreement signed by the
defendant failed to state that the defendant had been informed of the consequences and
penalties of violating the conditions of his release, a new requirement set forth in the
then-recently operative section 1318. The defendant, who had been released on his OR
by the court, cited this failure and this failure alone as the grounds for his motion.
(
Jenkins supra
,
Although section 1318 was operative at the time of the defendant’s OR release, the
agreement in
Jenkins
tracked the language and requirements of a predecessor statute
enacted in 1959, but repealed about four months earlier. (
Jenkins
,
supra
, 146 Cal.App.3d
at p. 25.) The agreement expressly stated the defendant agreed (1) he would appear as
ordered by the court, (2) waive extradition if apprehended outside of California, and
(3) the court could revoke OR and return him to custody or set bail. (
Id
. at pp. 24-25.)
Unlike here, the agreement did not include the statutorily mandated acknowledgment
that the defendant had been “ ‘informed of the consequences and penalties applicable
to violation of the conditions of release.’ (§ 1318, subd. (a)(4).)” (
Jenkins
,
The focus of this court in
Jenkins
was primarily the omission of the consequences
warning. The court referred to that new requirement as a “significant addition” and
expressly noted that “the signed agreement must include an acknowledgment that
defendant ‘has been informed of the consequences and penalties applicable to violation
of the conditions of release.’ ” (
Jenkins supra
,
However, this court in Jenkins declined to decide the applicability of the substantial compliance doctrine, though it mentioned the matter in dictum. In a footnote, again focusing solely on what it had noted was a “significant addition” to the statutory requirements, this court said: “ No evidence was presented to show defendant was ever actually informed of the consequences and penalties of his failure to appear . On appeal, the People request this court to take judicial notice of previous agreements signed by defendant in the justice court in the prosecution for receiving stolen property which did so inform him. [¶] A motion to dismiss challenges the sufficiency of the evidence before the magistrate. We need not decide whether substantial compliance will excuse literal compliance or, if so, whether the offered proof satisfactorily establishes substantial compliance with section 1318 because this proof was not introduced at the preliminary examination. The request to take judicial notice is therefore denied. [¶] We note that a policy of accepting proof of substantial compliance in lieu of literal compliance in the instant context has little to recommend it. Literal compliance with section 1318 is easily achievable and simple to prove while resolution of recurring issues of substantial compliance would cast a significant burden on the judicial system.” ( Jenkins , 146 Cal.App.3d at pp. 25-26, fn. 3, italics added.)
Thus, this court’s dictum in Jenkins related to whether there was substantial compliance with the requirement that defendants be put on notice of the consequences *12 of failing to appear. No reference whatsoever was made to the other recently added requirement -- that the defendant promise not to leave the state without the permission of the court. Thus, the court was not called upon to decide whether substantial compliance would apply where a defendant was informed of the consequences of failing to appear, but not warned about the consequences of leaving the state. And the statutory requirement that a defendant promise to abide by reasonable conditions imposed by the court -- a requirement that is not relevant in a situation where a defendant is released from jail on the promise to make a first appearance in court -- had not yet been enacted, so this court was not faced with the prospect of deciding whether the substantial compliance doctrine might apply if that item were omitted.
In
Mohammed
, unlike here, there was no written agreement in the prosecution
for failure to appear. (
Mohammed
,
supra
,
The
Mohammed
court acknowledged this court’s discussion of the substantial
compliance doctrine in
Jenkins
, noting that discussion was dictum. (
Mohammed
,
The court in
Mohammed
further reasoned that allowing substantial compliance
with section 1318 would condone the trial court’s disregard for a legislative enactment.
(
Mohammed
,
supra
,
In
Hernandez
the trial court temporarily released the defendant from custody
before sentencing to allow him to visit his sick wife, on the condition that he return to
court for sentencing the following week. (
Hernandez
,
supra
, 177 Cal.App.4th at
p. 1186.) The defendant orally promised to return but, like the defendant in
Mohammed
and unlike here, never signed a formal written agreement under section 1318. Thereafter,
the defendant failed to return to court. The defendant was later arrested and convicted
for a new theft offense. Additionally, an enhancement for commission of a crime while
released from custody on bail or OR (§ 12022.1, subd. (b)) was found true (
Hernandez
,
supra
, at p. 1186). On appeal, the court struck the sentence enhancement because the
defendant was not out on bail, and the emergency pass to visit his wife was not an OR
release consistent with section 1318. (
Hernandez supra
, at p. 1190.) The Fifth
*14
Appellate District said, “We concur with
Mohammed
and
Jenkins
that the Legislature
intended to make compliance with section 1318, including the necessity of a signed
release agreement containing the required stipulations, an essential part of what
constitutes an O.R. release.” (
Hernandez
,
Here, we are called upon to decide the issue undecided in
Jenkins
-- whether
substantial compliance may ever excuse literal noncompliance with section 1318.
8 8
By motion filed January 31, 2012, defendant requested that this court take judicial
notice of legislative history of an irrelevant 1996 amendment of section 1320, which
added that the offense of failure to appear applies to persons
convicted
of a crime, as well
as persons
charged
with a crime. Defendant argues the history is relevant because the
amendment was enacted to abrogate an appellate court decision, and since the Legislature
has not amended section 1318 to abrogate
Jenkins
, that means the Legislature endorses
Jenkins
. However, in the absence of legislative history acknowledging
Jenkins
, this is
“ ‘ “ ‘ “ ‘a weak reed upon which to lean,’ ” ’ ” ’ ” and much more than this is required
before an inference of acquiescence is elevated to implied legislation. (
Wallace v.
McCubbin
(2011)
And we do so in circumstances that are materially different from the circumstances presented in Jenkins Mohammed , and Hernandez . We conclude that in this case, the doctrine of substantial compliance applies, and we decline to follow Mohammed because that court relied upon inapposite contract law.
The People argue we should overrule
Jenkins
and affirm the judgment. However,
we can uphold defendant’s conviction without overruling
Jenkins
, because
Jenkins
expressly acknowledged the potential applicability of substantial compliance but declined
to decide the issue. “ ‘Language used in any opinion is of course to be understood in the
light of the facts and the issue then before the court, and an opinion is not authority for a
proposition not therein considered.’ ” (
People v. Scheid
(1997)
First, the “significant addition” to section 1318 upon which this court in Jenkins focused -- the warning about the consequences of failing to appear -- was in the written agreement defendant signed here. No claim can be made that defendant was unaware she could be prosecuted for failure to appear. We have little difficulty concluding that a written agreement that does not include a consequences warning could never be held to substantially comply with section 1318. But that is not what happened here, and had the written agreement in this case been at issue in Jenkins , there would have been reason to apply the substantial compliance doctrine.
Second, the two clauses missing from the release agreement -- not to leave the state and to obey any reasonable conditions imposed by the court -- are completely immaterial to defendant’s section 1320 violation. Defendant did not leave the state and she is not being prosecuted for violation of conditions added by the court. Indeed, a *16 defendant cannot be prosecuted under section 1320 for leaving the state or for disobeying conditions imposed by the court. Section 1320 punishes a willful failure to appear, nothing else. In that regard, the only clauses in section 1318 that directly relate to a defendant’s failure to appear are the promise to appear (§ 1320, subd. (a)(1)) and the consequences warning (§ 1320, subd. (a)(5)), the latter of which fairly puts a defendant on notice that a failure to appear will result in a new prosecution.
Third, apart from the fact that a defendant cannot be punished under section 1320
for disobeying reasonable conditions imposed by the court, the required promise to obey
such conditions does not apply in the context of a release from jail by jailers on a promise
to make a first appearance in court. Thus, for this additional reason, that promise is
immaterial to a failure to appear prosecution. Nothing has been presented to us to
suggest that the Legislature intended that a failure to appear prosecution may not go
forward when a written agreement does not include an acknowledgment and promise that
could not have bearing on the defendant’s failure to appear at an initial appearance in
court as ordered. To the contrary, as noted
ante
, the Legislature added the court-imposed
conditions clause to allow courts (not jailers) “to weigh considerations relating to the
public safety that extend beyond those intended to ensure subsequent court appearances.”
(
York supra
,
Fourth, in this case, there is no significant burden on the judicial system to hold that an otherwise complete and executed written release agreement is valid as an OR release despite the absence of clauses that are not at issue in the particular prosecution. Unlike in Jenkins and Mohammed , no additional evidence or proof is required to prove that defendant promised to appear and was given the key warning about the consequences of failing to appear.
We agree with Mohammed to the extent it holds that a section 1320 conviction will not stand when there was no signed written agreement. There is a certain level of formality and solemnity associated with a writing signed by the defendant. And without a writing, there will be proof problems as to what a defendant was told and his or her acknowledgment thereof. A writing containing a promise to appear and an acknowledgment of the consequences for failing to do so, signed by the defendant, is an absolute prerequisite, without which there could never be substantial compliance.
On the other hand, we respectfully disagree with Mohammed ’s blanket holding that the substantial compliance doctrine is inapplicable to section 1318. Further, we do not agree with the Mohammed court’s reliance on the principle that the doctrine of substantial compliance applies only to bilateral contracts and therefore cannot be applied to OR release agreements because they are analogous to unilateral contracts. 9 The noncompliance in the OR release agreement context is the government’s noncompliance with a statute (§ 1318), not a party’s noncompliance with a contract. Therefore, contract law is not controlling here.
Where the question is compliance with a
statute
, different rules are in play. Even
if a statute is considered mandatory, substantial compliance may suffice in some
circumstances if the purpose of the statute is satisfied. (
People v. Superior Court
(
Zamudio
) (2000)
consequences that would follow from a particular construction and will not readily imply
an unreasonable legislative purpose’ ”]; 3 Sutherland, Statutes and Statutory Construction
(7th ed. 2008) § 57:26, p. 97 [substantial compliance with even mandatory provisions
may be legally sufficient].) For example, in
Zamudio
, our high court was called upon to
determine whether the trial court substantially complied with section 1016.5, which
requires trial courts to admonish defendants who enter guilty and no contest pleas about
three immigration consequences. The trial court expressly advised the defendant about
possible consequences leading to deportation or denial of naturalization, but did
not
advise him about the possible consequence of “exclusion from admission to the United
States.” (
Zamudio
,
supra
, at pp. 188, 189.) The
Zamudio
court wrote, “if defendant’s
circumstances at the time of his 1992 plea did not, in fact, allow for the possibility of his
subsequent exclusion from the United States in the event he were deported, the
advisements he received concerning deportation and naturalization would have been in
substantial compliance with the requirements of section 1016.5, in that they would have
informed defendant of the only consequences pertinent to his situation. Because the
record does not disclose whether defendant would have been eligible for readmission, we
are unable to conclude that the trial court erred in failing to deny defendant’s motion on
grounds of substantial compliance.” (
Zamudio supra
,
“Substantial compliance” means actual compliance in respect to the substance
essential to every reasonable objective of the statute, as distinguished from mere
technical imperfections of form. (
People v. Hoag
(2000)
The objectives of sections 1318 and 1320 are to ensure the accused’s future appearance in court and to protect public safety. (See York supra , 9 Cal.4th at pp. 1143- 1145; see also § 1270 [public safety is primary consideration for OR release].) Here, the written release agreements contained all terms pertinent to defendant’s section 1320 prosecution -- her promise to appear in court and the consequences of her failure to appear. The omitted items -- promises not to leave the state without permission and abide by reasonable conditions imposed by the court -- were immaterial to the section 1320 prosecution. The objectives of the statutes were satisfied. We conclude the substantial compliance doctrine applies in this situation, and that there was substantial compliance.
Defendant suggests in her reply brief that we cannot find substantial compliance
unless we conclude section 1318’s inclusion of the items omitted from her agreement was
pointless or optional. She cites
Kulshrestha v. First Union Commercial Corp
. (2004)
We observe this is not a matter for application of the rule of lenity -- that a
criminal statute must be interpreted to favor the criminal defendant. The rule of lenity
applies “ ‘ “only if two reasonable interpretations of the statute stand in relative
equipoise.” ’ ” (
People v. Soria
(2010)
DISPOSITION
The judgment is affirmed.
MURRAY , J. We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
10
Moreover, the rule of lenity does not necessarily apply every time there are two or
more reasonable interpretations of a penal statute. (
People v. Manzo
(2012) 53 Cal.4th
880, 889.) “Rather, the rule applies ‘ “only if the court can do no more than guess what
the legislative body intended; there must be an
egregious
ambiguity and uncertainty to
justify invoking the rule.” ’ [Citation.]” (
Manzo supra
,