*1 Dist., Div. Three. G012722. Fourth Oct. 1993.] [No. PEOPLE,
THE Plaintiff Appellant, JIMENEZ, DURAN Defendant and Respondent. DAVID [Opinion partial publication.1] certified for Court, opinion certified for 976(b) Rules of rules 1Pursuant California I. exception part publication *2 Counsel Evans,
Michael R. District Maurice L. Chief Assistant Capizzi, Attorney, Wade, District Wallace J. Kathleen M. and Eric Attorney, W. Harper Snethen, Attorneys, District for Plaintiff and Deputy Appellant.
Michael Ian and Martha Allerton for Defendant and Garey Respondent. Opinion
WALLIN, J. Duran Jimenez the information demurred to charging David him with violation of Penal Code on the that the ground section 1320.5 bail does not The demurrer was sustained pending appeal. dismissed; the case was We reverse. and People appeal.
Jimenez was to 14 his to a following guilty sentenced years prison plea Code, (Health to sell cocaine. & He filed charge offering Saf. was affirmed and was released bail. His conviction remittitur 23 the district attorney issued on 1991. On August August notified Jimenez to his counsel return date was set for letter a bench warrant was issued September appear; 4. Jimenez failed was exonerated on January forfeited. The forfeiture 1992. Penal Code that Jimenez violated alleging filed complaint People with the 1320.5,2 who is which reads in “Every person part: bail, and who released from of a who is commission felony, as required, the court fails order to evade process was filed following preliminary An information of a felony.” is *3 hearing. information, that section claiming to the primarily
Jimenez demurred agreed, The trial judge to bail pending appeal. does not apply 1320.5 used (§ et the Legislature that in the bail statutes seq.) out pointing “It situations. not postconviction, with” to refer to preconviction, “charged to those with’ ‘charged applies to the court that the words [szc] would appear charges, for misdemeanor or felony where someone is trial facing situations convicted, are with those charged I don’t believe they Once are they [f] more; The trial judge convicted of those offenses.” are any they offenses the case and the district attorney appealed.3 dismissed
I*
II in trial court erred We with the district attorney agree only precon with a “charged felony” applying the construing phrase the legisla As we explain, while released on bail. viction failures to appear the 1320.5, bail statutes and the context of the of section tive history are the Penal Code. 2All further references prove attorney can whether the district every instance. But dissent is correct in factual 3The whether the before us is The sole issue the trier of fact at trial. his case is an issue for opinion on the express We no without leave to amend. properly sustained demurrer was yet sufficiency in a case not tried. of the evidence course, the other We, court file. On judicial superior notice of the power to take have instance, judicial hand, we can take which we use it. For for purpose we are limited as to the attacking a demurrer appeal from a sustained below on an presented of evidence notice (See, e.g., People v. Heitzman vague. unconstitutionally overbroad statute as 1400, 199].) a factual issue we cannot use it to resolve But Cal.Rptr.2d fn. 1 Cal.App.4th legal issues. us is limited brings this case before vehicle which procedural when the demurrer, “The defendant averments are true. presumed that all factual ruling it is In in evidentiary which discloses a defect material by bringing in strengthen his demurrer cannot 335, 895, Witkin, (3d 1985) italics Pleading, p. (5 § Procedure ed. . .” Cal. (pleading). . facially—not pleading is by demurrer is whether raised original.) question The sole 1002) as to (P.C. an issue law which raises pleading “A demurrer is factually—deficient. (4 Law Epstein, Cal. Criminal Witkin & accusatory pleading . . . .” sufficiency of the Witkin, 2127, 2498, Trial, original; Cal. 1989) p. italics (2d Proceedings § Before ed. 895, Procedure, 334.) Pleading, p. supra, § 1, ante, page 1175. *See footnote case law lead us to conclude the applicable must be interpreted both failures to pre- post-conviction Failure to was first made a crime in when the section which read: who passed “Every person with the commission of a who is released own felony on his to this recognizance article who fails to as he has pursuant 1959, (Stats. of a . . . .” ch. 3612- agreed, pp. In section repealed replaced which the failure changed from a intent to a general specific intent crime. (People Wesley 523-524 179], In In re 66 Cal.2d Smiley 427 P.2d Court *4 Supreme acknowledged that under section penalty applied to a failure to was and convicted of a postconviction appear. Smiley misdemeanor and sentenced to serve one in After fewa year jail. serving sentence, months of his he for a writ of habeas on the petitioned corpus he had not been grounds advised of his to counsel or of to a right his right denied, trial. The speedy writ was but for a Smiley’s subsequent application writ to the federal district court was The federal court him granted. ordered merits, released on own his on recognizance then pending hearing denied the because had failed to exhaust reme- application Smiley his state however, dies. The federal court if renewed his writ before provided, Smiley the California Court within 30 he would remain at on Supreme days, liberty his own recognizance. Court considered whether the of habeas was Supreme remedy corpus
available to one who was at on his own liberty recognizance. Noting bail, was available to habeas one released on the court found release corpus on was an alternative to bail” and should be treated recognizance “simply “It cannot be that release on lacks mean accordingly. argued recognizance sanctions: the defendant to file an ingful agreement requires times and ordered and waiving all writing promising appear places extradition if he to do California fails so outside apprehended ([] 1318.4), and makes wilful failure to as an appear punishable indepen 1319.4, ([] 1319.6). dent crime He is therefore under sufficient ... §§ (In constructive him to invoke the writ.” re Smiley, supra, permit 66 Cal.2d at p. (1983-1984 Sess.),
Senate Bill No. the source of 395 Reg. Office to was the Los District Attorney’s sponsored Angeles County when released on his between defendant’s remedy gap failure appear bail, which released on own when recognizance failure to appear
1179 not then bill offense. “This seeks to punishable separate remedy in the law it a offense ... to fail to oversight making Further, released when on bail on this bill is intended to felony charge. Saf., (Assem. deter bail Com. Crim. Law & on Pub. jumping.” (1983-1984 Sess.).) Analysis Sen. Bill 395 No. Reg.
There is no indication the to differentiate the Legislature intended failure on bail failure from the own nor is recognizance; there any indication the Legislature intended to deter those punish only failures that occur before “The bail conviction. purpose tois assure the when defendant’s attendance in court his re whether after re (In before or conviction.” quired, Underwood 345, Cal.3d See also P.2d In re Podesto 721]. Cal.3d P.2d
Jimenez covering out statutes admission to bail points distin between bail guish before conviction and bail (compare §§ 1270.5 & 1272.1). 1271 with 1272 & He this distinction argues supports §§ claim because his would specified have on appeal section 1320.5 had it so intended. We disagree. bail, 1 of title of the Penal
Chapter Code4 relates to and includes *5 articles with dealing the circumstances under which a specifically defendant (art. 1), (arts. be admitted may 3), to bail 2 indictment & bail upon (art. 4), (art. 5), 6), 7), (art. (art. exoneration forfeiture deposits (art. 8), recommitment of the defendant and on own release recognizance article, (art. 9). “Violations,” The 10th entitled contains only sections 1320 and for failure to while covering released on own penalties appear bail, assertion, and on to it recognizance Jimenez’s respectively. Contrary likely seems the intended these to the entire penalties rather than to a few selected chapter statutory sections. “The must language be construed context and the various a statute of ‘must be harmo parts nized the section in the of particular clause or context considering a [(1982) the framework as whole.’ v. Black Cal.3d (People 32 454, 1,] 5 104].)” 648 P.2d v. Cal.Rptr. (People Wesley, 198 supra, [184 at Cal.App.3d p.
Jimenez claims the meaning “charged” word plain applies only time a the before a determination of after found period being guilt; guilty, (See, defendant can be v. no considered People longer “charged.” e.g., (1990) Rhoads But section Cal.Rptr. has been situations after the 1320.5 where a defendant has fled applied 4Chapter 1 of title through 10 includes section 1320.5. i.e., “convicted,”
ascertainment of but guilt, before us to sentencing, leading the conclusion that a broader reading People In “charged” appropriate. (1988) 439], v. Cruz Cal.3d 752 P.2d Cal.Rptr. defend- ant entered a under a then guilty plea failed to for plea bargain, The trial court sentencing. and found the disapproved defendant bargain had waived his to withdraw right under section 1192.5 his failure plea reversed, Supreme Court the defendant’s misconduct finding could not be a breach as but be punished plea bargain could punished offense separate (See of failure to under section 1320.5. also People Vargas 223 Cal.App.3d 48] between applies period bargain and plea sentencing]; [section v. Mercant People 216 Cal.App.3d 1196 [265 between and did [three-year delay guilty plea 315] not sentencing justify denial of new for probation report; sanctions failure to exist 1320.5].) contends, under section The district and we attorney agree, before flight sentencing from to avoid the indistinguishable flight impo- sition of sentence. issue, there are no California cases
Although
with
the Su
dealing
Court of Nebraska reached
same
preme
conclusion when
interpreting
nearly
identical statute in State v. McDaniel
State P.2d cited by Kan.App.2d Jimenez, is The court in Miller a Kansas readily distinguishable. interpreted of an proscribing “willfully incurring forfeiture bond appearance to of failing following surrender oneself within date thirty days such forfeiture one who is with a and has by been released charged felony bond ... or a forfeiture of an willfully incurring bond and appearance failing surrender oneself within after thirty days his conviction of a final has become one who has been released on an felony appearance (Id. 1257.) bond court of this state.” Miller was by any under p. charged this statute with failure to at a revocation more than probation hearing one her conviction for theft. The year following prosecution argued “ ” convicted, with a meant ‘charged felony’ “persons already including those who are (Ibid.) of their sentences on serving portion The probation.” Kansas Court of held the did not to the failure Appeals at a revocation The court probation hearing. its case distinguished McDaniel, from 841], State v. supra, Neb. 53 N.W.2d out pointing “ that the Kansas statute under covered with a scrutiny specifically ‘charged and “‘conviction of a “The felony’” theft Miller felony.’” charge against sentenced, reached final when she was of judgment Miller on placement did not affect that That probation finality. conviction cannot therefore serve as the for a underlying felony failure to charge aggravated Because a revocation probation failure to hearing quasi-civil procedure, at such a is not a criminal offense and therefore does not hearing meet the of an for which the requirement underlying felony charge Miller, defendant failed (State v. 811 P.2d at appear.” supra, p. Jimenez correctly out when a points statute is of two penal susceptible constructions, in California policy dictates statute be construed as favor ably defendant as is reasonable. (People Overstreet Cal.3d 726 P.2d But we are also directed to construe the of the Penal Code provisions the fair “according import terms, their with a view to effect its and to (§ 4.) If objects promote justice.” Jimenez, we were to the construction adopt urged it would in a result conviction, harsher for a punishment defendant who flees before while innocence, cloaked with the than for a presumption defendant who flees conviction, after when the accusations him have against been found true. Furthermore, would, matter, such a construction as a make trial practical less their judges likely exercise discretion in favor of an appealing defendant when whether to bail on The more deciding permit appeal. sensible construction is that the failure to while released on bail when with a as a offense whether punishable occurring pre- post-conviction. is reversed. judgment
Sills, J.,P. concurred. MOORE, J. dissent because I believe the should be affirmed judgment I law, for a reason not discussed in the as a matter of majority opinion; 1182
defendant could not be convicted because in his court was not Defendant with required. Penal Code section violating based aon letter the district sent defendant’s attorney advising attorney both of them even there no September was though date, court order or on that nor was defendant agreement required on that date virtue of court when in that date was by being present set. a determination
Preliminarily, must be made whether a can take court. notice of its own records and files for the of a judicial purpose ruling demurrer to a criminal complaint.
While it a has been said court in a hearing demurrer criminal action (see subject cannot consider material to judicial notice v. Munic- Shortridge (1984) , 749])1 Court ipal Cal.App.3d even Cal.Rptr. held court there were where the exceptions, case concede including parties fact A similar the noticed. situation is here. The judicially district presented raised the of the issue letter’s to establish the attorney sufficiency requisite brief, notice in his the the conceding notice of only September hearing to defendant the letter his office given was sent to defendant’s counsel. Furthermore, it district was the who that the trial court attorney requested in on the demurrer take of ruling notice court file No. judicial superior C-73220. The defendant did not in object regard the except sufficiency The of the letter. trial court did in fact take of adequacy judicial notice file No. C-73220. Where trial court takes notice of one of its files judicial the or without court request parties objection, certainly appellate same, do the can when the letter relied the district especially upon by in contained file No. attorney only C-73220. that,
It is in the of a matter certainly interest where can be resolved justice files, notice of the court’s own court should taking judicial be permitted Shortridge disagree 1I judicial extent that case a court cannot take holds notice purpose matters in own in ruling upon of its records for of a demurrer a criminal case. Shortridge justifies opinion ruling its on the dissimilarities between Code of Civil Proce 430.30, (a) dure subdivision and Penal Code section 1004. Since the former statute expressly judicial ruling states a court on a demurrer may take notice when and the latter not, Shortridge does reasons the that a court not take judicial intended notice in criminal cases. (a) Code Civil periodic Procedure section subdivision is the result of amend date, provision judicial But ments. for notice was added in 1967. Prior to that comparable judicial Notwithstanding, section made no reference to the courts held notice. (Ferraris Levy hearing notice could judicial be utilized courts demurrers. v. 30]; Legg Mutual Health & Accident Cal.App.2d Cal.Rptr. 411-412 v. Benefit 595]; County Assn. Contra Cal.App.2d 487-488 [7 Taliaferro Thus, Costa for providing amendment . law, judicial declaratory existing notice was not a formulation of new law *8 (See to do so. v. Heitzman People Cal.App.4th fn. result, 199].) case, other Cal.Rptr.2d Any under the facts of this especially would be absurd.
Penal Code section 1320.5 who is provides, “Every person bail,'and the commission of a who is released from felony, who in order to evade the of the court process fails to Code, required, (Pen. of a felony. . . .” added.) italics § plain an language compels interpretation court, “to as required!’ to refer to the (See process order. People v. Wesley There was no such order or here process defendant to requiring on that date. a crime cannot be Surely, on the district predicated of a attorney’s mailing letter to a defendant’s attorney.
Nevertheless, the district relies on a letter his office attorney sent to defendant’s attorney counsel of the notifying and September hearing, both counsel and declaring defendant should The district appear. attorney’s letter did not invoke nor was it based on of court. any process Defendant’s did not agreement contain return court date. Nor did defendant agree to allow notice to his to serve attorney as his notification when the return court date was set. The lower court failed to order defendant back on a date when it specified received his admitted notice of him to bail. The district to the attorney fact that a bench points warrant was issued by the trial But, because of judge defendant’s failure to a bench warrant not be may issued in the absence of a court order giving time specific or an place agreement defendant to return at a time and specific Code, (Pen. 978.5.) place.
The district Penal attorney argues (b)2 Code section subdivision However, defendant’s compelled presence 4. that section does September not due negate process that a defendant requirement be notified his in court is Nor does that required. to be a mandate to defendant, is, rather, but a direction to the court regarding necessity 2That section as it read prior January pertinent part: states in “In all cases charged, which a present the accused must be arraignment, plea, at the at the time of during the preliminary hearing, during portions those the trial when evidence is taken fact, before the trier of and at the imposition time of the of sentence. The accused shall be personally shall, court, present proceedings at all other unless he with leave of execute in court, open counsel, right a written waiver of his to be personally present, approved by his court; however, which waiver must then be filed with the provided, may the court specifically direct that personally present defendant be any particular proceeding portion thereof. . . .” *9 Likewise, of defendant in the instances described. I am not persuaded the district reliance on cases attorney’s involving bond forfeitures. cases are distinguishable These from the case at In easily bar. cases, each of the bail bond forfeiture the defendant was when the present trial court set the date. subsequent appearance
Therefore, I respectfully submit that majority discussion interpre- unwarranted, tation of the law in case are untimely, I would affirm the for the stated unnecessary. reasons herein. judgment