P. v. Perez

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Filed 7/31/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE DAVID PEREZ,
Defendant and Appellant.
C078169
(Super. Ct. No. CRF 12-4740)
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.

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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
1 Further undesignated statutory references are to the Penal Code.

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sentenced to two years for the drug charge, doubled to four years for the strike, and to a
concurrent two-year midterm for the FTA. At his request, we dismissed defendant‟s
direct appeal (case No. C074641), and issued our remittitur on January 10, 2014.2
On November 18, 2014, defendant petitioned to recall his drug sentence as
provided by the Act. Later he supplemented his claim by contending the FTA should
now be deemed a misdemeanor FTA, not a felony FTA, characterizing the extant felony
FTA sentence as an “unauthorized” sentence.
The trial court granted defendant‟s petition to the extent it sought reduction of the
drug charge to a misdemeanor, but declined to reduce the FTA to a misdemeanor. The
court sentenced defendant to the lower term of 16 months in prison for the FTA, doubled
to 32 months for the strike.3 Defendant appealed.
DISCUSSION
There is no dispute that defendant‟s felony drug offense, committed in 2012, was
properly reduced to a misdemeanor, and no dispute that defendant timely moved for
2 The People assert--and defendant concurs--that defendant‟s conviction became final
upon issuance of the remittitur. The People then argue defendant‟s conviction was final
at that moment within the meaning of In re Estrada (1965) 63 Cal.2d 740. We agree that
the conviction became final for some purposes at that moment (see, e.g., 6 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, § 196, p. 481), but as we
held long ago, “finality” can mean different things. For retroactivity purposes, a
conviction does not become final until the time in which to petition for certiorari in the
United States Supreme Court has passed. (In re Pine (1977) 66 Cal.App.3d 593, 594-596
& fn. 2 [“The confusion as to what constitutes a „final judgment‟ within the meaning of
the principles announced in (Estrada), results from the multiple use of that term”].) The
People do not explain how defendant‟s abandonment of his appeal rendered his
conviction final for retroactivity purposes immediately upon issuance of the remittitur. In
any event, the parties impliedly agree the conviction became final sometime before the
Act passed.
3 For reasons not explained in the record or challenged on appeal, it does not appear that
the trial court imposed a new misdemeanor sentence on the drug charge. We decline to
address this point, as it is not briefed.

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recall and resentencing for that offense. In contesting the FTA‟s status as a felony charge
after the underlying charge has been reduced to a misdemeanor, defendant rests his
appeal on the purposes of the Act, and on one provision of the Act in particular.
The broad purposes of the Act are “to ensure that prison spending is focused on
violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime,
and to invest the savings generated from this act into prevention and support programs in
K-12 schools, victim services, and mental health and drug treatment.” (Ballot Pamp.,
Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.)
The specific provision of the Act defendant emphasizes is section 1170.18,
subdivision (k), which provides in full: “Any felony conviction that is recalled and
resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g)
shall be considered a misdemeanor for all purposes, except that such resentencing shall
not permit that person to own, possess, or have in his or her custody or control any
firearm or prevent his or her conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6.” (Italics added.)
Thus, defendant argues, with the exception of certain firearms offenses, the Act
declares that his drug offense must now be considered a misdemeanor for all purposes,
and he includes in those purposes what he characterizes as the reduction of his FTA
conviction from a felony to a misdemeanor.
Although we understand defendant‟s argument, we disagree.
The Act allows persons “ „currently serving‟ ” a felony sentence for an offense
that is now a misdemeanor to petition for recall of that sentence and for resentencing
under the Act, and allows persons who have served their felony sentence to apply to have
their “felony convictions „designated as misdemeanors.‟ ” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1092, 1093.) But language in the Act that makes felonies
misdemeanors for all purposes does not apply retroactively. (Id. at p. 1100.)

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The Act does not speak to pendent or ancillary offenses, but only to the offenses
listed therein. Defendant‟s drug conviction is now being treated as a misdemeanor “for
all purposes,” but that has no bearing whatsoever on the FTA charge.
Statutory authority to release a defendant on OR based on a written promise to
return to court, instead of requiring bail, commenced over a half-century ago. (See Stats.
1959, ch. 1340, § 1, pp. 3612-3613 [enacting former §§ 1319.4 & 1319.6, analogous to
current subds. (a) & (b) of § 1320, absent a specific intent element].) However, the
practice of OR release predated any statutory basis therefor. (In re Smiley (1967) 66
Cal.2d 606, 612.) In concluding a person released OR was in sufficient custody to bring
a habeas corpus action, our Supreme Court emphasized that “the statute requires the
defendant to file an agreement in writing promising to appear at all times and places
ordered and waiving extradition if he fails to do so and is apprehended outside California
[citation], and makes wilful failure to appear punishable as an independent crime.” (Id. at
p. 613; see § 1318 [describing contents of required written agreement].) 4
As we have observed before, “[t]he criminal conduct proscribed by section 1320,
subdivision (b), is grounded in the violation of a contractual agreement between a
4 Section 1320 reads in full as follows: “(a) Every person who is charged with or
convicted of the commission of a misdemeanor 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 misdemeanor. 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. [¶] (b) 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, and upon conviction shall be punished by a fine not
exceeding five thousand dollars ($5,000) or by imprisonment pursuant to subdivision (h)
of Section 1170, or in the county jail for not more than one year, or by both that fine and
imprisonment. 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.” (Stats. 2011, ch. 15, § 459 [part of 2011 Realignment Legislation].)

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defendant and the People.” (People v. Jenkins (1983) 146 Cal.App.3d 22, 28.) It is now
a specific intent crime (see People v. Wesley (1988) 198 Cal.App.3d 519, 522-524
[discussing statutory history]), and a crime of moral turpitude (see People v. Maestas
(2005) 132 Cal.App.4th 1552, 1556-1557), that is complete when the defendant willfully
fails to appear “in order to evade the process of the court.” (§ 1320, subds. (a) & (b).)
The severity of an FTA is not lessened by the outcome of the underlying charge,
because section 1320 applies to persons charged with or convicted of crimes. The
“convicted of” language was added to clarify that the statutes applied to persons on bail
postconviction, which had been uncertain before. (See People v. Jimenez (1993) 19
Cal.App.4th 1175, 1177-1181 [resolving issue as to section 1320.5 (the on-bail FTA
statute)], followed by Stats. 1996, ch. 354, §§ 2-3, pp. 2452-2453 [amending both section
1320 and 1320.5 to encompass postconviction FTAs].) The usage of “or”
unaccompanied by any indication that what follows is qualified, “indicates an intention to
use [or] disjunctively so as to designate alternative or separate categories.” (White v.
County of Sacramento (1982) 31 Cal.3d 676, 680.) A defendant is charged with crimes
contained in an accusatory pleading, which exists to provide defendant with notice of the
charges. (See People v. Fitzgerald (1997) 59 Cal.App.4th 932, 936; §§ 950, 952.) By
executing the written OR agreement required by section 1318, defendant acknowledged
the consequences for willfully failing to appear, and contrary to his view, the disposition
of whatever he was charged with is of no moment.
In People v. Walker (2002) 29 Cal.4th 577, our Supreme Court interpreted a
similar statute, providing for a penalty enhancement when a defendant who is on bail for
one offense commits another (§ 12022.1). The new offense committed while Walker was
out on bail was FTA while on bail (§ 1320.5), a statute similar to the FTA statute directly
at issue in this case (§ 1320, subd. (b)). Walker held that imposing separate punishment
for the FTA and the on-bail enhancement was appropriate, because the two statutes
served different purposes. In part, Walker observed that “[w]ith respect to section

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1320.5, the legislative history states explicitly that its purpose is „to deter bail jumping.‟
[Citations.] 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.” (Walker, at p. 583, italics added.)
As Walker pointed out, many things can happen to an underlying charge:
“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.” (People v. Walker, supra, 29 Cal.4th
at p. 587.)
Similarly, many things can happen to the underlying charge on a felony FTA,
including its reduction to a misdemeanor as occurred here. But none of these outcomes
alters the severity of the defendant‟s act at the time he or she willfully evaded the process
of the court.
Other cases involving a defendant‟s status are in accord with Walker.
For example, a felon in possession of a firearm cannot halt a prosecution for such
crime by attacking the validity of the underlying felony, because the offense is based on
that person‟s status at the time of possession. (See People v. Harty (1985) 173
Cal.App.3d 493, 499-500 [construing former section 12021; “the possible invalidity of an
underlying prior felony conviction provides no defense to possession of a concealable

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weapon by a felon”]; see also People v. Sanchez (1989) 211 Cal.App.3d 477, 479-481
[equivalent holding construing former section 12021.1].) 5
We extended this “status” rule in In re Watford (2010) 186 Cal.App.4th 684.
Watford was convicted of a sex offense in Massachusetts, and convicted in California of
failing to register as a sex offender; we affirmed his conviction on appeal. (Id. at pp. 686-
687.) Watford then successfully moved to set aside his plea in the Massachusetts case,
and the sex charge was dismissed. (Id. at p. 687.) Watford then sought habeas corpus
relief in this court, contending that by eliminating the underlying sex conviction, he
vitiated the conviction for failing to register. (Ibid.)
We rejected this view. (In re Watford, supra, 186 Cal.App.4th at pp. 687-694.)
We emphasized that the issue was whether “at the time of the failure to register, the
petitioner was under a legal duty to register.” (Id. at p. 690, italics added.) “The [sex
offender statute‟s] regulatory purpose is fulfilled by requiring the sex offender to register
based upon the fact of conviction until such time as the predicate conviction may be
invalidated.” (Id. at p. 691.) “The Legislature determined that persons convicted of sex
offenses present a sufficient risk to society to justify requiring them to register, and
holding them accountable for not registering, even if the predicate offense existing when
the offender fails to register is later invalidated.” (Id. at p. 693.)
Similarly, in this case, the Legislature has determined that a person released OR
while facing felony charges should be punished as a felon if she or he violates the
promise to appear, whereas a person released OR while facing misdemeanor charges
5 As defendant points out, section 17, subdivision (b), authorizing the reduction of
certain offenses to misdemeanors, uses the same “for all purposes” language as used in
the Act. (See People v. Rivera, supra, 233 Cal.App.4th at p. 1100.) When a felon‟s
conviction is reduced under section 17, subdivision (b), he or she is no longer treated as a
felon, absent an explicit statutory exception. (See People v. Park (2013) 56 Cal.4th 782,
793-795; People v. Gilbreth (2007) 156 Cal.App.4th 53, 57-58.)

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should be punished as a misdemeanant for breaching such promise. That is an eminently
rational distinction for the Legislature to make, and here, defendant was facing a felony
charge when he breached his promise, not a misdemeanor charge.
In short, the reduction of the underlying drug charge has no effect on defendant‟s
felony FTA charge, as the trial court properly concluded.
DISPOSITION
The order resentencing defendant under the Act is affirmed.
DUARTE , J.
We concur:
RAYE , P. J.
MAURO , J.

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