Metropolitan News-Enterprise


Friday, September 10, 2004


Page 3


C.A.: Diverted Drug Defendant Did Not ‘Fail to Appear’


By a MetNews Staff Writer


A drug defendant granted diversion under Penal Code Sec. 1000 is not released on his own recognizance and cannot be prosecuted for failure to make a scheduled court appearance, the Third District Court of Appeal has ruled.

In an opinion filed Aug. 19 and certified for publication yesterday, Justice Fred K. Morrison said Abacut Beltran Orihuela was improperly convicted after a court trial before Yolo Superior Court Judge Michael W. Sweet of violating Penal Code Sec. 1320(b). That section provides that a person charged with or convicted 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.

Though a minute order indicated Orihuela had been ordered to return to court and the box stating “OR” was checked, since the judge granted diversion and Orihuela was still participating in the diversion program when he failed to appear in court, he was not in fact released on his own recognizance, Morrison explained.

He noted that the Attorney General’s Office conceded on appeal that the conviction was improper.

“[N]otwithstanding that a box checked on a minute order form indicates defendant was released on his own recognizance, he was not: he was diverted pursuant to section 1000,” the justice wrote.

Although Sec. 1000 prescribes a number of terms and conditions related to successful completion of drug treatment, “potential prosecution for failure to appear under section 1320 is not among them,” Morrison declared. Citing People v. Ormiston (2003) 105 Cal.App.4th 676, he added that no additional conditions “are authorized by the statute to insure subsequent court appearances.”

Ormiston, he noted, held that diversion “does not constitute a special custodial status or other form of release of the defendant with a promise to appear at further proceedings, but rather a guilty plea and resolution of the case” which amounts to a specialized form of probation for a particular class of defendants.

The case People v. Orihuela, C045963.


Copyright 2004, Metropolitan News Company