APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. (Super. Ct. Nos. LF47891 & 29256)
The opinion of the court was delivered by: Kane, J.
CERTIFIED FOR PUBLICATION
Prior to sentencing on a 2004 felony conviction, appellant Alberto Hernandez, aka Ubaldo Hernandez Araiza, was temporarily released from custody by the trial court to allow him to visit his ailing wife on the condition that he return to court for sentencing the following week. Appellant did not return. He was later arrested in 2007 on a new felony charge of receiving stolen property. The criminal complaint against appellant included an alleged enhancement under Penal Code section 12022.1, subdivision (b),*fn1 on the ground that the crime of receiving stolen property was committed while appellant was released from custody on his own recognizance. Appellant was found guilty as charged and the subject enhancement was found true. Appellant appeals, contending the trial court erred in finding the enhancement true because there was no evidence that he was released on his own recognizance as that term is defined under applicable law. We agree and accordingly vacate the section 12022.1, subdivision (b), enhancement.
FACTS AND PROCEDURAL HISTORY
On October 27, 2004, in Merced County Superior Court, appellant was charged in an information alleging the following counts: (1) unlawful transportation of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11379, a felony; (2) unlawful possession for sale of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11378, a felony; (3) making criminal threats in violation of section 422; and (4) resisting arrest in violation of section 148, subdivision (a). On December 14, 2004, appellant entered pleas of no contest to counts one, three and four with the understanding that he would serve no more than one year in the county jail.
On January 18, 2005, appellant was released from custody on what the trial court referred to as an emergency pass. The release was granted on the condition that appellant obey all laws and return for sentencing on January 25, 2005. Appellant orally promised that he would do so. The sole purpose of the release was to allow appellant to visit his wife, who was going through a serious medical crisis.
In 2007, appellant was arrested after he was found with stolen checkbooks, bank cards and other stolen property in his possession. The criminal complaint accused appellant of receiving stolen property in violation of section 496, subdivision (a), a felony. It also alleged as an enhancement that appellant committed the crime while released from custody on bail or on his own recognizance within the meaning of section 12022.1, subdivision (b). The jury found appellant guilty of the felony charge. As to the enhancement, the trial court found that it was true because appellant "was arrested for the crime charged . while he was released from custody on his own recognizance on a pass [in the 2004 case]." Appellant was sentenced on May 8, 2008. As a result of the trial court‟s application of the section 12022.1 enhancement, appellant‟s total prison sentence was increased by two years. Appellant appealed.
Appellant contends the evidence was insufficient to support a finding that he committed a felony while released from custody on his own recognizance (or O.R.) within the meaning of section 12022.1. He argues that the trial court‟s grant of an emergency pass was not the equivalent of an O.R. release because it served a purpose other than ensuring appellant‟s return to court and, furthermore, appellant did not execute a written release agreement in accordance with section 1318. Respondent contends that the emergency pass granted by the trial court was in substance an O.R. release or the functional equivalent thereof, and therefore section 12022.1 was applicable. These claims require us to consider what the Legislature intended by use of the term "own recognizance" in section 12022.1.
In addressing questions of statutory interpretation and application, we apply a de novo review. "The proper interpretation of a statute is a question of law for our independent determination. [Citations.] Likewise, the application of a statute to undisputed facts is a question of law, subject to our de novo, or independent, review on appeal. [Citations.]" (People v. Salcido (2008) 166 Cal.App.4th 1303, 1311.) To the extent appellant‟s appeal challenges the trial court‟s determination of any disputed factual issue, we review the sufficiency of the evidence based on the familiar substantial evidence test. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
II. Emergency Pass Was Not O.R. Release for Purposes of Section 12022.1
The particular issue before us is whether the trial court‟s emergency pass allowing appellant to visit his ailing wife comes within the intended scope of the phrase "released from custody . on his . own recognizance" for purposes of the ...