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People v. Perez

California Court of Appeals, Third District, Yolo

July 31, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
JESSE DAVID PEREZ, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Yolo County, No. CRF 12-4740 Paul K. Richardson, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

William D. Farber, under appointment bye 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 and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DUARTE, J.

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

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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 ...


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