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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. James Randall STRIPE, Defendant and Appellant.

No. C019548.

Decided: February 27, 1996

Alys Briggs, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Assistant Attorney General, Shirley A. Nelson and Stan Cross, Deputy Attorneys General, for Plaintiff and Respondent.

Convicted by court trial of willful failure to appear after release on bail (Pen.Code, § 1320.5;  further references are to this code), defendant appeals from a judgment of commitment to the California Rehabilitation Center, urging no substantial evidence supports the judgment.   We agree.

Section 1320 proscribes failure to appear after “own recognizance” (OR) release.  Section 1320.5 proscribes failure to appear after release on bail as follows:  “Every person who is charged with the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony.”

Defendant pleaded no contest to a felony and he was placed on probation.   A petition to revoke probation was filed, defendant posted bail, was released and thereafter failed to appear.   He claimed lack of willfulness;  the court disagreed.

On appeal defendant contends his conduct does not fit within the statutory proscription because when admitted to bail he was a convicted felon, not a person “charged with the commission of a felony,” as required by section 1320.5.

 As a matter of common parlance the term “charged with” refers to the period before conviction, which means either the adjudication of guilt (whether by plea or trial), or the moment of judgment (sentence).  (People v. Rhoads (1990) 221 Cal.App.3d 56, 60, 270 Cal.Rptr. 266.)   A defendant is “charged with” crimes contained in an accusatory pleading, which exists to provide defendant with notice of those “charges.”   Defendant was not “charged with” a felony, he was a convicted felon.

Defendant's interpretation not only makes sense, “[i]t is difficult to understand how any other decision could have been reached if the plain, unequivocal language of the statute is to be regarded.   It is the duty of the law making body in framing laws to express its intent in clear and plain language to the end that the people upon whom it is designed to operate may be able to understand the legislative will.   This being done courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.”  (In re Alpine (1928) 203 Cal. 731, 736–737, 265 P. 947.   See Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)

We presume the Legislature is aware of the common meaning of “charged with the commission of a felony,” but the People argue the term encompasses persons convicted of crimes, because they were “charged with” the crimes before they were convicted.   This position is untenable.

The People invoke the “golden rule” of interpretation:  “Where a statute is susceptible of two constructions, the one which leads to the more reasonable result will be followed.   And where the language of a statutory provision is susceptible of two constructions, one of which, in application, will render it reasonable, fair and harmonious with its manifest purpose, and another which would be productive of absurd consequences, the former construction will be adopted.”  (Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 232–233, 273 P.2d 5, citations omitted.   See Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 425, 261 Cal.Rptr. 384, 777 P.2d 157 [“golden rule”].)

 This rule applies when and only when each interpretation reasonably accounts for the language, so they stand in relative equipoise, and the ambiguity cannot otherwise be resolved.  (People v. Jones (1988) 46 Cal.3d 585, 599, 250 Cal.Rptr. 635, 758 P.2d 1165.   See People v. Squier (1993) 15 Cal.App.4th 235, 241, 18 Cal.Rptr.2d 536 [construction which favors criminal defendant usually prevails in such case].)

In this case the two interpretations do not stand in relative equipoise.   As stated above, common parlance supports the defendant.   The People's construction is not reasonable because it assumes a bizarre interpretation of the word “charge.”   Moreover, if, as the People suggest, the Legislature wanted to penalize all felons or persons charged with felonies who fail to appear after release on bail it would not have employed the term “charge,” it would simply have said it is a crime for any person to violate the terms of bail having been charged with or convicted of a felony.

A component of the golden rule is that “a literal construction which will lead to absurd results should not be given if it can be avoided.  [Citations.]”  (Dempsey v. Market Street Ry. Co. (1943) 23 Cal.2d 110, 113, 142 P.2d 929.   See Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.)   This “absurd result” principle is a guideline and does not authorize judicial rewriting of statutes;  nor is it the province of the judiciary to close loopholes left by the Legislature.  (People v. Catelli (1991) 227 Cal.App.3d 1434, 1456, 278 Cal.Rptr. 452 (con. and dis. opn. by Carr, J.).)   Although defendant's reading of the statute results in reversal of his conviction based on a legislative “loophole,” that neither renders his interpretation “unreasonable,” nor the People's “reasonable.”

We are aware another court has reached a contrary conclusion.  (People v. Jimenez (1993) 19 Cal.App.4th 1175, 24 Cal.Rptr.2d 137.)   While we may laud the earnest effort to fix what appears to be broken, in our view such task is “properly resolved on the other side of Tenth Street, in the halls of the Legislature.”  (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 711, 252 Cal.Rptr. 613.)   That body may choose to rewrite the statute to encompass all persons, such as defendant, who contemptuously flout bail;  indeed, we invite the Legislature so to do.   But it is not the office of this court to rewrite statutes.

Jimenez, supra, 19 Cal.App.4th 1175, 24 Cal.Rptr.2d 137, in part implies that we are bound by higher authority.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)   However, the California Supreme Court has never decided the issue in this case;  it has merely touched on the point, twice.   We are not bound by dicta.  (Squier, supra, 15 Cal.App.4th at p. 240, 18 Cal.Rptr.2d 536.)

In re Smiley (1967) 66 Cal.2d 606, 58 Cal.Rptr. 579, 427 P.2d 179, held habeas corpus was available to a person released OR after conviction.   The court concluded Smiley was “under sufficient constructive custody” to seek writ relief:  “It cannot be argued that release on recognizance lacks meaningful sanctions:  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 (Pen.Code, §§ 1319.4, 1319.6).”  (Italics added.)

“The statute” referred to is former Article 9 (Release on Recognizance), and the emphasized reference is to former section 1319.4, which provided a penalty to “Every person who is charged with the commission of a felony who is released on his own recognizance ․ who willfully fails to appear.”   (Stats.1959, ch. 1340, § 1, p. 3613.)

Under Auto Equity Sales, Inc., supra, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, we must accept that a person released OR remains in sufficient custody so as to be eligible to invoke habeas corpus.   The court did not purport to hold that Smiley himself was subject to conviction under the former statute, only that the former statute in general meaningfully restricted his liberty in certain ways, notwithstanding that he was on OR release.   Moreover, it was not a crime to fail to appear after release on bail at the time Smiley, supra, 66 Cal.2d 606, 58 Cal.Rptr. 579, 427 P.2d 179, was decided.  (See People v. Wesley (1988) 198 Cal.App.3d 519, 523–524, 243 Cal.Rptr. 785;  Stats.1983, ch. 403, § 1, pp. 1669–1670.)   The People cite no authority for the proposition that a construction of one statute by the Supreme Court is binding on us if a separate, albeit parallel, statute contains similar language.

In People v. Cruz (1988) 44 Cal.3d 1247, 246 Cal.Rptr. 1, 752 P.2d 439, Cruz pled guilty pursuant to a bargain, posted bail, then failed to appear at sentencing.  Cruz held the trial court could not use the failure to appear to impose a sentence in excess of the terms of the bargain.   The court (at page 1253, 246 Cal.Rptr. 1, 752 P.2d 439) assumed, without analysis, that a person who pled guilty, then failed to appear for sentencing, could be punished under the failure to appear statutes.   The court did not hold that this was so.

With no binding precedent to the contrary, there is no justification for this court to read words to mean what they do not say.   The defendant, when released on bail, was not a person “charged with the commission of a felony.”   He did not violate section 1320.5 by his failure to appear.

The judgment is reversed for lack of evidence.

MORRISON, Associate Justice.

BLEASE, Acting P.J., and DAVIS, J., concur.

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