People v. Orihuela 122 Cal. App. 4th 70

Joshua Kaizuka

Case Conclusion Date:August 19, 2004

Practice Area:Criminal Defense

Outcome:Trial Court Reversed

Description:Defendant had pleaded no contest to drug charges and driving with a blood alcohol level above .08. He was granted diversion pursuant to Cal. Penal Code § 1000. While still participating in diversion, defendant missed a scheduled court appearance. He was charged and convicted of felony failure to appear. On appeal, the court reversed. The court agreed that defendant's conviction had to be reversed, because one granted diversion could not be convicted of failing to appear. The State conceded the error. Notwithstanding that a box checked on a minute order form indicated that defendant was released on his own recognizance, he was not: he was diverted pursuant to § 1000. Although § 1000 prescribed a number of terms and conditions related to successful completion of drug treatment that could be imposed upon a defendant, potential prosecution for failure to appear under Cal. Penal Code § 1320 was not among them, and no additional conditions were authorized by the statute to insure subsequent court appearances.