Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD210186, Cynthia A Bashant, Judge.
AARON, J.
I
INTRODUCTION
Defendant Fairlond Hayes appeals from a judgment of conviction after a jury trial. Hayes was convicted of robbery, evading a police officer by driving with a willful or wanton disregard for safety, and willfully failing to appear before the court as required, in order to evade the process of the court.
Hayes contends that the evidence is insufficient to support his conviction for willful failure to appear, as well as for a related true finding on an enhancement for committing the willful failure to appear while being out on bail. After Hayes was arrested for the robbery and for recklessly driving to evade a police officer, Hayes appeared in court and was apparently given two different dates to appear for his trial readiness conference. The reporter's transcript from Hayes's arraignment demonstrates that the trial court ordered Hayes to appear for a trial readiness conference on September 27, 2007, and for trial on September 28, 2007. However, the minute order from the arraignment indicates that Hayes was ordered to appear for the trial readiness conference on September 20, 2007, and for trial on September 28, 2007. The minute order also includes a notation by the court clerk indicating that the clerk provided a copy of that document to the defendant. Hayes maintains that because this conflict in the evidence exists, there is insufficient evidence to support the jury's verdict that he willfully failed to appear as required by the court.
We agree and reverse Hayes's conviction on the charge of willful failure to appear. Our reversal of Hayes's conviction on this count necessarily voids the jury's true finding on the enhancement allegation (i.e., that Hayes committed the failure to appear offense while out on bail.) We therefore remand the matter to the trial court for resentencing.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
At approximately midnight on June 5, 2007, Hayes approached Maria Porras after she had parked her car and started to walk toward her home. Hayes grabbed Porras's purse and punched her in the face. He then drove away from the scene in a dark-colored sports utility vehicle. Porras called 911 and gave a description of Hayes and a partial license plate number of Hayes's vehicle.
San Diego Police Officer Paul Keffer noticed a vehicle that matched the description of the vehicle that Porras had described approximately five minutes after he received a call from dispatch about the robbery. Officer Keffer called for backup and then attempted to stop the vehicle. The driver, later identified as Hayes, did not stop, and Keffer began a high speed pursuit of the vehicle.
Hayes eventually stopped and got out of the vehicle, but failed to comply with Officer Keffer's order that he show his hands. Instead, Hayes appeared to move toward the vehicle. A police canine was eventually used to help restrain Hayes, and officers placed him under arrest.
Officer Keffer searched Hayes's vehicle and found a Sav-On identification card or identification tag on the ground outside of the open driver's side door, and a similar card inside the vehicle. The cards had Porras's name on them. Officers later found Porras's purse and other belongings on the side of the road along the route of the police pursuit of Hayes.
At the scene, Porras identified Hayes as the man who had stolen her purse, despite Hayes's attempt to hide his face. She also identified Hayes at trial.
On June 13, 2007, Hayes was charged with robbery (Pen. Code, § 211) and evading a police officer by reckless driving (Veh. Code, § 2800.2, subd. (a)). The court held a preliminary hearing on August 9, 2007, at which Hayes was arraigned. At that hearing, the court set Hayes's trial for September 28, 2007. According to the reporter's transcript of the proceedings that day, the trial court ordered Hayes to appear on September 27, 2007, for his trial readiness conference. However, the minute order entered that day indicates that Hayes's trial readiness conference was scheduled for September 20, 2007.
Further statutory references are to the Penal Code unless otherwise indicated.
B. Procedural background
By amended information filed May 8, 2008, the San Diego County District Attorney charged Hayes with the original two counts, i.e., robbery (§ 211; count 1) and evading a police officer by reckless driving (Veh. Code, § 2800.2, subd. (a); count 2), and also charged Hayes with willful failure to appear while on bail (§ 1320.5; count 3), a charge that included an enhancement allegation that Hayes committed the offense of willful failure to appear while on bail, while he was released from custody on bail (§ 12022.1, subd. (b)). The amended information also alleged that Hayes had suffered two serious prior felony convictions (§§ 667, subd. (a)(1), 668, and1192.7, subd. (c) and two prior strike convictions (§§ 667, subds. (b)-(i) and 1170.12, subd. (c), and that he had served two prior prison terms (§ 667.5, subd. (b)).
In People v. Walker (2002) 29 Cal.4th 577, the Supreme Court determined that "the enhanced punishment of section 12022.1" applies even when the "only secondary offense is a violation of section 1320.5." (Walker, supra, at pp. 587-588.) In other words, a defendant who is convicted and sentenced for failing to appear while released on bail (§ 1320.5) may also suffer the enhanced punishment of section 12022.1 for committing the failure-to-appear offense while out on bail.
On May 12, 2008, a jury found Hayes guilty on all counts, and made a true finding as to the enhancement allegation. After the jury returned its verdict, Hayes admitted the truth of the prior conviction and prison term allegations.
On September 9, 2008, the trial court sentenced Hayes to an indeterminate term of 50 years to life (consecutive 25-years-to-life terms for counts 1 and 3), plus a consecutive determinate term of 12 years (two consecutive five-year terms for the two prior serious felony convictions and a two-year term for the on-bail enhancement). The court also imposed a concurrent term of 25 years to life for count 2, and imposed and stayed the two one-year prison prior enhancements, pursuant to section 654.
Hayes filed a timely notice of appeal from the judgment on September 17, 2008.
III
DISCUSSION
Hayes contends that the evidence is insufficient to support both his conviction for willful failure to appear (count 3), and the true finding on the on-bail enhancement related to that count.
"To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant to be guilty on the theory presented. [Citation.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 528–529.) "Evidence, to be 'substantial' must be 'of ponderable legal significance... reasonable in nature, credible, and of solid value.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "Substantial evidence includes circumstantial evidence and any reasonable inferences flowing therefrom." (People v. Cole (1994) 23 Cal.App.4th 1672, 1678.)
"[R]easonableness [is] the ultimate standard under the substantial evidence rule. 'The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.' " (People v. Kunkin (1973) 9 Cal.3d 245, 250.) "The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact. '[In] determining whether the record is sufficient... the appellate court can give credit only to 'substantial evidence, i.e., evidence that reasonably inspires confidence and is "of solid value." ' [Citation.]" (Ibid.)
Hayes was charged with willful failure to appear pursuant to section 1320.5, which provides in relevant part:
"Every person who is charged with or convicted of 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.... Willful failure to appear within 14 days of the date assigned for appearance may be found to have been for the purpose of evading the process of the court."
The prosecution charged Hayes with failing to appear on September 20, 2007, only: "On or about September 20, 2007, FAIRLOND LEE HAYES, a person who was charged with the commission of a felony who was released from custody on bail and, in order to evade the process of the court, willfully and unlawfully failed to appear as required, in violation of [section] 1320.5."
At trial, the parties entered the following stipulation which was read to the jury:
"In a court hearing on August 9[], 2007, [Hayes] was ordered to appear on the following dates: September 20[], 2007, at 8:30 a.m. in Department 31 for [a] readiness conference; September 28[], 2007, at 9:00 a.m. in Department 11 for trial.
"He was out of custody on bail awaiting trial on felony offenses at the time. It is the custom and habit for the court to give the defendant paperwork that list[s] the dates that the defendant had been ordered to appear. The transcripts of the August 9[], 2007 hearing where [Hayes] was ordered to appear, state[] that he was ordered to appear on the following dates: September 27, 2007 at 8:30 in Department 31 for readiness conference and September 28[], 2007 at 8:30 in Department 11 for trial.
"[Hayes] did not appear at [sic] the September 20[], 2007 date and a warrant was issued for his arrest. All future dates were vacated. [Hayes] was arrested in Texas on this warrant and extradited back to San Diego County in February 2008."
With respect to the failure to appear offense, the trial court instructed the jury as follows:
"Every person who is charged with the commission of a felony, who is released from custody on bail, and who with the specific intent to evade the process of the court willfully fails to appear as required, is guilty of a felony.
"In order to prove the crime, the People must prove each of the following elements:
"1. The defendant was charged with the commission of a felony;
"2. While charged with that felony, the defendant was released from custody on bail;
"3. While out on bail, the defendant willfully failed to appear in court as ordered; and
"4. When the defendant failed to appear in court, he did so with the specific intent to evade the process of the court.
"If you find the defendant willfully failed to appear within 14 days of the date he was ordered to appear in court, you may, but are not required, to infer from that failure to appear for 14 days, that the defendant intended to evade the process of the court."
Based on these instructions, the jury had to find beyond a reasonable doubt that Hayes was required to appear in court on September 20, 2007, and that his failure to appear on that date was not only willful, but was done with the intention of evading the process of the court.
The evidence as to the date on which Hayes was required to appear in court was in conflict. Although the parties stipulated that it is the custom and habit of the trial court to give a defendant paperwork that contains future court dates and that Hayes was "ordered to appear" on September 20, 2007 for a readiness conference and on September 28, 2007 for trial, the parties also stipulated that the reporter's transcript establishes that the court ordered Hayes to appear on September 27, 2007 for the readiness conference and on September 28, 2007 for trial. The stipulation demonstrates that the trial court orally gave Hayes a date for the readiness conference that is different from the date stated in the minute order.
The only evidence in the record that could support the stipulation that Hayes "was ordered to appear" on September 20, 2007, for a readiness conference would have to be either the court's minute order or the reporter's transcript of the proceedings. Since the reporter's transcript of the proceedings provides that the court ordered Hayes to appear on September 27, 2007, only the minute order could have provided the evidentiary basis for the statement in the stipulation that Hayes "was ordered to appear" on September 20, 2007.
Hayes was charged with willfully failing to appear "as required" on September 20. The date of the alleged failure to appear is a material term of the charge; the prosecutor must prove beyond a reasonable doubt that the defendant was in fact required to appear in court on a date certain, and that he willfully failed to do so. (§ 1320.5; cf. § 978.5, subds. (a)(1)-(a)(5) [in the context of the issuance of bench warrants for arrest, a defendant's "fail[ure] to appear in court as required by law" refers to a number of situations in which a court has ordered the defendant "to personally appear in court at a specific time and place"].) Because the record establishes that Hayes was given two different dates to appear for the readiness conference—September 20 and September 27—it is impossible to determine one way or another a date certain on which Hayes was "required" to appear for that conference. We conclude that the evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that Hayes was required to appear on September 20, since, given the state of the evidence, no reasonable juror could have found beyond a reasonable doubt that the court required Hayes to be in court on September 20 as opposed to September 27. We therefore reverse Hayes's conviction on count 3.
Although section 1320.5 includes a provision that states that an individual's willful absence from court for 14 days after the date on which he or she was to appear may be found to indicate that the person's willful failure to appear was done for the particular purpose of " 'evading the process of the court,' " this provision goes to the mental state of the defendant. (See People v. Wesley (1988) 198 Cal.App.3d 519, 522-523.) Here, however, we conclude that there is insufficient evidence to establish that Hayes was required to appear on September 20, 2007. In view of this determination, we need not consider evidence that bears on whether Hayes willfully failed to appear and/or had the specific intention of evading the process of the court.
Because we reverse Hayes's conviction for willful failure to appear as charged in count 3, the true finding on the enhancement attached to that count must also be reversed. We therefore need not address Hayes's contention that there is insufficient evidence to support the jury's true finding on the on-bail enhancement allegation.
IV
DISPOSITION
The conviction on count 3 and the true finding on the on-bail enhancement associated with that count are reversed. Count 3 is ordered dismissed. The sentence is vacated and the matter is remanded to the trial court for resentencing.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.