Opinion
D072460
01-31-2018
In re ALLAN DAVID RILEY on Habeas Corpus.
Doris M. LeRoy, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD255338) Petition for writ of habeas corpus following a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Relief granted. Doris M. LeRoy, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Respondent.
I
The court sentenced Allan David Riley to serve 25 years to life in state prison plus a consecutive determinate term of 19 years four months after a jury found him guilty of the following offenses: assault with a deadly weapon (a knife) on a peace officer (Pen. Code, § 245, subd. (c); count 1), carrying a concealed dirk or dagger (§ 21310; count 2), failure to appear while on his own recognizance (OR) (§ 1320, subd. (b); count 3), and giving false information to a peace officer (§ 148.9, subd. (a); count 4). Among the jury's findings, the jury found true allegations Riley committed the felony offenses alleged in counts 1 through 3 when he was released from custody on OR pending final judgment on earlier felony offenses (§ 12022.1, subd. (b)).
Further statutory references are to the Penal Code unless otherwise stated.
We grant Riley's request for judicial notice of the record on appeal in his direct appeal, People v. Riley (D071449). Riley's direct appeal challenges only his convictions for counts 1 and 4. In a separate opinion filed simultaneously with this petition for habeas corpus, we reverse the conviction for count 4 and affirm the conviction for count 1. With the exception of the relief granted herein, we otherwise affirm the judgment. --------
II
Riley contends in his petition for writ of habeas corpus that his conviction for failure to appear while on OR (count 3), and the true findings on the related special allegations in counts 1 through 3 must be set aside because he was deprived of effective assistance of counsel. (Cal. Const., art. I, § 15; U.S. Const., 6th Amend.) He contends his counsel was ineffective when he entered into a stipulation, which was read to the jury, stating Riley failed to appear at a court appearance while he was released on OR on two prior cases (El Cajon Super. Ct. Case Nos. SCE337422 and SCE332185) when, in fact, the statutory requirements for an OR release were not met.
Riley presented prima facie evidence that he had not signed a written agreement as required by section 1318 for release on OR in the two prior cases. As a result, he could not be prosecuted for failure to appear while released on OR in the current case. (People v. Hernandez (2009) 177 Cal.App.4th 1182, 1188 ["If a defendant is released without a signed release agreement that complies with section 1318, the defendant cannot be separately punished under section 1320 for his subsequent failure to appear."]; People v. Mohammed (2008) 162 Cal.App.4th 920, 933 [where there is no evidence of a written agreement conforming to § 1318, there is insufficient evidence to convict a defendant of willful failure to appear while out on OR]; People v. Jenkins (1983) 146 Cal.App.3d 22, 27 ["a release without bail which does not comply with the specific requirements of section 1318 is not a release 'under an own recognizance' "].) He presented additional evidence that his attorney in the current case did not state he was aware of the lack of a written agreement for the prior cases or that there was a tactical reason for stipulating that Riley was released on OR where the requirements of section 1318 were not met.
In his January 22, 2018 informal response, the Attorney General did not challenge Riley's factual showing and, finding no authorities contrary to those cited by Riley, acknowledged a signed written agreement under section 1318 is required to prosecute a defendant under section 1320 or section 12022.1, subdivision (b) for failure to appear while released OR. The Attorney General conceded Riley's counsel was ineffective in entering into the stipulation and that, absent the stipulation, Riley would not have been convicted of failure to appear while released on OR without a signed written contract with the terms of recognizance. As a result, the Attorney General conceded the petition should be granted because Riley demonstrated prejudice from ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Williams (1988) 44 Cal.3d 883, 937; People v. Ledesma (1987) 43 Cal.3d 171, 217.)
III
In light of the Attorney General's concession in the informal response, the conviction on count 3 and the true findings as to allegations in counts 1 through 3 that Riley committed felony offenses when he was released from custody on OR are vacated. (See People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7 [the right to file a return in a habeas corpus proceeding may be waived by stipulation to the truth of the petition's allegations and to the requested relief].) The matter is remanded for resentencing.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.