Jimenez

David Duran Jimenez demurred to the information charging him with violation of Penal Code section 1320.5 on the ground that the statute does not apply to bail pending appeal. The demurrer was sustained and the case was dismissed; the People appeal. We reverse.

Jimenez was sentenced to 14 years in prison following his guilty plea to a charge of offering to sell cocaine. (Health & Saf. Code, § 11352.) He filed an appeal and was released on bail. His conviction was affirmed and remittitur issued on August 22, 1991. On August 23 the district attorney notified Jimenez by letter to his counsel that the return date was set for September 4. Jimenez failed to appear; a bench warrant was issued and bail was forfeited. The forfeiture was exonerated on January 17, 1992.

*1177 The People filed a complaint alleging that Jimenez violated Penal Code section 1320.5, 2 which reads in part: “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.” An information was filed following the preliminary hearing.

Jimenez demurred to the…

I dissent because I believe the judgment should be affirmed for a reason not discussed in the majority opinion; as a matter of law, *1182 defendant could not be convicted because his presence in court was not required. Defendant is charged with violating Penal Code section 1320.5 based on a letter the district attorney sent to defendant’s attorney advising both of them to appear on September 4, 1991, even though there was no court order or agreement to appear on that date, nor was defendant required to appear on that date by virtue of being present in court when that date was set.

Preliminarily, a determination must be made whether a court. can take judicial notice of its own records and files for the purpose of ruling on a demurrer to a criminal complaint.

While it has been said a court hearing a demurrer in a criminal action cannot consider material subject to judicial notice (see Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 616 [ 198 Cal.Rptr. 749 ]) 1 , even that court held there were exceptions, including a case where the parties concede the fact judicially noticed. A similar situation is presented here. The district attorney raised the issue of the letter’s…

[Opinion certified for partial publication. [1] ]

OPINION

WALLIN, J.

David Duran Jimenez demurred to the information charging him with violation of Penal Code section 1320.5 on the ground that the statute does not apply to bail pending appeal. The demurrer was sustained and the case was dismissed; the People appeal. We reverse.

Jimenez was sentenced to 14 years in prison following his guilty plea to a charge of offering to sell cocaine. (Health & Saf. Code, § 11352.) He filed an appeal and was released on bail. His conviction was affirmed and remittitur issued on August 22, 1991. On August 23 the district attorney notified Jimenez by letter to his counsel that the return date was set for September 4. Jimenez failed to appear; a bench warrant was issued and bail was forfeited. The forfeiture was exonerated on January 17, 1992.

The People filed a complaint alleging that Jimenez violated Penal Code section 1320.5, [2] which reads in part: "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." An information was filed…