ORIHUELA

In 2001 defendant pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and driving with a blood-alcohol level above .08 (Veh. Code, § 23152, subd. (b)), and was granted diversion pursuant to Penal Code section 1000.

While still participating in diversion, defendant missed a scheduled court appearance, and was thereafter charged with felony failure to appear after having been released on his own recognizance, pursuant to Penal Code section 1320, subdivision (b) (all further statutory references are to the Penal Code). Following his unsuccessful motion to set aside the information (§ 995), defendant was convicted following a court trial of felony failure to appear.

On appeal, defendant contends his conviction must be reversed because, as a matter of law, a person granted diversion pursuant to section 1000 cannot be convicted of failing to appear under section 1320. The Attorney General concedes the error, and we agree: defendant’s conviction for felony failure to appear shall be reversed.

DISCUSSION

Section 1320 criminalizes the failure to appear following a release from custody on one’s own recognizance: it provides that…