Skip to content
Name: People v. Mohammed
Case #: H030980
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/02/2008

A requisite element of Penal Code section 1320 (failure to appear) is proof that defendant was released on his own recognizance pursuant to Penal Code section 1318, which requires a written promise to appear containing specific advisements, that is signed by defendant. At jury trial for violation of section 1320, the prosecution failed to prove that appellant was released on OR pursuant to Penal Code section 1318 and the defense brought a motion for acquital, arguing that this was a necessary element. Penal Code section 1318 states that a defendant shall not be released on OR until a signed agreement, containing specific criteria, is filed with the court. The trial court determined that a defendant could violate section 1320 if there is substantial compliance with 1318 and denied appellant’s motion. The appellate court disagreed, finding that section 1318 has specific requirements for an OR release and absent these requirements, there is no OR release, even if defendant is actually out of custody. Here, because there was no evidence of the written promise to appear, appellant was not on OR release, and thus, there was insufficient evidence to convict her of failure to appear. The court added that double jeopardy principles prevented retrial.