Failure To Appear

by Bruce McEwen, November 29, 2017

Grant

Clevon Grant, nabbed by the long arm of the law, was in court last week, and I had to sit through his failure to appear hearing just to button-hole District Attorney David Eyster on a different case, something of consequence, the rising tensions over alleged embezzlement among the heavily armed members and officers at the Ukiah Gun Club, which story has already broke, it seems, without any gunplay, as yet; and although I promised the DA I wouldn’t breathe a word of it to a living soul – the newspaper reporter’s motto is always ripe as a plum in his mouth – the story (see Off The Record) broke of its own inertia; but in the meantime, I had to sit through this boring hearing.

DA Eyster: “Judge [the Hon. John Behnke], I’d like the court to take judicial notice of a bail bond posted prior to February 13th, 2015.”

Judge Behnke: “The one for $30,000?”

Eyster: “Uhmm, lemme see… Actually, yeah: $30,000.”

Behnke: “It shows a $3000 premium was paid, and the bond issued January 14, 2015; judicial notice taken.”

Eyster: “The defendant then failed to appear before the Honorable David Nelson, and the bond was forfeited.”

Behnke: “I see that, here in the minutes, and a new bond in the amount of $40,000 was issued May 7th, 2015. He was here on that day and the bond re-instated, on payment of a $150 fee. Attorney Andrew Martinez made a general appearance and the matter was continued to June 3rd. On that date counsel appeared with a 977 waiver and the defendant showed up late, so he was ordered to appear on June 17th and did not appear; so, with the defendant not present –“

Eyster: “But ordered present, Judge —”

Behnke: “The motion to continue was granted, and the defendant was ordered to be present on the 24th.”

Eyster: “He failed to appear, judge.”

Behnke: “The motion was continued, with the defendant ordered to be present, to June 30th.”

Eyster: “He was not present that day, either, Judge.”

Behnke; “And so a new warrant issued for his arrest, if he failed to surrender by August 6th.”

Eyster: “Again, he failed to appear,”

Behnke: “So the bond was forfeited and an amended warrant was issued for his arrest, and he was not back before the court until October 24th, 2017.”

Judge Behnke turned to the defense desk, where Daniel Moss of the Office of the Public Defender was presiding with his client, Mr. Clevon Grant.

Moss: “The defense has no evidence to present.”

Behnke: “Would you like to argue, Mr. Moss?”

Moss: “Thank you, your honor, yes. I appreciate the court’s latitude in this case and would ask the court to take notice of my client’s request to calendar his case, and I have a letter here from court clerk James Kester [who is also an editorial cartoonist of long standing for the Ukiah Daily Journal] stating that it was a court holiday on that day and –”

Eyster: “I’m not sure the rules under judicial notice allow for any –”

Behnke: “I don’t believe I can – let me see here, it says on March 19th James Kester sent the letter noting the wrong date, which doesn’t strike me as having any import, counsel. First, the defendant failed to appear on his bail bond, and the request to calendar that day was filled out by Mr. Kester on the 31st – so the defendant filled out another one – or someone did – on April 1st, with a hearing date set for the 14th, and he didn’t show up then, either. On May 7th, he was eventually there, which has no bearing on the holding order. There’s no defense evidence, Mr. Moss?”

Moss: “Your honor, with reference to the February 13th date, it is a typo[graphical error] of an appearance date that was originally the 16th and scratched out with a hand correction, and it can be read as the 17th.”

Eyster: “That’s a matter of opinion, judge.”

Moss: “We’re asking the court to consider it, your honor. If he was handed a copy of the bail bond and the date had been hand corrected he could easily misread that and it wouldn’t be a willful failure to appear. True, on the June 30th date, Mr. Grant was not personally present in court… on the June 17th date he did not personally appear … ”

Eyster: “What about on the 24th?”

Moss: “They haven’t proved he willfully failed to appear, your honor.”

Behnke: “Let’s back up a bit. On June 3rd, he appeared late. He was present and ordered to be present on June 23rd. There was an authorized 977 on file for the PPX [pre-prelim] but he wasn’t present for the prelim on the 30th when he’d been ordered to be there. He knew about the 24th, and he certainly knew about the 30th so for the purposes of a prelim on those two dates alone –“

Eyster: “I disagree, judge. I think we have a willful failure to appear on these other dates, as well. Take a look at the minutes. The defendant was notified under the waiver –“

Moss: “I disagree – not with what the statute says, but it’s not willful if he’s not personally notified.”

Eyster: “The statute takes that under consideration, and it goes years, literally, in this case, before defendant appears in court.”

Moss: “Finally, I’m not sure the court is hearing argument on the primary offense, but he was released, so it’s not proper to hold him on both.”

Behnke: “Hummph. Well, I am going to hold him on both, and we’ll need a date, Madam Clerk, for arraignment on the information.”

Clerk Bonnie Miller: “Arraignment will be on December 5th…”

Moss: “Any chance of setting it a week later?”

Behnke: “Sure.”

Miller: “December 12th, 9:AM, Department B.”

Behnke: “Mr. Grant, you’re ordered to be there.”

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