Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF127265A, Michael B. Lewis, Judge.
Kristin Cobery, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J. and Poochigian, J.
Pursuant to a plea agreement, appellant, Janna Carol Gilbert, pled no contest to unlawful possession of a controlled substance for purposes of sale (Health & Saf. Code, § 11351) and admitted allegations that she had suffered a “strike” and that she had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The court imposed a prison term of seven years, consisting of the three-year midterm on the substantive offense, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), and one year on the prior prison term enhancement.
We use the term “prior strike conviction” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant argues as follows: The court imposed a sentence greater than that agreed upon in the plea agreement; appellant did not execute a valid “Cruz waiver”; and therefore the matter should be remanded to the trial court to allow appellant to withdraw her plea. We will affirm.
See People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
PROCEDURAL BACKGROUND
A single-count criminal complaint was filed March 26, 2009, charging appellant with the instant offense and alleging four prior prison term enhancements and one prior strike conviction.
All references to dates of events are to dates in 2009.
On June 5, appellant executed a document entitled “ADVISEMENT OF RIGHTS, WAIVER, AND PLEA FORM FOR FELONIES” (plea form) in which she stated she would plead guilty or no contest to the charged offense and admit one prior prison term enhancement allegation. In the section of the plea form designated for setting forth the “agreement with the District Attorney or Court indicated sentence, ” she further stated: “I have not been induced to enter this plea by any promise or representation of any kind, except:... [¶] [I will] plead to Ct. 111351-- midterm [and] admit prison prior. Court indicated Romero for 3 years at 1/2 time sentence on 8/4/09.” (Italics added.)
Later on June 5, appellant appeared in court with her counsel. At the outset of the proceeding, the following colloquy occurred:
“MS. GUNTHER [defense counsel]: Ms. Gilbert will be admitting to count one and one prison prior, count one as a midterm, with the understanding that the Court would grant a Romero and that her sentence would be three years. And we are going to put sentencing over until August 4th. She understands that she’ll be entering a Cruz waiver for that day.
“THE COURT: Miss Gilbert, did you understand the terms of the proposed disposition as outlined by your attorney just now?
“[Appellant]: Yes, your Honor.
“THE COURT: Is that what you want to do today?
“[Appellant]: Yes, your Honor.” (Italics added.)
Shortly thereafter, appellant entered her no contest plea and admissions, and the court set appellant’s sentencing for August 4. Appellant did not appear on that date, and a bench warrant was issued.
Appellant appeared for sentencing on September 1. At the outset of the hearing, defense counsel acknowledged that appellant “did not come for sentencing on August 4th, ” and although “the Court had indicated three years, ” that indicated sentence “was with a Cruz waiver....” (Italics added.) Defense counsel then asked the court to strike appellant’s prior strike conviction, notwithstanding her failure to appear for sentencing as ordered. The court declined this request and imposed sentence as set forth above.
DISCUSSION
Appellant argues that the court, in violation of Penal Code section 1192.5 (section 1192.5), imposed a sentence greater than that agreed upon in the plea agreement, and that she did not waive the protections of that statute. Therefore, she argues, she should be allowed to withdraw her plea. We disagree.
Under section 1192.5, “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.” (§ 1192.5.) The statute further provides that if the court subsequently withdraws its approval of the plea agreement, “the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.” (Ibid.)
In Cruz, supra, 44 Cal.3d 1247, our Supreme Court held that a defendant who fails to appear for sentencing does not lose the protections of section 1192.5. Though committing “a separate offense of failure to appear... ([s]ee [Pen. Code, ] §§ 1320 and 1320.5), ” for which punishment may be imposed, the defendant must still be permitted to withdraw his or her plea if the court insists on imposing additional punishment in excess of that provided by the plea agreement. (Id. at p. 1253.)
However, the Supreme Court added the following caveat, which recognized the ability of a defendant to waive the protections afforded by section 1192.5: “We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term. Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.” (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
Section 1192.5 is implicated, and the foregoing waiver rule applies, “when, during the plea proceedings but after the parties have negotiated the basic plea bargain, the court imposes an additional condition providing a sanction for nonappearance....” (People v. Casillas (1997) 60 Cal.App.4th 445, 451-452 (Casillas).) In that situation, the defendant must be allowed to withdraw his or her plea. However, “when the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.” (Id. at p. 452, italics added.) “The ultimate question will be not whether the bargain occurred in a hermetically sealed environment from which the judge was excluded, but whether the return provision resulted from the give-and-take of plea bargaining or was a judicially imposed afterthought.” (Id. at p. 452, fn. omitted.)
The case of People v. Masloski (2001) 25 Cal.4th 1212 (Masloski) involved the second of the situations described above. In that case, the trial court explained the terms of the defendant’s plea agreement, “which included what the court referred to as a ‘Cruz waiver.’” (Id. at p. 1222.) The trial court later explained that a “Cruz waiver” meant defendant could receive an increased sentence of up to six years in prison if she failed to appear for sentencing. Defense counsel, the defendant, and the prosecutor then confirmed that this was their understanding of the terms of the plea agreement. Our Supreme Court, in affirming the six-year sentence, acknowledged the trial court’s error in failing to advise the defendant pursuant to section 1192.5, but concluded: “[T]his error was of no consequence, because the superior court did not disapprove the plea agreement. Rather, when defendant failed to appear on the date set for sentencing, she was sentenced to a term of four years in prison, in accordance with the terms of the plea agreement. The provisions of section 1192.5 that permit a defendant to withdraw his or her plea if the court withdraws its approval of the plea agreement were not implicated, because the court adhered to the terms of the plea agreement by sentencing defendant to a prison term that did not exceed (and in fact was less than) the maximum sentence authorized by the plea agreement in the event that defendant failed to appear on the date set for sentencing.” (Masloski, at pp. 1223-1224.)
The agreed upon sentence, if the defendant appeared for sentencing, was two years eight months.
In the instant case, as in Masloski, the term “Cruz waiver” signified that the plea agreement included a term that appellant’s sentence could be increased if she failed to appear at sentencing. Specifically, that term, as indicated by counsel’s reference to the court “grant[ing] a Romero [motion], ” (italics added) was as follows: If appellant appeared at the scheduled sentencing, the court would strike appellant’s prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and the court would impose a three-year midterm sentence on the substantive offense. However, if appellant did not appear at sentencing, the court could (1) refuse to strike the prior strike conviction, and (2) impose a six-year term on the on the substantive offense, consisting of the three-year midterm, doubled pursuant to the three strikes law.
We recognize that, as appellant points out, the instant case differs from Masloski in that here neither counsel nor the trial court explicitly stated on the record that the term “Cruz waiver” meant that appellant would be subject to an increased term if she did not appear at sentencing. Rather, defense counsel, in reciting the terms of the plea agreement, used the term “Cruz waiver, ” (italics added) without further explanation. However, that term can refer not only to a defendant’s waiver of section 1192.5 protections, but a term of the plea agreement providing for an increased sentence upon nonappearance; as indicated above, in Masloski the trial court referred to such a plea agreement term as a Cruz waiver. (Masloski, supra, 25 Cal.4th at p. 1222.)
We find further support for our interpretation of the term “Cruz waiver, ” as used here by defense counsel, from the following principles: “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767, italics added.)
In the instant case, at the outset of the September 1 sentencing hearing, some three months after the entry of the plea, defense counsel acknowledged appellant’s “Cruz waiver” (italics added) and failure to appear for sentencing, but asked the court to “seriously consider the three-year sentence.” Counsel did not argue that the plea agreement and/or the court’s failure to advise appellant pursuant to section 1192.5 precluded imposition of the increased sentence. Moreover, appellant reacted to the imposition of sentence with a one-word expletive, but did not indicate she thought the sentence violated the plea agreement. The conduct of both appellant and counsel indicated that both understood the imposition of the increased sentence was consistent with the plea agreement. (Cf. In re Steven O. (1991) 229 Cal.App.3d 46, 57 [where juvenile court on disposition aggregated terms for multiple offenses but petitioner erroneously failed to provide notice of possible aggregation in wardship petition, error harmless because probation officer’s report recommended aggregation and neither minor nor his counsel registered any objection to or surprise with this recommendation, implying they “knew and understood the court’s power and intention to aggregate time.”].)
Finally, we note that defense counsel’s reference to appellant’s Cruz waiver in reciting the plea agreement occurred at the outset of the plea proceeding, before appellant entered her plea, indicating that the sentence-increasing term “resulted from the give-and-take of plea bargaining, ” and was not a “judicially imposed afterthought.” (Casillas, supra, 60 Cal.App.4th at p. 452, fn. omitted.) On this record, we conclude the imposition of the seven-year prison term violated neither the plea agreement nor appellant’s rights under section 1192.5.
DISPOSITION
The judgment is affirmed.