Opinion
G035381
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. JOHN WILLIAM LAMBROSE, Defendant and Appellant.
John William Lambrose, in pro. per.; and Cynthia M. Sorman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
John William Lambrose pleaded guilty to one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), one count of possession of drug paraphernalia (Bus. & Prof. Code, § 4140), one count of receiving stolen property (Pen. Code, § 496, subd. (a)), one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and one count of driving a vehicle without a valid drivers license (Veh. Code, § 12500, subd. (a)). The plea agreement called for a three-year prison term if Lambrose appeared at the designated time for sentencing and allowed the trial court to impose a greater term as a sanction if he failed to do so.
Lambrose did not appear on the date set for sentencing until after the courtroom had closed. He tried to turn himself in late. When unsuccessful, he consulted his attorney, and tried to turn himself in a few days later. The trial court nonetheless imposed the nonappearance sanction by sentencing Lambrose to the greater term of seven years four months.
We conclude the trial court abused its discretion by sentencing Lambrose to the greater term. Accordingly, we reverse the judgment and remand for resentencing and for correcting the amount of the restitution fine.
Facts and Procedural History
An information filed on August 6, 2004 in Orange County Superior Court case No. 04WF2018 charged Lambrose with one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), one count of unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140), and one count of receiving stolen property (Pen. Code, § 496, subd. (a)). The information alleged one enhancement for a prison term arising from a 1997 felony conviction.
An information filed on October 22, 2004 in Orange County Superior Court case No. 04CF2870 charged Lambrose with one count of unlawful possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and one count of driving without a valid license (Veh. Code, § 12500, subd. (a)). The information alleged one prior prison term enhancement and alleged Lambrose committed the offenses while released from custody on bail.
On January 31, 2005, Lambrose entered into a plea agreement by which he pleaded guilty to all counts and admitted the enhancements in both informations. The agreement was expressed in two Tahl forms, one for each case. According to the Tahl forms, the agreed-upon punishment in both cases would be identical: Lambrose would receive a three-year concurrent prison sentence for case Nos. 04WF2018 and 04CF2870 if he appeared on February 4, 2005 for sentencing. If Lambrose failed to appear, then he would receive a sentence of four years eight months total for both cases. Each Tahl form recited that Lambrose would receive a three-year term in the other case, "concurrent to this case."
In re Tahl (1969) 1 Cal.3d 122.
Each Tahl form had the words "Cruz waiver" written on it. The term "Cruz waiver" refers to a waiver of the rule announced in People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). Under Cruz, if a defendant who has pleaded guilty under a plea bargain fails to appear at sentencing, the court may not reject the plea bargain and impose a higher sentence without first giving the defendant the opportunity to withdraw his or her plea, unless the defendant has previously made a knowing and intelligent waiver. (Id. at pp. 1249, 1253.)
Lambrose orally entered his guilty plea at a hearing on January 31, 2005. During the hearing, Lambrose asked the trial court to postpone his sentencing, set for February 4, 2005, so he could tend to some personal matters before going to prison. The court agreed to postpone sentencing until February 10. (At sentencing on February 16, the trial court mistakenly stated that Lambrose failed to appear on February 4. The correct date was February 10.) The court warned Lambrose it would impose a prison term of seven years four months if he failed to appear. When the prosecutor pointed out that seven years four months was a greater maximum sentence than that agreed upon and reflected in the Tahl forms, the following exchange occurred:
"[The prosecutor]: Your honor, theres—I have a real quick correction. On the Cruz waiver on both forms, I indicated [Lambrose] would be sentenced to four years eight months if he did not turn himself in on [February] 4.
"The Court: I cant
"[The prosecutor]: That needs to be corrected to reflect the seven years that the court
"The Court: What the deal is, you didnt—you made him—on consecutive sentences, it wouldnt be the full term on the second case. It would only be eight months, 1/3 the midterm. Okay? Do you see what Im saying? One case hes going to get six years on. The next case, since its consecutive sentencing, can only be 1/3 the midterm all the way down the line. [¶] Youve got it on the Tahl form as a full and complete consecutive sentence, which cannot be done. Thats how I come to a different figure than you do on the forms.
"[The prosecutor]: Okay.
"The Court: Anyway, its between [Lambrose] and [me] with respect to this."
The court did not explicitly refer to extending a Cruz waiver to the maximum prison term of seven years four months. Lambrose, however, agreed to the higher sentence set by the court. He was released pending formal sentencing.
On Wednesday, February 9, 2005, Lambrose traveled to Riverside County to sell most of his belongings at a swap meet. Lambrose decided to spend Wednesday night in Riverside County because he was too tired to drive back to Orange County. However, on Thursday morning, his rented truck would not start. He called for help to start the vehicle and, after eventually returning the truck to the rental facility, proceeded back to Orange County.
Lambrose failed to appear at his 8:30 a.m. sentencing on Thursday, February 10, 2005. His attorney told him to be in court at 1:30 p.m. that afternoon. When Lambrose failed to appear at that time, the court issued a bench warrant for his arrest and set bail at $1 million. A few minutes before 5:00 p.m. in the afternoon of February 10, Lambrose approached the clerk in the court parking lot and asked whether he was too late to surrender himself. By that time, the court was closed and the jail buses had already taken away the prisoners. Lambrose asked a court detective, "can you arrest me right now?" The detective replied, "no. Come back Monday." Friday, February 11 was a court holiday.
Lambrose decided to ask his attorney what he should do. Lambroses attorney told him, "just get your butt in there. Just get your ass in there and . . . get placed in custody."
On Monday, February 14, Lambrose again tried to surrender himself at the courthouse, but arrived just minutes before 5:00 p.m. He waited at the courthouse on Monday evening until he was found and placed in custody.
On February 16, Lambrose appeared in court for sentencing. The court seemed to believe his explanation for failing to appear. The court acknowledged receiving a phone call from Lambroses attorney notifying the court he had told Lambrose to show up at 1:30 p.m. on February 10. However, because Lambrose failed to appear at that time, the court sentenced him to the higher term of seven years four months in prison. Specifically, the trial court sentenced Lambrose to a three-year term for possession of a controlled substance, an eight-month consecutive term for unlawful possession of a controlled substance, another eight consecutive months for receiving stolen property, a two-year consecutive term on the bail enhancement, and a one-year consecutive term on the prior prison term enhancement.
DISCUSSION
I. Did the Sentence Imposed Violate the Plea Agreement?
Lambrose argues his sentence violated the terms of the written plea agreement in the Tahl forms. They stated Lambroses sentence would be three years if he turned himself in on February 4, 2005 (later extended to February 10), but could be four years eight months if he failed to appear for sentencing. Both Tahl forms stated that Lambroses sentence under the other case would be three years "concurrent to this case." The forms did not state whether that three-year concurrent sentence was conditioned upon Lambroses timely appearance for sentencing.
The Attorney General argues defense counsel prepared the Tahl forms, which did not accurately reflect the plea agreement. The Tahl forms do not indicate who prepared them. When the plea agreement was presented to the trial court, the prosecutor suggested he prepared the forms. The prosecutor stated, "[y]our honor, . . . I have a real quick correction. On the Cruz waiver on both forms, I indicated he would be sentenced to four years eight months if he did not turn himself in on [February] 4." (Italics added.)
Who prepared the Tahl forms does not matter because the trial court did not approve the plea agreement expressed in them. A plea agreement is not binding until the court approves it. In People v. Casillas (1997) 60 Cal.App.4th 445, 452, the court explained: "In the universe of plea-bargained cases, judicial involvement may occur anywhere along a continuum, from the outset or only after the parties have reached a tentative agreement. At some point, the judge must approve the deal." (Italics added.)
The trial court in this case disapproved the Tahl forms, stating they included a sentence "which cannot be done." The court stated it came "to a different figure than you do on the forms." The trial court asked Lambrose: "Do you understand that if you fail to appear on the sentencing date, that I intend—because the fact that you failed to appear has caused aggravating factors to play into the case, that is your failure to appear, would cause me to sentence you to [a] maximum of seven years and four months?" Lambrose replied, "[y]es, I do." Defense counsel joined in the plea. The trial court warned Lambrose, "I want you to be here with no excuses [be]cause the next day you show up youre going to prison and its either for three years or its for seven years four months if you dont show up."
The trial court, in effect, rejected the original plea agreement reflected in the Tahl forms by changing the nonappearance sanction. (See People v. Jensen (1992) 4 Cal.App.4th 978, 981.) However, Lambrose does not argue on appeal the trial court should have permitted him to withdraw his plea at this stage. (Ibid.)
Thus, the Tahl forms did not reflect the plea agreement approved by the trial court. In the agreement that the court approved, Lambrose could be sentenced to a term of seven years four months if he failed to appear at the designated time for sentencing. A Cruz waiver appears only in the Tahl forms. A Cruz waiver was not placed on the record on February 16. However, this case does not present a Cruz waiver issue. A Cruz waiver, in effect, permits the trial court to rescind a plea agreement and sentence the defendant to a higher term than that in the agreement when the defendant fails to appear for sentencing. (Cruz, supra, 44 Cal.3d 1247, 1249.) Here, the trial court did not rescind the plea agreement approved on January 31, 2005, but enforced that agreement by sentencing Lambrose to the higher term stipulated in it.
II. Did the Trial Court Abuse Its Discretion by Imposing the Higher Sentence?
We agree with Lambrose that the trial court had discretion to impose the lower sentence and abused that discretion by imposing the greater one. When a defendant fails to appear for sentencing, the trial court is "free to impose" an agreed-upon sanction. (People v. Vargas (1990) 223 Cal.App.3d 1107, 1113.) Imposition of the agreed-upon sanction for nonappearance is not automatic: The trial court retains discretion to impose the appropriate term. The People v. Vargas court noted of an agreement similar to the one in this case: "The articulated bargain does not explicitly provide that the greater term may not be imposed if defendants failure to appear for sentencing was with good cause. We believe that condition is implicit, and it clearly was satisfied in this case, since the facts showed that defendant had simply absconded." (Id. at p. 1113, fn. 3; see also Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
The plea agreement accepted by the trial court in this case thus implicitly conditioned imposition of the higher sentence on finding Lambroses failure to appear for sentencing was willful and without good cause. When applied to intent, "willfully" means "with a purpose or willingness to commit the act or to make the omission in question." (CALJIC No. 1.20.) "The word `willfully does not require any intent to violate the law, or to injure another, or to acquire any advantage." (Ibid.)
The trial court did not expressly find that Lambrose acted willfully and without good cause in failing to timely appear for sentencing. Rather, the trial court seemed to believe Lambroses story but felt compelled to impose the higher sentence. Taken as true, Lambroses explanation would not support a finding his failure to appear for sentencing was willful and without good cause. Lambrose did not abscond to avoid prison. He tried to turn himself in late on the day he was to appear for sentencing. He asked a court detective to arrest him. The detective told him to return on Monday. Lambrose consulted his attorney and followed the attorneys advice by trying to surrender himself on the following Monday. He waited at the courthouse on Monday evening until he was found and placed in custody. Lambrose exercised poor judgment, but his conduct did not justify the sanction of an additional four years four months in prison.
In People v. Carr (2006) 143 Cal.App.4th 786, the defendant similarly argued the trial court did not exercise or acknowledge its discretion to impose the lower sentence. In that case, the defendant pleaded guilty pursuant to a written plea agreement accepted by the trial court. The trial court sentenced the defendant to the agreed-upon nine-year prison term, which would be reduced to 365 days in jail if he appeared for sentencing and did not commit any crimes in the meantime. (Id. at p. 793.) The trial court found that defendant violated the plea agreement by committing a crime and sentenced him to the nine-year term. (Id. at p. 792.) On appeal, the defendant argued, "the trial court failed to recognize that it was not required to impose the bargained sentence." (Id. at p. 793.) The Court of Appeal declined to address any sentencing issues because the defendant had not obtained a certificate of probable cause to challenge the plea. (Id. at pp. 793-794.) However, in response to the defendants argument that the trial court had discretion to sentence him to a term anywhere between nine years and 365 days, the Court of Appeal stated: "The agreement was to sentence him to a prison term of nine years and, if he returned on a certain date and did not violate any law in the interim, he would be resentenced to 365 days in jail on weekends. As a result, the trial court had no discretion to resentence defendant to the lower sentence after it determined that defendant had violated his [plea agreement]." (Id. at p. 794.)
In People v. Carr, the trial court had made express findings that the defendant violated the terms of his plea agreement by committing a crime. (People v. Carr, supra, 143 Cal.App.4th at p. 792.) Here, the trial court did not expressly find that Lambroses failure to appear for sentencing was willful and without good cause. Because the record does not support such findings—express or implied—the trial court abused its discretion by imposing the higher sentence.
Thus, we need not decide whether we agree with People v. Carr to the extent it suggests a trial court never has discretion to impose the lower sentence when a defendant violates a plea agreement.
III. Amount of Restitution Fine
The abstract of judgment must be corrected to reflect the correct amount of the restitution fine. The trial court ordered Lambrose to pay a total restitution fine of $200 pursuant to Penal Code section 1202.4 for both cases. The abstract of judgment reflects a section 1202.4 restitution fine of $400.
DISPOSITION
The judgment is reversed and the matter remanded (1) to resentence Lambrose to a term no greater than the one he would have received under the plea agreement had he timely appeared for sentencing, and (2) to correct the amount of the restitution fine as set forth above.
We concur:
Rylaarsdam, Acting P. J.,
Aronson, J.