Opinion
B229374
11-16-2011
THE PEOPLE, Plaintiff and Respondent, v. MARVIN PAYNE, Defendant and Appellant.
Margolin Law Office, Allison B. Margolin, Marina Turnovsky and James Raza Lawrence for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA295971)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed.
Margolin Law Office, Allison B. Margolin, Marina Turnovsky and James Raza Lawrence for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General for Plaintiff and Respondent.
Defendant appeals from his conviction by plea bargain of second degree robbery (Penal Code, § 211; all subsequent code citations are to this code). The issues on appeal concern what has come to be called a "Cruz bargain": an arrangement in which a plea of guilty or no contest is entered pursuant to a plea bargain, but in which the maximum confinement is conditioned upon defendant appearing for sentencing and an express reservation that if defendant fails to appear without good cause, the court may impose a greater punishment than that specified in the bargain. (See People v. Cruz (1988) 44 Cal.3d 1247 (Cruz); People v. Vargas (1990) 223 Cal.App.3d 1107, 1112 (Vargas).)As explained in Vargas and other cases, the "bargain" requires an express admonition pursuant to section 1192.5 that the greater sentence may be imposed if the defendant fails to appear as promised, and the defendant's acceptance of that condition.
FACTUAL AND PROCEDURAL SUMMARY
In this case, defendant was charged with robbery (§ 211) and receiving stolen property (§ 496, subd. (a)) with a gun use enhancement (§ 12022.5, subd. (a)). The People and defendant were in agreement on a bargain under which defendant would plead no contest to the robbery charge and the weapon enhancement and would be sentenced to state prison for a term of eight years, and the receiving count would be dismissed.
The plea bargain was agreed to at a hearing on September 14, 2006. Defendant was personally present with his counsel, and the prosecutor. After the court was informed about the parties' agreement to the eight-year term, defense counsel asked the court if it could accommodate defendant with respect to the date of surrender, explaining that defendant's mother was ill. The court asked, "What are we talking about", to which defense counsel said, "[a]fter the first of the year to be sentenced, or to be sentenced today and surrender date later. However you want to logistically arrange it." The court, obviously concerned about a delay of that length, said, "That is a little bit of trouble. I wouldn't actually sentence today because . . . ." At that point defense counsel broke in, "If he could come back, certainly." The following colloquy then occurred:
"The Court: That will become a Cruz waiver if Mr. Payne [doesn' show up. "[Defense counsel]: Certainly.
"The Court: That he would be looking at the max, which is [fifteen years]. "[Defense counsel]: Yes, sir.
"The Court: But I don't know how the People feel about that kind of surrender date.
"[The prosecutor]: That is a really long time.
"[Defense counsel]: He is out on bail. His premium is up until February [2007]. So I mean if, for some reason, the case was not ripe for trial at this point, he would have been out [on bail] until that point anyway. . . .
"The Court: Well, [prosecutor,] the offer is extended. If you want to leave it to my discretion in terms of surrender date, the fact it would be an open plea if he doesn't come to court, I will give Mr. Payne until the beginning of January.
"[The prosecutor]: Yes. All right."
The court then summarized: "If the People's offer still stands, I would in fact accommodate Mr. Payne's request and defer sentencing until [early 2007], with the understanding and agreement being if Mr. Payne were to willfully fail to appear, then his plea and sentence would be open and he could, in fact, be sentenced to serve up to the maximum of 15 years in state prison under those circumstances."
The details of the plea bargain in terms of the charges were then placed on the record, and the court asked defendant if he understood the offer and whether it was acceptable to him; defendant answered in the affirmative. The court summarized the proposed sentence in terms of the eight-year plea bargain (five years base term plus three years for the firearm allegation), explaining that defendant would have to serve 85 percent of that time before being eligible for parole, and asked defendant if he understood and agreed. Defendant gave an affirmative response. The court next stated that it would put over the sentencing until early January 2007 so that defendant could get his affairs in order, and he would then go into custody immediately with no further extension.
The court next explained that while, normally, defendant could withdraw his plea if the court could not agree to the bargain, in this case, addressing defendant, the court said: "If you willfully fail to appear for your sentencing, or at any other time for purposes of this case, do you give up that right to withdraw your plea of no contest and your admission [about firearm use]?" Defendant answered, "Yes, sir."
Central to this case, the court next asked defendant if he agreed that, if he failed to appear, "the court [would] not be bound by the [eight-year sentence], but could, in fact, and would, in fact, sentence" him to up to the maximum 15-year term, and defendant again answered, "Yes, sir."
The court then set the matter for sentencing on January 11, 2007, and asked defendant, "Now, if you don't show up, what happens?" Defendant responded, "Fifteen years."
The court went on to inform defendant that if he failed to appear for sentencing, he would not only face a 15-year prison term but also would be subject to a consecutive three-year term for the crime of failure to appear.
Defendant was then ordered to appear for sentencing on January 11, 2007, with bail to stand. He did appear on that date, with new counsel who sought a continuance. The court granted the request, and continued the case for sentencing to February 21, 2007. It ordered defendant to appear at that time, and bail to stand.
Defendant failed to appear for sentencing, without sufficient excuse, on February 21, 2007. His attorney did not know his whereabouts. Bail was forfeited and a bench warrant issued for defendant's arrest. After several proceedings concerning the bail forfeiture, culminating in denial of the surety's request to vacate the forfeiture, defendant finally appeared on April 29, 2010. New counsel filed a motion (which was amended twice) to withdraw the plea. The motion was based on a claim of Cruz error. The motion ultimately was denied and a 15-year sentence was pronounced on August 13, 2010. A timely appeal followed.
DISCUSSION
Defendant argues on appeal that he did not agree to a 15-year term in the event of his failure to appear, and that this provision was simply added by the court, in violation of the rule in People v. Morris (1979) 97 Cal.App.3d 358 (and other cases) that a plea-bargained sentence cannot be increased as a sanction for the defendant's failure to appear, unless defendant is given the option to withdraw the plea. In the respondent's brief, the merits of that claim are not addressed. Instead, respondent asks that we dismiss the appeal because defendant did not obtain a section 1237.5 certificate of probable cause and, since the sentence was made pursuant to a plea bargain, the appeal cannot be entertained by the court. (Defendant sought the certificate, but his request was denied.)
The statute does provide that an appeal following a guilty or no contest plea pursuant to a plea bargain cannot be entertained absent the trial court's issuance of a certificate of probable cause. There are two exceptions to that rule. First, it does not apply to a claim of illegal search and seizure where defendant's motion to suppress was denied by the trial court. And second, it does not apply to "issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Buttram (2003) 30 Cal.4th 773, 780.)
The second exception was further explained in People v. Shelton (2006) 37 Cal.4th 759 (Shelton). In that case the defendant had pled to a sentence that gave the trial court discretion to sentence up to a "lid"—a maximum term that could not be exceeded without affording the defendant the opportunity to withdraw the plea. The question was whether the defendant could challenge the sentence imposed without a certificate of probable cause. The answer was that the certificate was not required in that situation. "[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. [¶] Viewed in this light, when a plea agreement includes a specified maximum sentence, a provision recognizing the defendant's right to 'argue for a lesser term' is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law. In this case, it is reasonable to conclude that both the prosecutor and the trial court believed, when the plea bargain was made and accepted by the court, that defendant understood it in the same manner, as reserving to him a right to argue for a sentence less than the specified maximum [in the plea bargain] only on the ground that the trial court should impose a lesser sentence in the exercise of its sentencing discretion, and not on the ground that the trial court lacked authority to impose the specified maximum sentence." (Id. at p. 768.) The court recognized that the plea agreement itself could provide that a dispute or uncertainty about the trial court's authority to impose a specified maximum sentence could be drawn so as to preserve the defendant's right to raise that issue at sentencing and on appeal. (Id. at p. 769.) But that situation was not presented in Shelton, nor is it presented here.
In this case, the plea colloquy made it clear that in the event defendant failed to appear for sentencing as ordered, the plea would be effectively changed from specifying a maximum term of eight years, to an open plea, under which the court could impose that sentence or a greater sentence so long as the sentence actually imposed is authorized by law. This is what the court did. We conclude that a certificate of probable cause is not required to challenge abuse of discretion by the trial court in choosing to impose the greatest permissible sentence.
Although defendant made arguments about fairness in his motion to withdraw the plea, on appeal his argument focuses entirely on the provision of the plea bargain allowing the court to impose a 15-year term if he failed to appear for sentence without good cause. Is that an attack on the validity of the plea, which would prohibit review of the merits on the claim absent a certificate of probable cause? In People v. Young (2000) 77 Cal.App.4th 827, the defendant pled no contest to all charges and admitted a strike allegation in exchange for a sentence lid of 25 years to life and reservation of the right to ask the court to dismiss one or more of the strikes. The trial court declined to do so, and imposed the lid sentence. On appeal, defendant argued that the sentence violated the constitutional prohibition against cruel and unusual punishment. The appellate court dismissed the appeal because, by making that argument, defendant was effectively claiming that the plea bargain was illegal and hence attacking the validity of the plea. (Id. at p. 832.) Later, in Shelton, the Supreme Court expressly agreed with this analysis because the defendant's challenge to the trial court's sentencing authority was "in substance a challenge to the validity of the negotiated plea", which could not be entertained without a certificate of probable cause. (Shelton, supra, 37 Cal.4th at p. 771.)
That is not quite the case before us. Here, defendant is arguing that, despite his agreement, the up to 15-year term option reserved to the trial court was not really a part of the plea bargain, but an appendage unilaterally added by the court, and hence subject to appellate review. The answer is found in the bargain that was actually struck. When the court learned that defendant wanted a fairly extensive delay in order to put his affairs in order, it indicated that it had a problem in accepting the plea without a Cruz waiver. The colloquy that followed makes it clear beyond doubt that defendant and his counsel clearly understood this and agreed to it. It was thus a part of the plea bargain, just as a similar arrangement was recognized to be in Vargas. Defendant was fully aware of the bargain he struck, and is bound by its terms.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
MANELLA, J.