Opinion
A151076
09-11-2018
THE PEOPLE, Plaintiff and Respondent, v. GERARDO RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR182324 & CR178308)
Defendant Gerardo Rodriguez reached a plea agreement with the prosecution and entered a plea of no contest to threatening an officer. One of the terms of the plea agreement provided that Rodriguez would be released on his own recognizance prior to sentencing with the promise he would meet certain conditions, including not committing any new offenses, and that he waived his right to withdraw his plea if those conditions were not met (the so-called "Cruz waiver"). At sentencing, the trial court found Rodriguez committed a new offense while he was released, and sentenced him to two years, eight months in prison pursuant to the stipulated higher sentence agreed to in the Cruz waiver. Rodriguez contends there was insufficient evidence to support the finding that he violated the terms of the Cruz waiver. We affirm.
The name is based on People v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5 (Cruz). (See, e.g., People v. Masloski (2001) 25 Cal.4th 1212, 1215 [where the parties agreed to a 16-month term as part of plea agreement, the "Cruz waiver" of the plea agreement provided that the defendant could receive a sentence of up to six years in prison if she failed to appear for sentencing]; (People v. Rabanales (2008) 168 Cal.App.4th 494, 504-505 (Rabanales) [the "Cruz waiver" of plea agreement included, among other things, a promise by the defendant not to violate any law before sentencing].)
When a plea agreement provides for a specified higher sentence if the defendant fails to meet certain conditions, this may also be referred to as a "Vargas waiver" based on People v. Vargas (1990) 223 Cal.App.3d 1107, 1113 (Vargas). (People v. Puente (2008) 165 Cal.App.4th 1143, 1145, fn. 2.) We follow the parties' lead and refer to the relevant terms of the plea agreement in this case as a "Cruz waiver."
BACKGROUND
We briefly describe the three separate cases charged by the district attorney against Rodriguez.
CR 178308 - felony gang-related battery
In January 2016, in case No. CR 178308, Rodriguez pleaded no contest to battery committed for the benefit of a criminal street gang, a felony, and admitted the special allegation that he committed the gang offense with a prior wardship. The trial court suspended imposition of sentence and placed Rodriguez on formal probation for three years.
CR 181224 - misdemeanor failure to register as a gang-related offender
In October 2016, in case No. CR 181224, Rodriguez pleaded no contest to failing to register with law enforcement as a gang-related offender, a misdemeanor, and was ordered to serve 150 days in custody.
CR 182324 - felony threatening an officer
On January 31, 2017, the district attorney filed a new complaint against Rodriguez in case No. CR 182324. Rodriguez was charged with two felony offenses, threatening a public officer for the benefit of a criminal street gang (count 1), and battery committed for the benefit of a criminal street gang (count 2), based on an incident that occurred in November 2016 while Rodriguez was in a special housing unit in county jail.
Rodriguez was still on formal probation in case No. CR 178308 (felony gang-related battery), and the district attorney also filed a petition and order to revoke formal probation based on the same incident.
Plea agreement
At a hearing on March 2, 2017, Rodriguez and the prosecution reached a plea agreement. The parties agreed Rodriguez would plead no contest to count 1 (felony threatening an officer) in case No. CR 182324, the remaining count and gang allegations would be dismissed, Rodriguez would be placed on formal probation for three years with 180 days in jail, and prior to the sentencing hearing, Rodriguez (who was currently in custody) would be on supervised release on his own recognizance (supervised OR) with a Cruz waiver.
The trial court confirmed with Rodriguez that he had an opportunity to talk with his counsel and that he had read the plea form. Rodriguez had no questions. Rodriguez pleaded no contest to count 1 and the remaining count and special allegations were dismissed. The court found Rodriguez made a knowing, voluntary, and intelligent waiver of his rights. The court then asked, "What exactly is the agreement?"
Defense counsel answered, "The agreement is he will be released today on supervised OR. He will return for sentencing. During that time, if he commits a new offense, violates the terms of supervised OR, fails to appear in court, fails to make his probation appointment—it is listed specifically on the plea form. Then the understanding, when he comes back, it would be a stipulated two-year, eight month prison sentence. [¶] If he complies with those terms, when he comes back, he will remand [sic] to serve the remainder of his 180-day jail sentence. He'll be placed on three-years formal probation with the terms as set forth in the plea form." The prosecutor confirmed this was also her understanding of the agreement.
On the second page of the plea form Rodriguez signed and initialed, the preprinted text of paragraph 3 reads, "Plea Bargain - The following promises have been made to me as a condition of my plea(s). No other promises have been made. I understand that if the Court refuses to follow this plea bargain then I will be allowed to withdraw my plea(s) of guilty or no contest and enter a not guilty plea." Handwritten below the preprinted text are the following terms, which include the "Cruz waiver." "Dismiss special allegations per PC 186.22(b)(1)(a) & count 2, 3 yrs FP [formal probation], 180 cj [county jail], waive appeal, no [Penal Code section] 17(b) at sentencing, refer to probation. Terms full search, seizure, including electronic, no weapons/guns/ammo, full gang terms including registration, no drugs or illegal substances including marijuana. Testing. Release today*, remand at sentencing, with Cruz waiver. If defendant commits any new offense, FTA's [fails to appear] at sentencing, fails to make probation appointment within 1 week, or fails to attend probation appointment, sentence will be stipulated 2 yrs on this case + 8 months consecutive on probation case. CR178308 Revoke & reinstate, extend 1 year. *on supervised OR."
Rodriguez also admitted that he violated probation in case No. CR 178308 (felony gang-related battery). The trial court released Rodriguez on his own recognizance, and a sentencing hearing was set for his two felony cases, case No. CR 182324 and case No. CR 178308. Finding of violation of Cruz waiver and sentencing
On March 27, 2017 (before the scheduled sentencing hearing), the probation department filed a petition in each of the two felony cases to revoke the supervised OR agreement on the grounds that Rodriguez violated the conditions of supervised OR by submitting a positive drug test for cocaine and marijuana on March 3, refusing to submit to urine drug/alcohol testing on March 5 and March 7, and failing to attend the Community Corrections Service Center program for seven consecutive days. The probation department further reported that Rodriguez was not answering his phone and his whereabouts were unknown.
On April 10, 2017, the trial court held the sentencing hearing for the two felony cases. Rodriguez admitted that he violated his supervised OR agreement as alleged in the petitions to revoke, and the trial court accepted the admission.
The prosecutor argued Rodriguez violated two terms of the Cruz waiver in his plea agreement: first, he violated the terms of his supervised OR, and second, he committed a new offense in violation of Health and Safety Code section 11550 "based on his recent use of cocaine." She offered the drug test results as evidence. The prosecutor pointed out that Rodriguez was released from custody on March 2, the day before his positive drug test, and that he then did not submit to further drug testing, an "indication that he was using while he was released and pending this sentencing."
Defense counsel objected to the court considering the lab tests. The trial court responded that Rodriguez "just admitted" to the petitions. Defense counsel argued, "He admitted submitting a positive drug test, but he didn't admit that lab test." The trial court clarified that it understood the admission as Rodriguez admitting he used cocaine. Defense counsel asserted that Rodriguez did not admit to using at any particular time (i.e., after he entered the plea agreement).
Defense counsel disputed that the terms of the Cruz waiver required Rodriguez to comply with supervised OR, arguing he only personally accepted the terms written on the plea form, "which did not include the violation of supervised O.R." Defense counsel stated that she thought the standard of proof for an alleged violation of a Cruz waiver was preponderance of the evidence, and the issue was whether it had been proven by a preponderance of the evidence that Rodriguez used drugs after he made the plea agreement on March 2, 2017.
The prosecutor agreed the standard of proof was preponderance of the evidence. --------
The trial court confirmed that Rodriguez was in custody through March 2, the day he signed the plea form with the Cruz waiver. The court stated it would consider only Rodriguez's admission to submitting a positive drug test on cocaine (i.e., his admission to the allegations of the petitions to revoke), implicitly sustaining defense counsel's objection to admission of the lab test results.
The court found Rodriguez violated his Cruz waiver. The court ruled, "I find that the burden that is required for this hearing, to see whether or not you violated your agreement to obey all laws after you were released on March 2nd, was violated by the fact that there was a positive drug test for cocaine and marijuana that was submitted . . . by you on March 3rd 2017, that for this purpose, the burden of proof has been established sufficiently by a preponderance of the evidence. [¶] Therefore, pursuant to your agreement that you entered into that was negotiated by your counsel, which was a good agreement, that if you were released and came back and followed all the rules that you would be sentenced to 180 days, and clearly, you did not."
The prosecutor later asked, "[J]ust to be clear, in CR182324 [threatening an officer], is the Court finding that a violation of the Cruz waiver occurred because the preponderance of the evidence shows he committed a new offense, an 11550?" The court answered, "It was by a preponderance of the evidence . . ., and it was based on the fact that the test—the test he submitted on March 3rd, 2017, tested positive for cocaine, which is a new offense."
The court followed the plea agreement and imposed two years for threatening an officer in case no. CR 182324, and a consecutive eight months for gang-related battery in case No. CR 178308.
DISCUSSION
"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.]' " (People v. Shelton (2006) 37 Cal.4th 759, 767.)
In Cruz, our Supreme Court held that when a trial court withdraws its approval of a plea agreement because the pleading defendant fails to appear for sentencing, the defendant is permitted to withdraw his plea. (Cruz, supra, 44 Cal.3d at p. 1249.) "However, in a footnote, the Supreme Court noted a trial court could 'impose a sentence in excess of the bargained-for term' as a result of a failure to appear if, at the time the trial court accepts the plea, the defendant so agrees and expressly waives the right to withdraw the guilty plea." (Rabanales, supra, 168 Cal.App.4th at p. 504, quoting Cruz, supra, at p. 1254, fn. 5.) As we have mentioned, a term in a plea agreement that provides for a higher sentence if the pleading defendant fails to meet certain conditions while he is released before sentencing is often referred to as a Cruz or Vargas waiver.
Here, Rodriguez agreed as part of his plea agreement that "[i]f [he] commits any new offense . . ., sentence will be stipulated 2 yrs on this case + 8 months consecutive on probation case." The trial court found he committed a new offense by using cocaine, and therefore imposed the stipulated sentence pursuant to the plea agreement. This is appropriate under Cruz, supra, 44 Cal.3d at page 1254, footnote 5, and Vargas, supra, 223 Cal.App.3d at page 1113.
Rodriguez contends, however, that there was insufficient evidence to support the trial court's finding that he violated the terms of the Cruz waiver. He makes three arguments.
First, Rodriguez argues the Cruz waiver did not include a provision that a violation of the terms of his supervised OR would constitute a violation of the Cruz waiver. We agree, but this does not help Rodriguez. The trial court expressly found that he committed "a new offense" by using cocaine. Rodriguez does not dispute that abstaining from committing new offenses was a term of the Cruz waiver.
Second, Rodriguez claims the trial court erred in applying preponderance of the evidence as the standard of proof in determining whether he violated the Cruz waiver. He offers no authority affirmatively supporting this proposition, however. Instead, he cites Rabanales, supra, 168 Cal.App.4th at page 505, and People v. Carr (2006) 143 Cal.App.4th 786, 790, cases in which the Cruz waiver expressly provided, "I further understand and agree that any willful violation of these terms will be decided by the sentencing judge without a jury and by a preponderance of the evidence." Rodriguez points out that the Cruz waiver in his plea agreement does not contain similar language, and argues, "Absent such a waiver, appellant is entitled to a finding of guilt beyond a reasonable doubt for the new offense." We are not persuaded. Rodriguez's sentence was not based on a conviction of a new offense. Rather, the trial court imposed the stipulated sentence (for convictions based on Rodriguez's no-contest pleas) as a matter of enforcement of the plea agreement. We see no reason why a violation of the Cruz waiver would have to be proved beyond a reasonable doubt.
As we have discussed, a plea agreement is a form of contract. As such, its terms are " '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.' " (People v. Shelton, supra, 37 Cal.4th at p. 767.) Here, the most persuasive evidence of the parties' intent is their subsequent conduct. Defense counsel and the prosecutor agreed at the sentencing hearing that the applicable standard of proof was preponderance of the evidence. Further, as the Attorney General points out, a violation of a Cruz waiver is akin to a probation violation, and there is no right to a jury trial or proof beyond a reasonable doubt in a probation revocation hearing. (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60.) Under the circumstances of this case, we conclude the trial court did not err in using preponderance of the evidence as the standard of proof for determining whether Rodriguez violated the terms of the Cruz waiver.
Third, Rodriguez argues the evidence was insufficient to support the finding that he violated the terms of the Cruz waiver because there was no evidence presented about the time or circumstances of the drug test, and no evidence "to definitively show that [Rodriguez] used an illicit substance between the time of his release and the time of the test." We disagree.
"The question whether [a] defendant violated the conditions of his release [in violation of a Cruz waiver] is one of fact, which we review under the substantial evidence test. 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.' " (Rabanales, supra, 168 Cal.App.4th at p. 509.)
Here, Rodriguez admitted that he submitted a drug test positive for cocaine and marijuana on March 3, 2017, and that he failed to submit to drug testing on March 5 and 7, 2017, which no-shows corroborated that he was using drugs while he was released from custody and awaiting sentence. This was sufficient evidence for the trial court to determine that Rodriguez committed a new offense by using drugs after he agreed to the Cruz waiver on March 2, 2017. The court noted that Rodriguez was still in custody when he agreed to the Cruz waiver, and reasonably could have inferred that Rodriguez would not have had access to drugs while he was in custody.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.