Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F05905
OPINION ON REHEARING
SIMS, Acting P.J.
This case returns to us for rehearing upon transfer from the California Supreme Court.
Defendant Kenneth Bowers entered into a plea bargain that called for his plea of no contest to possession of cocaine base for sale and his sentence to be six years in state prison. During the same court hearing at which defendant entered his plea, the trial court released defendant on his own recognizance (O/R) pursuant to an agreement with defendant that defendant could be sentenced to up to 10 years in state prison if he did not appear at the time set for sentencing, November 3, 2005. Defendant did not appear at the time set for sentencing; he was picked up on a bench warrant; and, at sentencing, the trial court imposed a term of eight years in state prison.
On appeal, defendant contends his conviction and sentence should be reversed and he should be allowed to withdraw his plea. He argues that his O/R release agreement, which provided for a greater sentence if he did not appear at sentencing, was not part of the plea bargain so that he should be allowed to withdraw his plea.
On April 25, 2007, we issued an unpublished opinion concluding defendant’s contentions were not cognizable because he failed to obtain a certificate of probable cause. (Pen. Code, § 1237.5, subd. (b); Cal. Rules of Court, rule 8.304(b); In re Chavez (2003) 30 Cal.4th 643, 646, 651.)
On August 8, 2007, the California Supreme Court granted defendant’s petition for review and transferred the case to this court with directions to vacate our order denying defendant’s petition for rehearing and to issue a new order granting the petition for rehearing, which we have done. The parties filed supplemental briefs.
Defendant’s supplemental brief contains one heading, stating, “A CERTIFICATE OF PROBABLE CAUSE IS NOT REQUIRED IN THIS MATTER BECAUSE APPELLANT’S REQUEST FOR AN ORDER REQUIRING SPECIFIC PERFORMANCE OF HIS PLEA AGREEMENT DOES NOT CHALLENGE THE VALIDITY OF HIS PLEA AGREEMENT WITH THE PEOPLE.” Defendant refers to the concluding paragraph of his original brief, which stated, “Appellant is entitled either to specific performance of his plea agreement with the People or to have the opportunity to withdraw his plea should the trial court decide not to honor the terms of the plea agreement. (Pen. Code, § 1192.5.) The trial court’s failure to offer appellant that opportunity requires this court to reverse appellant’s conviction and sentence and remand the matter to Superior Court with directions to the trial court to afford appellant the opportunity to withdraw his plea.” However, this concluding paragraph’s passing reference to specific performance was the only reference to specific performance in the opening brief. The opening brief contained only one heading, which stated: “APPELLANT’S CONVICTION AND SENTENCE MUST BE REVERSED AND APPELLANT MUST BE GIVEN AN OPPORTUNITY TO WITHDRAW HIS PLEA BECAUSE APPELLANT’S AGREEMENT WITH THE TRIAL COURT PERMITTING THE IMPOSITION OF A SENTENCE IN EXCESS OF [SIX] YEARS IN STATE PRISON WAS NOT PART OF APPELLANT’S PLEA AGREEMENT WITH THE PEOPLE.” Nothing in this heading gave notice of a claim for specific performance. We may disregard contentions not adequately briefed. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard claims perfunctorily asserted without development and without clear indication they are intended to be discretion contentions].) We recognize that defendant, in support of specific performance, relies on a recent case (People v. Brown (2007) 147 Cal.App.4th 1213) which had not yet issued when defendant filed his original brief in June 2006. However, Brown cited a 2004 case which recognized the possibility of a claim for specific performance of a plea agreement. (Id. at p. 1224, citing People v. Renfro (2004) 125 Cal.App.4th 223, 233.) We accordingly decline to consider specific performance on the ground it was not adequately briefed.
As to defendant’s original contention that he must be given an opportunity to withdraw his plea because his agreement with the trial court (for a higher sentence if he failed to appear for sentencing) was not part of his plea agreement with the People, we disagree.
Thus, both parties agree to the following principles: “First, when a defendant fails to appear at sentencing after entering a bargained plea with no discussion about a specific sanction for nonappearance, he or she is entitled to withdraw the plea if the court refuses to honor the plea bargain. Second, the same 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. Third, 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.” (People v. Casillas (1997) 60 Cal.App.4th 445, 451-452.)
Defendant argues this case falls within the second principle, i.e., after the parties negotiated the basic plea bargain, the court imposed an additional condition providing a sanction for nonappearance.
Defendant calls this second principle a “Cruz waiver” pursuant to People v. Cruz (1988) 44 Cal.3d 1247. However, the term “Cruz waiver” applies to the third principle, not the second. (Id. at p. 1254, fn. 5.)
The People argue this case falls within the third principle (known as a Cruz waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5), because defendant himself agreed to a specific sanction for nonappearance as part of the plea bargain. We agree with the People. As will appear, the record shows defendant expressly agreed to a specific sanction for nonappearance. Even though his agreement occurred after defendant stated his no contest plea, it occurred immediately after he stated his no contest plea, as part of the plea proceeding, and the trial court referred to an off-the-record discussion about the matter. Thus, we shall conclude the Cruz waiver was part of the plea bargain. Although the record does not show the prosecutor expressly agreeing to this sanction, the prosecutor is not challenging the sentence. Defendant is. Having agreed to the sanction, defendant cannot challenge the sentence without a certificate of probable cause.
The record shows:
“THE COURT: . . . I understand that [defendant] is going to be admitting Count One in the 905 case for three years doubled, that’s six years. People are going to be dismissing the case ending 989.
“[Prosecutor]: That’s correct, your Honor.
“THE COURT: All right. Mr. Bowers, do you understand that this possession for sale case carries three years, four years or five years in prison. With the strike, that can be doubled up, so your maximum will be ten years in state prison with a fine up to $10,000.
“THE DEFENDANT: Yes, I understand.
“THE COURT: . . . Instead of the maximum, you’re going to be sentenced to the low term of three years, doubled for the strike, so it’s going to be six years in state prison.”
The court described the consequences of the plea (including the consequence that at sentencing defendant would be bound by the plea unless the court decided to reject it) and elicited defendant’s response that he understood. The court then described the constitutional rights being given up by the plea and elicited defendant’s response that he understood and gave up those rights. The court asked if counsel both joined, and defense counsel and the prosecutor each stated they joined. The prosecutor stated the factual basis for the plea.
The record then shows:
“THE COURT: Now, we have discussed that your attorneys are asking that you be released pending sentencing in order to care for your mom who is sick.
“THE DEFENDANT: Yes.
“THE COURT: And I have a feeling about what I’m going to do on that, but I want to make sure you’re not entering this plea simply in order to get you out of custody.
“THE DEFENDANT: Oh, no.
“THE COURT: Are you entering this plea because you’re guilty?
“THE DEFENDANT: Yes, Sir.”
The court then took defendant’s plea of no contest and admission of a prior serious felony conviction. The court stated there was a factual basis for the plea, and the “plea and waivers were made knowingly, intelligently and voluntarily. I accept and approve of the plea and conditions and find the defendant guilty.”
The court ordered defendant to appear for sentencing and stated: “Now, if you come back here on that date, I can give you no more than this six years in state prison. If I want to give you more, you get to withdraw your plea. [¶] Do you agree that, number one, if you fail to appear back here on that date or, number two, if you have any violations of crime, any violations of the law between now and then, that this six-year limitation will be lifted and your plea will stand, and I’ll be free to sentence you to up to ten years in state prison?
“THE DEFENDANT: Yes.
“THE COURT: Do you agree to that?
“THE DEFENDANT: I’ll agree to that.”
The prosecutor was not asked to and did not expressly agree to the 10-year maximum in the event of defendant’s failure to appear at sentencing.
When defendant was picked up on a bench warrant and returned to the court for sentencing, the prosecutor noted “there was an agreement. The agreement was that he would get let out, then he’d have to come back. [¶] And if he didn’t come back without good cause, he was going to do ten years. He broke that agreement.” The trial court agreed and sentenced defendant to eight years in prison.
We conclude defendant’s Cruz waiver was part of his plea bargain, such that a certificate of probable cause was required in order to appeal.
Thus, People v. Vargas (2007) 148 Cal.App.4th 644, held a certificate of probable cause was required where a defendant challenged his sentence pursuant to a Cruz waiver to which he agreed as part of his plea bargain. (Id. at p. 646.) The exact sequence of events is not described, but Vargas defined the issue as “whether defendant’s claims pertain to issues that arose after the entry of his plea.” (Id. at p. 651.) Vargas said, “When the issue on appeal challenges the defendant’s sentence following a guilty plea or plea of nolo contendere, the determining factor in deciding whether the issue arose before entry of the plea such that a certificate of probable cause is required is whether the plea agreement specifies a particular sentence or whether it specifies a sentence range. ‘“A challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself” and thus requires a certificate of probable cause. [Citation.]’ [Citations.] In other words, if the defendant agreed to a specific sentence as part of his plea agreement the sentence is an issue that arose before entry of the guilty plea, and in order to challenge that sentence on appeal, the defendant must obtain a certificate of probable cause.” (Id. at pp. 651-652.)
Vargas said that “in taking defendant’s guilty plea, the trial court expressly advised defendant that if he violated the terms of the Cruz waiver, the trial court would sentence defendant to the maximum term of eight years. Defendant confirmed that he understood and, in doing so, agreed to that eight-year sentence as part of the Cruz waiver. The Cruz waiver in turn was an integral part of defendant’s plea agreement. Therefore, defendant’s challenge to the agreed-upon sentence is a challenge to the validity of his plea and such a challenge requires a certificate of probable cause. [Citation.]” (Vargas, supra, 148 Cal.App.4th at p. 652.)
Here, the Cruz waiver, though stated on the record immediately after defendant pled no contest, was part of the plea proceeding, and the trial court referred to an off-the-record discussion. People v. Casillas, supra, 60 Cal.App.4th 445, inferred an off-the-record agreement, stating, “From the court’s immediate statement of the consequences of nonappearance (‘If he does not, then ninety day maximum sentence will be three years in prison, is that correct?’) and the rapid concurrence of both defense counsel and Casillas, we infer the sanction itself had been negotiated and was not simply imposed by the court.” (Id. at p. 453.) In a footnote, Casillas said, “Of course, we have no way of knowing who first broached the sanction, defense counsel, prosecutor, or judge. Equally unknowable on this record is whether the sanction represented the court’s ‘policy’ for presentencing [O/R] releases. Our inability to trace the sanction to its origin does not concern us. Since the prosecutor does not have the power to order defendants released from custody, at some point in any negotiation the parties must secure the court’s agreement.” (Id. at p. 453, fn. 4.)
Similarly in this case, we infer from the court’s reference to an off-the-record discussion, plus the court’s immediate statement of consequences for nonappearance, and defendant’s rapid concurrence, that the Cruz waiver was part of the plea agreement.
Defendant claims it is “beyond question” that his plea bargain did not include any provision for his O/R release, because the trial court expressly stated, “I want to make sure you’re not entering this plea simply in order to get you out of custody,” to which defendant responded, “Oh, no.” We disagree with defendant’s interpretation of the record. The more reasonable inference is that the parties discussed a Cruz waiver subject to the court’s decision to grant O/R release -- a matter which was always within the power of the court rather than the prosecutor. (Casillas, supra, 60 Cal.App.4th at p. 453, fn. 4.)
We conclude defendant’s failure to obtain a certificate of probable cause is fatal to his appeal.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J., ROBIE, J.