Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FVI021015 & FVI702408. Annemarie G. Pace, Judge..
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
McKinster J.
In San Bernardino County Superior Court case No. FVI021015, defendant and appellant Jose Geraldo Casas pled no contest to corporal injury to a cohabitant under Penal Code section 273.5, subdivision (a), pursuant to a written plea agreement and waivers set forth in People v. Vargas (1990) 223 Cal.App.3d 1107, 1113 (Vargas), and People v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5 (Cruz). The plea agreement provided that defendant would be sentenced to probation with 90 days in jail, and released under Cruz, on the condition that he would not violate any law and have no contact with the victim. On September 14, 2007, during sentencing, the trial court found that defendant violated the terms of his Cruz waiver and sentenced him to four years in state prison, and suspended the sentence.
All statutory references are to the Penal Code unless otherwise specified.
On October 31, 2007, in San Bernardino County Superior Court case No. FVI702408, defendant was charged with robbery under section 211, petty theft with priors under sections 484, subdivision (a), and 666, and giving false information to a police officer under section 148.9, subdivision (a). On November 7, 2007, defendant pled no contest to second degree robbery. Pursuant to a written plea agreement, defendant agreed to serve two years in state prison to run concurrent with the four-year sentence imposed in the corporal injury case, in exchange for dismissal of the remaining counts and enhancements, and the court’s agreement to sentence him “forthwith.” On the same day, the trial court sentenced defendant under the terms of the plea agreement.
On appeal, defendant contends that his due process rights were violated because the trial court failed to conduct a hearing on the alleged violation of the Cruz waiver in the corporal injury case. For the reasons set forth below, we shall affirm the judgment.
I
The facts underlying the crimes are not at issue on appeal.
A. Corporal Injury Case—Case No. FVI021015
On July 23, 2007, defendant entered into a written plea agreement wherein he would plead guilty to corporal injury to a cohabitant, in exchange for probation with 90 days in county jail, the termination of probation in three cases, and the dismissal of a fourth case, $220 restitution, and release on his own recognizance pursuant to a Cruz waiver. One term of defendant’s release was that he have no contact with the victim. On September 14, 2007, at the sentencing hearing, the victim advised the trial court that she had contact with defendant via telephone. The trial court found that defendant was in violation of the terms of the Cruz waiver. There was an off-the-record discussion during which defense counsel conferred with defendant. Defense counsel then advised the court that defendant wanted to admit the violation, which defendant did. The trial court then sentenced defendant to four years in prison, and suspended the sentence.
B. Robbery Case—Case No. FVI702408
In October 2007, defendant was charged with robbery, petty theft with priors, and giving false information to a police officer. On November 7, 2007, defendant pled no contest to second degree burglary, in exchange for a two-year sentence to run concurrent with the four-year sentence imposed in the corporal injury case and the dismissal of the remaining counts and enhancements. Pursuant to this plea agreement, the trial court executed the previously suspended four-year sentence imposed in the corporal injury case and imposed a concurrent two-year sentence for the robbery case.
On January 12, 2008, defendant wrote a letter to the public defender claiming that he was withdrawing his plea and asking for assistance. On February 13, 2008, defendant wrote a “statement of probable cause and grounds for appeal” letter, which was addressed to the trial court. In the letter, defendant claimed that he believed his sentence to be two 2-year sentences, to run concurrently. Instead, defendant contended that he received a four-year sentence and a two-year sentence. Defendant claimed that someone crossed out a two-year sentence to which he had agreed, and wrote four years instead. On February 20, 2008, defendant filed a “belated notice of appeal.”
On April 28, 2008, defendant filed a petition for writ of habeas corpus in this court, case No. E045649. On July 14, 2008, defense counsel filed supplemental points and authorities in support of the petition. (See case No. E045649.) On August 7, 2008, we granted the petition and permitted defendant to file a late notice of appeal and deemed it constructively filed within the 60-day time limit. (See case No. E045649.)
On August 13, 2008, defendant filed a notice of appeal and requested a certificate of probable cause in the trial court. The trial court denied the request. On January 21, 2009, defendant filed his opening brief on this appeal. On February 9, 2008, defendant filed a petition for writ of mandate, case No. E047661, asking us to order the trial court to grant his request for a certificate of probable cause. On May 19, 2009, we issued a peremptory writ of mandate directing the trial court to vacate its order denying defendant’s application for certificate of probable cause and issue a new order granting the application. Pursuant to our order, we hereby deem the issuance of a certificate of probable cause in this case.
We take judicial notice of the prior unpublished opinions issued by this court, and the records from those appeals. (Evid. Code, § 459.)
II
ANALYSIS
Defendant’s sole contention on appeal is that his due process rights were violated in the corporal injury case because the trial court failed to hold a formal hearing on his Cruz waiver. We disagree.
“A ‘Cruz waiver’ gives a trial court the power to ‘withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term,’ if the defendant willfully fails to appear for sentencing. ([Cruz, supra, ] 44 Cal.3d [at p.] 1254, fn. 5.)” (People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.)
Similar to a Cruz waiver, a Vargas waiver “is derived from the case of [Vargas, supra, ] 223 Cal.App.3d [at p.] 1113..., where the defendant agreed in a plea bargain to be sentenced to a two-year term if he appeared for sentencing and a five-year term if he failed to appear for sentencing. The defendant failed to appear for sentencing and the court sentenced the defendant to a five-year term, which the appellate court deemed proper. (Id. at pp. 1113-1114.)” (People v. Puente, supra, 165 Cal.App.4th at p. 1145, fn. 2.)
In this case the written guilty plea form, that defendant and defense counsel signed and defendant initialed, states:
“16. Cruz Waiver (if applicable) I understand I have an absolute right under California law to withdraw my plea if the court, for any reason, does not follow the plea bargain agreement. I also understand that I cannot receive any additional penalty or punishment for any subsequent failure to appear or any new offense unless I am properly charged and convicted of such an offense. I understand and agree as part of this plea bargain agreement to be released upon my own recognizance and to waive these rights, and as a condition of my release, will: [¶]... [¶]
“f. No contact with [the victim].
“g. If I violate any of the above conditions in paragraph 16a-16f, I then agree the court will no longer be bound by this plea bargain and I would not have any right to withdraw my plea. 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. I further understand and agree, that if the court finds any willful violation of these terms, the court will be free to impose any greater sentence than expressly stated in this agreement, up to the maximum penalty for each offense and enhancement to which I am pleading guilty/no contest or admitting, and I will not have any right to withdraw my plea.”
At the hearing wherein defendant pled no contest on July 23, 2007, the following exchange took place:
“THE COURT:... You are to have no contact with [the victim]. [¶] Do you understand all those terms?
“THE DEFENDANT CASAS: Yes. I do.
“THE COURT: Okay. [¶] Then do you understand and agree that if you willfully violate any of these terms, the Court will no longer be bound by the plea agreement, and you would not have the right to withdraw your plea?
“THE DEFENDANT CASAS: Right.
“THE COURT: Do you 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?
“THE DEFENDANT CASAS: Yes, ma’am.
“THE COURT: Do you further understand and agree if the Court finds any willful violation of these terms, the Court will be free to impose any greater sentence than expressly stated up [to] the maximum penalty for the offense to which you have plead, and you would not have the right to withdraw your plea?
“THE DEFENDANT CASAS:: Yes, ma’am.
“THE COURT: So if you willfully violate these terms, how much time can I give you in state prison?
“THE DEFENDANT CASAS: Probably four years.
“THE COURT: That’s it. [¶] Do you have any questions?
“THE DEFENDANT CASAS: No. I don’t.”
Thereafter, on September 14, 2007, at the sentencing hearing, the victim testified. The court asked the victim when she had contact with defendant last; the victim stated, “Today.” The court then asked how the victim had contact with defendant. The victim responded: “Um. I called his—the place he’s staying at, his sister’s house, and I talked to him on the phone.” When the victim again confirmed that she spoke with defendant by phone on that day, the court stated: “[Defendant’s] in violation of his Cruz Waiver.” The court asked the victim to take a seat and asked counsel to approach. Thereafter, an off-the-record discussion was held at the bench between the court and counsel, then between defendant and his counsel, and again between counsel and the court. When the proceeding reconvened, the following transpired:
“[DEFENSE COUNSEL]: We’re ready.
“THE COURT: Ready to proceed?
“[DEFENSE COUNSEL]: Yes, ma’am.
“THE COURT: Okay. [¶] Mr. Casas, do you want to admit that you are in violation of your Cruz Waiver by speaking with [the victim] this morning on the phone?
“THE DEFENDANT: Yes, ma’am.
“THE COURT. All right. [¶] What I will do for that admission is give you one hundred twenty days in the county jail on the weekender-work-release program, and I will sentence you to four years state prison suspended today, which means that if you violate your probation in any way, there’s no argument about it. You will have the right to a hearing, but the sentence will be four years if you violate your probation.
“THE DEFENDANT: Yes, ma’am.”
The record, as detailed above, shows that when the trial court discovered that defendant had contact with the victim, an off-the-record discussion was held between counsel and the court. Thereafter, defendant conferred with his counsel and another discussion was held between counsel and the court. When the proceedings went back on the record, no one asked for a hearing on the Cruz violation. Instead, defendant admitted that he violated his Cruz waiver. In exchange for the admission, the trial court suspended his four-year state prison sentence. Therefore, the record shows that defendant forfeited a hearing on the Cruz violation in exchange for a more lenient sentence. It is well settled that constitutional, as well as statutory, rights may be waived or forfeited by failure to make a timely assertion of the right. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Collins (2001) 26 Cal.4th 297, 305; People v. Simon (2001) 25 Cal.4th 1082, 1097.)
In sum, the record shows that defendant did not complain when the trial court found that he violated his Cruz waiver in the corporal injury case because the court suspended his four-year sentence and released him. However, when defendant violated the plea agreement a second time by committing a robbery and the suspended sentence was executed, defendant decided to complain and assert a due process violation. Having received the benefit of his bargain, defendant has forfeited his right to complain about a hearing on his violation of the Cruz waiver.
III
DISPOSITION
The judgment is affirme
We concur: Ramirez P.J., Hollenhorst J.