Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F06835
HULL, J.Defendant, Marvin Cooper, was charged with one count of second degree commercial burglary in violation of Penal Code section 459 (undesignated statutory references that follow are to the Penal Code), one count of obtaining and displaying personal identifying information without authorization of the owner in violation of section 530.5, subdivision (a), and one count of possessing and displaying an altered or falsified driver’s license or identification card in violation of section 470, subdivision (b). Pursuant to a plea agreement, he entered a no contest plea as to each of the charges. Sentenced to three years eight months in prison, he appeals contending (1) that the trial court erred in refusing to allow him to withdraw his no contest plea and (2) that his sentence on the third count should have been stayed pursuant to section 654. Because the upper term sentence to be imposed in the event defendant failed to appear was not part of the plea bargain and because defendant was not advised of and did not waive the protections of section 1192.5, he should have been allowed to withdraw his no contest plea. We reverse the judgment of conviction and remand the matter to the trial court with directions to set aside defendant’s no contest plea, reinstate the original charges, and conduct such further proceedings as may be appropriate. We need not reach the second contention.
Facts and Proceedings
We take the facts underlying the complaint from the probation report.
On July 13, 2007, defendant went into the Sears store on Arden Way in Sacramento and opened a line of credit in the amount of $4,000 using a counterfeit driver’s license and a VISA card and social security number that was not his. He then purchased $3,767 in merchandise. Store employees became suspicious and alerted security personnel when defendant’s picture fell off the driver’s license while it was being handled by one of the cashiers.
Thereafter, defendant was arrested and charged as noted above.
It appears that on August 7, 2007, the day set for the preliminary hearing, there was an unrecorded side bar conference at which time the trial court and the attorneys discussed a plea agreement. The discussion apparently included an agreement that defendant would enter a plea of no contest to each of the three charges and the trial judge would sentence him to one year in county jail. It also appears that the parties and the trial judge discussed defendant’s request to be allowed 60 days out of custody before judgment and sentence and before he began his stay in the county jail and that the People objected to his request.
Following the side bar conference, defendant changed his plea. Pertinent parts of the plea colloquy follow.
“[DEFENDANT’S ATTORNEY]: Mr. Cooper is prepared to enter a no-contest plea to the three counts of the felony complaint for a promise of no state prison at the outset, and he will enter a Cruz [(People v. Cruz (1988) 44 Cal.3d 1247 (Cruz))] waiver for sentencing after
“THE COURT: Are all three of these counts connected in the commission?
“[THE DEPUTY DISTRICT ATTORNEY]: Yes.
“THE COURT: All right. So the exposure is three years on a Cruz waiver?
“[DEFENDANT’S ATTORNEY]: Yes.
“[THE COURT]: Mr. Cooper, you need to be aware of several things. For starters
“[THE DEPUTY DISTRICT ATTORNEY]: Well, I’m sorry Judge. They’re all related in the same event; however, I don’t believe they would all necessarily be 664 [sic] one another.
“[THE COURT]: The 530.5 would probably not be.
“[THE DEPUTY DISTRICT ATTORNEY]: Likely, Counts Two and Three would be 654.
“[THE COURT]: So the exposure on this is three years eight months. Do you understand?
“[THE DEFENDANT]: Yes.
“[THE COURT]: And if I release you from custody and you do not appear when ordered, then you will in fact be doing the three years eight months.
“[THE DEFENDANT]: Yes, sir.
“[THE COURT]: Do you understand that?
“[THE DEFENDANT]: Yes, your Honor.
“[THE COURT]: And should you appear when you’re ordered to do so, then the promise is that you will be ordered to serve one year in the county jail and be placed on probation for up to five years. [¶] Do you understand that?
“[THE DEFENDANT]: Yes.”
The trial court thereafter completed the plea inquiry at the conclusion of which the People, citing defendant’s long criminal history, objected to defendant’s release pending sentencing with a Cruz waiver. That notwithstanding, the court released defendant on his own recognizance, ordered him to appear within 24 hours at the probation department for the initiation of a probation report and set the matter for judgment and sentence on October 10, 2007. The court also reminded defendant that, if he failed to appear at the probation department within 24 hours, he would then “be doing the three years eight months when [he was] picked up.”
Defendant failed to appear at the probation department and failed to appear on October 10, 2007, for judgment and sentence.
Defendant was thereafter arrested and appeared for judgment and sentencing on January 10, 2008. At that time he moved to withdraw his no contest plea on the ground that he thought that under the agreement he would receive eight months in county jail and not one year and on the ground that, given the court’s intention to sentence him to three years eight months in state prison, that sentence was not available to the court because the trial judge had not advised him of, nor had he waived, the provisions of section 1192.5. The trial court denied his motion to withdraw his plea and sentenced defendant to three years eight months in state prison. This appeal followed.
Discussion
I
The Cruz Waiver
Section 1192.5 provides in pertinent part:
“Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided by this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.
“If the court approves of the plea, it shall inform the defendant prior to making the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.” (§ 1192.5.)
In Cruz, defendant pleaded guilty to a felony in return for a promise that he would be sentenced either to probation for a maximum of five years and serve up to one year in county jail or, at defendant’s option, to 16 months in state prison without probation. He was released on bail pending sentencing but failed to appear at the time of judgment and sentence. He was thereafter arrested and, at the subsequent sentencing proceedings, he was told by the trial court that, given his failure to appear, the court would not abide by the earlier plea agreement. Defendant moved to withdraw his plea. The trial court denied the motion and sentenced defendant to two years in state prison. (Cruz, supra, 44 Cal.3d at p. 1249.)
The Supreme Court reversed the conviction and held that the defendant did not lose the protection of the provisions of section 1192.5 when he failed to appear at the time of sentencing and that he should have been allowed to withdraw his guilty plea. (Cruz, supra, 44 Cal.3d at pp. 1250, 1254.) But the court noted that, by its holding, it did “not mean to imply . . . that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term. Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.” (Id. at p. 1254, fn. 5.)
There have emerged in the case law at least two situations where, after a defendant’s failure to appear at sentencing, the trial court can disapprove the plea agreement, deny the defendant’s request to withdraw his plea, and impose a sentence to imprisonment for a period longer than the bargained-for term.
The first of those situations is noted in footnote five of the Cruz opinion which we have quoted above. That is, at the time the trial court accepts a defendant’s plea, the trial court may explain the protections of section 1192.5 and accept a knowing and intelligent waiver of those protections. If the defendant thereafter fails to appear at sentencing, the trial court may impose a longer term than the bargained term without allowing defendant to withdraw his plea. There was no discussion of a section 1192.5 waiver at the time the court initially accepted the plea in this matter.
The second situation is where an increased term is a specific part of the agreement between the defendant and the People, to be imposed in the event that defendant fails to appear at the time of judgment and sentence. Thus, in People v. Vargas (1990) 223 Cal.App.3d 1107, defendant pleaded guilty to possession of a controlled substance pursuant to an agreement between the defendant and the People that called for a two-year prison sentence if defendant appeared at sentencing but a five-year term if he did not. Defendant failed to appear at sentencing and later claimed that the court could not sentence him to the five-year term because it had not advised him of, nor had he waived, the provisions of section 1192.5.
The Court of Appeal affirmed the judgment. The court reasoned that section 1192.5 did not apply because the court had not repudiated the plea bargain between the defendant and the People.
In People v. Casillas (1997) 60 Cal.App.4th 445 (Casillas), defendant pleaded no contest to a charge of possession of methamphetamine pursuant to an agreement that he would be placed on felony probation and serve 90 days in county jail and that he would be released on his own recognizance pending judgment and sentence. But the agreement between the parties also provided that, if defendant failed to appear, the trial court could sentence him to up to three years in prison. The Court of Appeal found that “the return provision was a valid part of the plea agreement itself and, therefore, enforceable without regard to section 1192.5.” (Id. at p. 453.)
Helpfully, the Casillas court set forth certain principles on the issue of “Cruz waivers” and the applicability of section 1192.5. “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.” (Casillas, supra, 60 Cal.App.4th at pp. 451-452.)
We note that this distinction between a plea agreement that provides for alternate sentences in the event of the defendant’s failure to appear as compared to a greater than bargained-for sentence for nonappearance imposed unilaterally by the trial was recognized and implicitly accepted by our Supreme Court in People v. Masloski (2001) 25 Cal.4th 1212.
We observe that the critical distinction that must be kept in mind is that a “plea bargain” within the meaning of section 1192.5 and the cases cited above is the agreement between the People and the defendant. A defendant will almost always agree to accept an additional sanction for nonappearance if that is what it takes to be released pending judgment and sentence, but that does not make his agreement part of the plea bargain. As such, this unilateral imposition of a greater sanction by the trial court calls forth the protections of section 1192.5.
As we have set forth above, in this matter, unreported plea discussions took place at side bar. The record does not reflect the nature of those discussions or who agreed to what. What the record does reflect is that the district attorney objected strenuously to defendant’s release pending sentencing. It is thus apparent that defendant’s release pending judgment and sentence with a “Cruz waiver” was not a part of the plea bargain between the parties, that is, the defendant and the People. The additional sanction of three years eight months for failure to appear having been imposed unilaterally by the trial court and no waiver of the provisions of section 1192.5 appearing, the defendant should have been allowed to withdraw his no contest plea. The judgment must be reversed.
Disposition
The judgment is reversed and the matter is remanded to the trial court with directions to set aside defendant’s pleas of no contest, reinstate the original charges, and conduct such further proceedings as may be appropriate.
We concur: RAYE, Acting P. J. CANTIL-SAKAUYE, J.