Opinion
F061873 Super. Ct. No. 10CM3120
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVID FREDRICK DENNIS, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Appellant, David Fredrick Dennis, appeals from a judgment entered after he pled guilty, pursuant to a plea bargain, to kidnapping (count 1/Pen. Code, § 207, subd. (a)),making criminal threats (count 3/§ 422), false imprisonment (count 4/§ 236), and evading a police officer (count 5/Veh. Code, § 2800.2, subd. (a)) and admitted four prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On May 10 2011, Dennis's appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, requesting this court to make an independent review of the record. By letter dated October 4, 2011, this court ordered the parties to brief several interrelated issues relating to Dennis's violation of the terms of his Cruz waiver, which was part of his negotiated plea, including the following: 1) whether issues relating to Dennis's violation of the Cruz waiver were cognizable on appeal in light of Dennis's failure to obtain a certificate of probable cause; 2) whether Dennis had a due process right to a hearing or an opportunity to present evidence that the violation of the Cruz waiver was not willful before the court could sentence him on all counts as per the Cruz waiver and, if so, whether the court violated his due process rights; 3) whether the record contains any evidence which supports an express or implicit finding by the court that Dennis's violation of the Cruz waiver was willful; 4) whether the record indicates that the court understood that Dennis's violation of the Cruz waiver had to be willful in order for the court to impose sentence on all counts; and 5) whether the court violated Dennis's plea bargain. The letter also advised the parties that the trial court neglected to dismiss three prior prison term enhancements that Dennis admitted, but were not imposed by the court.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
Having considered the parties' arguments, we will strike the three prior prison term enhancements and remand the matter to the trial court for further proceedings relating to Dennis's Cruz waiver.
FACTUAL AND PROCEDURAL HISTORY
On September 20, 2010, at approximately 12:00 p.m., Dennis's girlfriend, Rosa Escandon, was driving to Coalinga in a truck with Dennis as a passenger, when they argued and she decided to drop him off at his daughter's house. When they arrived at the daughter's residence, Dennis refused to exit the truck or give Escandon a key to a rental property that she asked for. The couple then began struggling over the key outside the truck. When Dennis told Escandon that they were going to return to their home, Escandon refused to get in the truck and Dennis unsuccessfully attempted to push her inside. Dennis then picked up Escandon, placed her in the rear seat, and drove off. As he did, he yelled at two men who witnessed the incident.
At approximately 12:16 p.m., two Lemoore police officers responded in separate patrol cars to a call of a man forcing a woman into a truck when they saw Dennis. One of the officers got behind Dennis's truck and activated his emergency lights. Although Dennis moved his truck to the right and appeared to be yielding, he suddenly made a U-turn and drove off. Both officers then followed the truck with their sirens and emergency lights on as the truck travelled at a high rate of speed and ran several stop signs. When the truck finally stopped, the officers detained Dennis and Escandon and transported them to the police station. At the police station when officers tried to take a ring that Dennis was wearing away from him, he kicked a table against a wall leaving two indentations.
On October 19, 2010, the district attorney filed an information, which in addition to charging Dennis with the counts and enhancements he pled to, also charged him with an additional felony count of making criminal threats (count 2) and three misdemeanor counts—vandalism (count 6/§ 594, subd. (a)), resisting arrest (count 7/§ 148, subd. (a)(1)), and domestic battery (count 8/§ 243, subd. (e)(1)).
On November 15, 2010, defense counsel filed a motion to dismiss (§ 995) counts 1 through 4.
On November 16, 2010, Dennis withdrew his motion and entered a negotiated plea to counts 1, 3, 4, and 5, and admitted the four prior prison term enhancements. Dennis's plea bargain included an agreement that Dennis would be released from custody with a Cruz waiver. The waiver provided that if Dennis showed up for his sentencing hearing, the court would sentence him on count 5 and one enhancement, dismiss the remaining counts and enhancements he pled to, and he would face a maximum term of four years. If he did not show up, the court would sentence him on all the counts and enhancements he pled to and he would face a maximum term of 14 years.
After taking Dennis's plea, the court apparently dismissed the remaining counts.
On Friday, January 14, 2011, Dennis failed to show up for sentencing.
On Tuesday, January 18, 2011, Dennis appeared in court and was taken into custody.
Tuesday was the first day that Dennis could appear in court because Monday was a holiday.
On January 21, 2011, Dennis appeared in court with his defense counsel. At the beginning of the hearing the following colloquy occurred:
"THE COURT: All right, we're going to call the case of People versus Dennis, this is case number 10CM3120. What I want to do is put on the record what we discussed in chambers, the situation with Mr. Dennis. [¶] ... [¶]
"All right. Mr. Dennis, you had originally pled to virtually all the counts that you were charged with I think with the exception of Count 2 or
3... [¶] ... [¶]
"THE COURT: Okay. At the last entry of plea it was a [Cruz]waiver, if you had showed up to court the Court -- the maximum exposure you were looking at was four years.
"Now, you were advised that if you did not show up to court on time that the maximum exposure was 14 years and with that you agreed, it's called a [Cruz] waiver. You did not show up to court on time and so now the Court has to decide whether or not to send you to prison for four years or three years or 14 years. But that's your maximum exposure is 14 years.
"Now, the District Attorney has looked at the file in your case and they're in agreement that you would be sentenced to seven years eight months which is half of 14 years. Approximately. And that would consist of a [kidnapping], which you have already pled to, with five years on that; eight months consecutive for the 2800.2, which is evading an officer; an additional consecutive eight months for terrorist threats in violation of ... [s]ection 422; and a prison prior which would be an additional year[] --
"THE DEFENDANT: Okay, your Honor, I got a question.
"THE COURT: -- for a total of seven years eight months.
"THE DEFENDANT: Okay.
"THE COURT: That is the offer and --
"THE DEFENDANT: Can I say something?
"THE COURT: Talk to your attorney first.
"THE DEFENDANT: I want to talk to you, your Honor.
"THE COURT: Okay, go ahead.
"THE DEFENDANT: Okay, just like during the preliminary hearing this supposed person who I made a terrorist threat to said that he didn't know me but he lied and he did. I mean the D.A. can pull their end of the deal? Even though I tried to come in Friday, okay, doesn't show any -- any goodness? I mean I didn't have to be here Tuesday morning if I was running, right? Am I correct on that, your Honor?
"THE COURT: That's correct.
"THE DEFENDANT: Okay, so -- but and you guys are all just trying to spit in my face the way I'm taking it because I shouldn't even bothered to come in. Okay, now, hold up, hold up, if all can change your deal I want to go to trial on it. Why can't I pull my plea?
"THE COURT: Ms. Winspur [defense counsel], what do you want to do?
"THE DEFENDANT: I'd rather go to trial.
"THE COURT: Well, that's at this point not an option.
"THE DEFENDANT: Well, why is it you can do what you guys want to do and I don't have no say?
"THE COURT: Ms. Winspur, when would you like to continue this case until? Do you want to have an opportunity to speak with your client about what's going on?
"MS. WINSPUR: Yes.
"THE COURT: All right. When would you like to continue it to?
"THE DEFENDANT: I don't want a continuance, I want to be sentenced today. I ain't staying in this jail. I done been jumped by the cops already.
"MS. WINSPUR: We would -- we would stipulate to the sentence that was agreed upon.
"THE COURT: All right, what we're going to do is trail this matter, and Ms. Winspur, you can talk a little bit more with your client and we'll see how we're going to proceed."
When the court recalled the case the following colloquy occurred:
"THE COURT: ... [¶] ... [¶] "Mr. Dennis did plead guilty on November 16th to violating ... [s]ection 207(a), which is a [kidnapping]; Count 3 -- that was Count 1; Count 3 is a 422, as a felony, criminal threats; Count 4, a 236, false imprisonment as a felony; Count 5 was ... [s]ection --excuse me, Vehicle Code [s]ection 2800.2, which was felony evading; and Mr. Dennis also admitted to four prison priors.
"This was a [Cruz] waiver, his maximum exposure is a maximum of 14 years. If he showed up on time to court he would have received a maximum of four years, that would have been Count 5 with one prison prior. Mr. Dennis did not show up on time and he did turn himself in to this court on Tuesday. Was it this week? I believe it was.
"MS. WINSPUR: Yes, Monday was a holiday, your Honor.
"THE COURT: It was Tuesday, January 18th. And we did meet in chambers discussing how the parties wanted to proceed. And [Ms.] Hacker [the prosecutor], you indicated to the Court that you were satisfied with a seven year eight month sentence?
"[MS.] HACKER: Yes.
"THE COURT: All right. And Ms. Winspur, you've talked this over with your client?
"MS. WINSPUR: I have.
"THE COURT: He's willing to stipulate to that?
"MS. WINSPUR: Yes.
"THE COURT: All right. And is that true, Mr. Dennis?
"THE DEFENDANT: I guess, I don't know. Is that half time, too?
"THE COURT: It is not.
"THE DEFENDANT: You might as well give me all 14."
"THE COURT: The [kidnapping] makes it a violent felony so it will be subject -- you will have to serve 85 percent of that.
"THE DEFENDANT: Uh-huh."
The aggregate total of these terms was actually seven years four months.
The court then sentenced Dennis to an aggregate term of seven years four months as follows: the middle term of five years on his kidnapping conviction in count 1, an eight-month term (one-third the middle term of two years) on his criminal threats conviction in count 3, a stayed term on his false imprisonment conviction in count 4, an eight-month term (one-third the middle term of two years) on his evading a peace officer conviction in count 5, and a one-year prior prison term enhancement. The court, however, neglected to impose sentence on or strike the other three prior prison term enhancements that Dennis admitted.
DISCUSSION
Dennis's Failure to Obtain a Certificate of Probable Cause
Does not Bar Review of the Issues the Parties were Directed to Brief
"Under section 1237.5, a defendant must obtain a certificate of probable cause to appeal from a judgment entered on a guilty plea unless the appeal falls within an exception. In this regard, a defendant need not comply with section 1237.5 if the appeal is based on '[g]rounds that arose after entry of the plea and do not affect the plea's validity.' [Citation.] Under this exception, compliance with section 1237.5 is not required if the defendant asserts 'issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.' [Citation.] [¶] This exception has been interpreted to include claims involving alleged violations of the plea agreement." (People v. Rabanales (2008) 168 Cal.App.4th 494, 500.)
Here, as in Rabanales the issues that we directed the parties to brief relate to whether the court violated Dennis's plea bargain by the manner in which it determined that he violated the terms of his Cruz waiver. Further, these issues arose after Dennis entered his plea and they pertain only to a matter involving sentencing. Therefore, Dennis's failure to obtain a certificate of probable cause does not preclude review of these issues. (People v. Rabanales, supra, 168 Cal.App.4th at pp. 500-501.)
Respondent contends that a certificate of probable cause is required to review these issues because Dennis's sentence of seven years four months resulted from a renegotiated plea bargain. Respondent is wrong. The plea was not renegotiated. Nor was the sentence renegotiated because even though it was negotiated, it was done within the parameters of the original agreement which provided for a maximum term of 14 years if Dennis violated the terms of the Cruz waiver.
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The Court Denied Dennis His
Due Process Right to Be Heard
A defendant may waive the right to be sentenced pursuant to his plea agreement. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) A defendant may "expressly" waive his or her rights under section 1192.5 if he or she has been "fully advised" of those rights, the waiver is "knowing and intelligent," and it is obtained "at the time of the trial court's initial acceptance of the plea." (Cruz, supra, at p. 1254, fn. 5.) In People v. Masloski (2001) 25 Cal.4th 1212 a unanimous court approved the so-called Cruz waiver. (People v. Masloski, supra, 25 Cal.4th at pp. 1219-1224.) For a nonappearance sanction to be effective, however, the parties must agree as part of the plea bargain to a specific sanction. Thus, a defendant can expressly agree to a greater sentence for nonappearance at the sentencing hearing as long as the defendant's waiver is part of the plea bargain itself. (People v. Masloski, supra, at pp. 1221-1222.) When enforcing a Cruz waiver for failure to appear, the failure must be willful. (Cruz, supra, 44 Cal.3d at p. 1254, fn.5.) When applied to intent, "willfully" means "with a purpose or willingness to commit the act or to make the omission in question." (CALJIC No. 1.20.) "The word 'willfully' does not require any intent to violate the law, or to injure another, or to acquire any advantage." (Ibid.)
"'The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.' [Citation.] ... 'The point is straightforward: the Due Process Clause provides that certain substantive rights—life, liberty, and property— cannot be deprived except pursuant to constitutionally adequate procedures.' [Citation.] [¶] 'The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." [Citations.]' 'An essential principle of due process is that a deprivation of life, liberty, or property "be preceded by notice and opportunity for hearing appropriate to the nature of the case.'' [Citations.]'..." (People v. Litmon (2008) 162 Cal.App.4th 383, 395, italics added.)
Here, the court implicitly found that Dennis violated the terms of his Cruz waiver by his failure to appear for sentencing on January 14, 2011. This finding resulted in an actual and potential loss of Dennis's liberty interests because instead of receiving a maximum sentence of four years, the finding resulted in Dennis being subject to a term of up to 14 years. It also resulted in the court not dismissing Dennis's convictions for kidnapping and making criminal threats, both serious felonies (§ 1192.7, subd. (c)(20) & (38)) that qualified as strike convictions and subjected him to a potential sentence of 25 years to life for any future felony convictions. Additionally, his kidnapping conviction qualified as a violent felony (§ 667.5, subd (c)(14)) and limited Dennis to earning a maximum of 15 percent conduct credit (§ 2933.1). Thus, we conclude that Dennis was entitled to an opportunity to be heard on whether his violation of the terms of the Cruz waiver was willful and that the court violated his right to due process when it did not provide him with this opportunity.
Respondent contends that Dennis impliedly waived his right to present evidence that his failure to appear was not willful by opting to proceed with the sentencing and stipulating to the sentence the court ultimately imposed. We disagree.
A defendant may waive constitutional and statutory rights provided the waiver is "knowing, intelligent and voluntary. [Citation.]" (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 [holding that as part of a plea bargain, a defendant may waive his right to appeal].) "The voluntariness of a waiver is a question of law which we review de novo. [Citation.] To make this determination, we examine the particular facts and circumstances surrounding the case, including the defendant's background, experience and conduct. [Citation.]" (Id. at p. 1660.) '"[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]' [Citation.] It '"[i]s the intelligent relinquishment of a known right after knowledge of the facts." [Citation.]' [Citation.] The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver." (Id. at p. 1662.)
Here, Dennis would not have known that he had a right to be heard on the issue of whether he violated his Cruz waiver because the court in effect ignored him and directed its comments to defense counsel after Dennis attempted to explain why he failed to appear and after he requested to be allowed to withdraw his plea. Further, although defense counsel indicated that Dennis was willing to stipulate to a term of seven years eight months, Dennis never actually did. Instead, when asked if he was willing to stipulate to a term of that length Dennis replied, "I guess, I don't know. Is that half time too? [¶] ... [¶] You might as well give me all 14." (Italics added.) Moreover, even assuming Dennis acquiesced to the proposed stipulated term, his acquiescence was coerced because had he not accepted it, he faced the prospect of a 14-year sentence. Accordingly, even if we construed Dennis's conduct as a waiver of his right to be heard on the Cruz waiver, we would also conclude that it was invalid because it was not knowing, intelligent, or voluntary.
The Record Does not Contain Any Evidence Which
Supports a Finding that Dennis's Failure to Appear was Willful
"An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.] The test on appeal is whether substantial evidence supports the conclusion of the trier of fact .... [Citation.]" (People v. Reilly (1970) 3 Cal.3d 421, 425.)
The record does not contain an express finding by the court that Dennis's violation of the Cruz waiver was willful. Respondent, however, contends that the absence of evidence that Dennis attempted to contact the court on January 14, 2011, and his failure to turn himself in until the following Tuesday, January 18, 2011, support an implied finding by the court that Dennis's violation of the Cruz waiver was willful. As noted earlier, the court did not allow Dennis to explain why he did not appear on January 14, 2011, and the court did not receive any other evidence on this issue. Had the court allowed Dennis to proffer an explanation, he may very well have explained to the court's satisfaction that his failure to appear on January 14, 2011, was not willful. Further, since the record is incomplete because Dennis was not given an opportunity to do so, the circumstances cited by respondent cannot be deemed sufficient to support a finding that Dennis's violation of the Cruz waiver was willful. Accordingly, we conclude that the record does not support a finding by the court that Dennis's failure to appear was willful.
The Record Indicates that the Court did not Understand that it had
to Find that Dennis's Violation of the Cruz Waiver was Willful
in Order to Impose the Harsh Sanctions of the Waiver
"'[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citations.] Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. [Citation.] Alternatively stated, if a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. [Citations.]... In re Carmaleta B. (1978) 21 Cal.3d 482, 496, ... ['discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action']; ... People v. Marquez (1983) 143 Cal.App.3d 797, 803 ['an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion'].) Therefore, a discretionary
order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citations.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law. [Citations.] The appellant bears the burden of showing a trial court abused its discretion. [Citation.]" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15-16.)
Respondent contends that the record does not contain any evidence that rebuts the presumption that the court regularly performed its official duty (Evid. Code, § 664). Thus, according to respondent, it must be presumed that the court was aware that it had to find that Dennis's failure to appear was willful before it could invoke the harsh sanctions of Dennis's Cruz waiver. Respondent is wrong.
The presumption of section 664 may be rebutted when "irregularity is clearly shown. [Citation.]" (In re Hare (2010) 189 Cal.App.4th 1278, 1292.) Irregularity here is clearly shown by the failure of the court to afford Dennis the opportunity to be heard and by the absence of any evidence supporting a finding that Dennis's violation of his Cruz waiver was willful. Further, although the court mentioned Dennis's Cruz waiver several times, it never made an express finding that Dennis's violation of the waiver was willful or otherwise mention that the waiver had to be willful for Dennis to forfeit the benefit of his plea bargain. Additionally, even after Dennis stated that he had tried to "come in" on Friday, January 14, 2011, and that he appeared in court on the next available court date, the court did not inquire of him why he did not appear for sentencing. Nor did the court in summarizing the discussions with the parties in chambers mention anything about Dennis's Cruz waiver. In light of these circumstances and the irregularities cited above, we conclude that the court misunderstood that it could only sanction Dennis for a willful violation of the Cruz waiver and after providing him with an opportunity to be heard.
The Court Violated Dennis's Plea Bargain
"When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.
"'"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." [Citation.] [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.' [Citations.]" (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Before the court could implement the harsh sanctions of the Cruz waiver, Dennis was entitled, as part of his plea bargain, to an opportunity to be heard and a determination, supported by substantial evidence, that his violation of the Cruz waiver was willful. Here, however, the court did not understand that it had to find that Dennis's violation of the Cruz waiver was willful, it failed to provide him with an opportunity to be heard on this issue, and the record is devoid of evidence supporting a finding that Dennis's violation of the waiver was willful. Accordingly, we conclude that the court violated Dennis's plea bargain when it sentenced him as if he had willfully violated the terms of the Cruz waiver and we will remand the matter for further proceedings on this issue.
The Prior Prison Term Enhancements
on Which the Court did not Impose Sentence
"The trial court had a duty to impose sentence in accord with the law. [Citations.] The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.) Further, since it is clear from the record that the court intended to dismiss the three prior prison term enhancements on which it did not impose sentence, we will strike these enhancements.
DISPOSITION
The three prior prison term enhancements on which the court did not impose sentence are stricken. The sentence imposed is vacated and the matter is remanded to the trial court for it to allow Dennis an opportunity to be heard on the issue of whether his violation of the Cruz waiver was willful. If after doing so the court determines that the violation was willful, it will reinstate the vacated sentence of seven years four months. If the court determines that the violation was not willful, it will dismiss counts 1, 3, and 4, and sentence Dennis to a maximum term of four years as per his plea bargain.