Opinion
F071728
09-01-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL THOMAS DEVOUS, Defendant and Appellant.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RF007198A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth G. Pritchard, Judge. Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
—ooOoo—
Pursuant to a plea agreement, Michael Thomas Devous pleaded guilty to one count of possession of metal knuckles and admitted he had one strike prior and one prison prior. Devous was sentenced to seven years in prison. Devous argues his conviction and sentence must be reversed because the trial court's failure to order a competency evaluation at the time of sentencing was a prejudicial abuse of discretion. We reject this contention. Devous further argues that the trial court misconstrued the plea agreement in sentencing him to seven years. We agree with Devous on this point and will vacate his sentence and remand the matter for resentencing. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
The record reveals Devous was arrested for possession of a syringe and a pair of brass knuckles. He pleaded guilty without a preliminary hearing, so the facts are not ascertainable in any detail.
Devous was charged by a complaint filed in the Kern County Superior Court, with felony possession of metal knuckles and misdemeanor possession of drug paraphernalia. (Pen. Code, § 21810; Health & Saf. Code, § 11364.1.) The complaint further alleged, in connection with the felony charge, that Devous had a prior strike conviction and had served a prior prison term. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b).)
Subsequent statutory references are to the Penal Code unless otherwise specified.
Under section 21810, possession of metal knuckles is a wobbler offense.
Proceedings were temporarily suspended for an evaluation of Devous's competency. The court ultimately found Devous competent to stand trial. Pursuant to a plea bargain, Devous pled no contest to the charge of possession of metal knuckles and admitted the associated strike and prison priors; the possession of drug paraphernalia charge was dismissed. The plea agreement was two tiered in that it specified two different sentences—a higher overall sentence of seven years and a lower overall sentence of 32 months—that were computed with reference to, respectively, the upper term (three years) and low term (16 months) for the substantive offense as well as certain enhancement allegations. The plea agreement also included a Cruz waiver, which contemplated that Devous would be released on his own recognizance pending sentencing. The Cruz waiver specified that Devous would obtain the benefit of the bargained-for lower overall sentence of 32 months only if he (1) reported to the probation department, and (2) appeared at his sentencing hearing. The plea agreement provided that if Devous violated either of these two requirements, he would be subject to the higher overall sentence, which the prosecutor described as a "seven-year lid."
The applicable prison terms for a felony offense under section 21810 are: lower term of 16 months, middle term of two years, and upper term of three years. (See §§ 21810, 1170, subd. (h).)
People v. Cruz (1988) 44 Cal.3d 1247, 1253-1254 (Cruz).
After Devous changed his plea, he was released on his own recognizance. He reported to the probation department on the appointed day and appeared at his sentencing hearing, as required under the Cruz waiver. However, at some point prior to sentencing, he had suffered a new arrest (he was allegedly found in possession of a syringe containing methamphetamine).
At his sentencing hearing, which was held before a new judge (i.e., not the judge who conducted his change of plea hearing), a question was raised as to whether the new arrest violated the terms of the Cruz waiver incorporated in the plea agreement. Defense counsel argued that Devous had clearly complied with the unequivocal terms of the Cruz waiver by reporting to probation and appearing at sentencing, which was all the plea agreement required. Counsel emphasized: "There was no mention whatsoever [that] if my client committed a new law violation ... that would have been a violation of a term and condition of the Cruz waiver." In light of this development, the parties and the sentencing judge considered continuing the sentencing hearing, so as to set it before the judge who had conducted the change of plea hearing.
Devous, however, requested immediate sentencing and, against the advice of counsel, admitted the fact of his arrest and further conceded that the arrest was a violation of the terms of the Cruz waiver. The court indicated it would sentence Devous in accordance with the plea agreement, and imposed a sentence of seven years in prison (the upper term, doubled, with an additional year for the prison prior).
DISCUSSION
I. Terms of the Plea Agreement
Devous challenges the seven-year sentence imposed by the trial court. Devous contends the trial court misconstrued the plea agreement in imposing this sentence. He requests remand of the matter for resentencing in accordance with the terms of the plea agreement. The People contend the trial court properly construed the plea agreement and sentenced Devous pursuant to its terms, whereby his sentence should be affirmed.
Prior to sentencing, defense counsel had filed a Romero motion, as contemplated by the plea agreement. The trial court summarily denied the pending Romero motion as a term and condition of the plea agreement. Devous argues the trial court misconstrued the plea agreement by failing to consider the merits of his Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
We agree with Devous that the trial court misconstrued the plea agreement in sentencing him. The Cruz waiver was part of the plea agreement, as stated on the record and memorialized on the change of plea form. It specified that if Devous reported to probation and appeared at sentencing, he would be sentenced to the low term of 16 months, doubled, subject to a Romero motion. Here, there is no dispute that Devous reported to probation and appeared at sentencing. Devous had thus satisfied the conditions of the Cruz waiver as a matter of law. In finding otherwise and sentencing Devous to seven years under the plea agreement, the sentencing court misconstrued the plea agreement. The sentencing court further breached the plea agreement by failing to consider the merits of Devous's Romero motion. The parties' agreement, as reflected in the record, was that the Romero motion would be considered as part of the sentencing process, irrespective of any Cruz waiver violation.
A. Background
(i) The Change of Plea Proceeding
The record reflects the parties had negotiated a plea agreement containing a Cruz waiver to resolve the instant case. The parties and the court (i.e., Judge Stainfield) initially discussed the plea agreement in chambers. Subsequently, the terms of the plea agreement, including the Cruz waiver, were stated on the record by defense counsel, the prosecutor, and the court.
At the beginning of the change of plea hearing, the court asked counsel "to explain the details of the Cruz waiver on the record so that the record reflects [Devous's] full understanding of what's going on." Counsel stated that pursuant to the plea agreement, Devous would plead to the charge of possession of metal knuckles, plus admit the strike prior and the prison prior. Counsel explained that, as a consequence of his plea, Devous would be subject to the upper term of three years, doubled on account of his strike prior, with an additional year for the prison prior, for a total sentence of "seven years at 80 percent if the Romero is not granted." Counsel specified, however, that pursuant to a negotiated Cruz waiver, Devous would receive a more favorable bargain if he fulfilled certain conditions. Specifically, under the Cruz waiver, Devous would receive a sentence of the "low term of 16 months, doubled [because of his strike prior], but subject to a Romero [motion]," if he did "two things." "No. 1, he has to go to the probation department downtown, Truxtun Street ... by tomorrow to do an interview intake report." "The next thing that [he has] to do is [he has] to show up to court on the date and time that this judge gives [him]." Counsel clarified that, upon a failure to comply with these two requirements, Devous would be sentenced to the higher term specified in the plea agreement.
Counsel stated that Devous agreed to the Cruz waiver as part of the plea agreement against counsel's advice. Devous did so because the Cruz waiver enabled him to be released on his own recognizance that very day. Counsel indicated that she would have preferred for Devous to remain in custody pending sentencing, so he would be certain to receive the bargained-for sentence of the lower term, doubled, subject to a Romero motion, in exchange for his plea.
Next, the prosecutor stated his understanding of the plea agreement: "[T]he net result is that [Devous] is pleading today ... to what is in effect a seven-year lid. If he comes back in four weeks and the Court sets the sentencing date ... and having met with probation so the Court has the report upon which to sentence him - we would agree to the low-term doubled of 32 months, subject also to any Romero that's filed in the meantime." (At the subsequent sentencing hearing, the prosecutor described the plea agreement in similar terms: "[T]he terms of the original bargain ... was to be low-term doubled. The seven years would only be imposed or a portion thereof would be imposed if the Cruz waiver was violated." (Italics added.))
After the parties defined the plea agreement, the court advised Devous:
"Basically you're striking a bargain that you're going to be let out on your own recognizance tonight. All right? In return for that you're agreeing that you will go to probation the next day ... and you will go to adult probation and get signed up so they can do the report. [¶] ... [¶]
"The implications for you are extreme. The difference between doing 32 months and seven years when we're talking at 80 percent is a long time, and if you were to fail to go to probation tomorrow right from the get-
go you'd be coming in and you wouldn't be able to argue for even less than seven years. [¶] ... [¶]After Devous answered in the affirmative, the court continued its colloquy with Devous:
"[N]ot only do you have to go to probation so they can get a probation report completed ... [y]ou also have to be here for the date of sentencing that you just heard [defense counsel] state. If you don't do those things you don't get to come with an excuse ... unless it's a valid excuse. [¶] ... [¶]
"And because of that we're really explaining to you the gravity of what you're agreeing to. So you're agreeing to a significant sentence without the opportunity to argue against it if you don't comply with these two things. [¶] ... [¶]
"All right. Do you understand that if the sentencing judge does not agree - well, let me back up and tell you something else.
"[Defense counsel] mentioned about doing a Romero motion. That's an attempt to get rid of your strike as part of the sentencing. Do you understand that while she's going to try to do that that it's not likely that's going to prevail? Do you understand that?"
"THE COURT: Okay? I may or may not be the sentencing judge so I can't tell you yes or no, it's going to - but nobody is indicating to you yet, 'Don't worry' - wink, wink - 'It's going to be stricken.' Do you understand that?
"[DEVOUS]: Yes sir.
"THE COURT: Okay. So with all that known, and everything just explained to you again, is that the deal you want to take.
"[DEVOUS]: Yes, sir."
In addition to the statements of defense counsel, the prosecutor, and the court, the terms of the plea agreement, including the Cruz waiver, were noted by hand on the change of plea form signed by Devous and his attorney and submitted to the court. The court used the change of plea form as the basis for taking Devous's plea, subject to the plea agreement. The notation on the change of plea form provided:
"Client will plead to Ct 1, admit strike[,] upper term[,] admit 1 prison prior [for] 7 yr @ 80%. [¶] Cruz Waiver. [¶] If client reports to probation 1 day to do Interview Intake Report, and show[s] up day of sentencing[,] will be LT x 2 subject to Romero ."
Devous then pleaded guilty to the charge of possession of brass knuckles and admitted the strike prior and prison prior allegations. The prosecutor moved to dismiss the misdemeanor charge of possession of narcotics paraphernalia in the interest of justice; the court granted the motion. The court set sentencing for April 21, 2015. In concluding the hearing, the court addressed Devous: "So you're going to get out. You got a lot at stake here. We spent a lot of time talking to you to make sure that what [defense counsel is] so worried about ... doesn't happen, which is if you mess these things up, you come in here and end up doing seven years on this."
The court's minutes for the change of plea hearing reflect the court's statements during the hearing. The minutes clarify that Devous was advised as to the "consequences of failing to appear after [his] [Penal Code section] 859 Plea (People v. Cruz)," in that he would receive the "upper term of three years, admit both priors, for a total of [seven] years to be served at 80 [percent], if the Romero motion is not granted." The minutes further clarify: "Defendant to report to the probation officer no later than the close of business tomorrow, 3/25/15." Finally, the minutes state that the change of plea/waiver of rights form is "filed and incorporated herein by reference."
That very day, Devous was released on his own recognizance, subject to the agreed-upon terms of the Cruz waiver. A form entitled, "Conditions of Own Recognizance Release," which was signed by Devous, states, consistent with the plea agreement, that Devous was released on two conditions, i.e., that he report to probation on March 25, 2015, and appear in court on April 21, 2015.
(ii) Sentencing Hearing
On April 2, 2015, counsel filed a Romero motion as contemplated by the plea agreement. On April 4, 2015, Devous was arrested for alleged possession of a syringe containing methamphetamine. In any event, Devous appeared for his sentencing hearing on April 21, 2015, in custody. The sentencing hearing was set before a new judge, Judge Pritchard. The sentencing hearing was continued twice in an attempt to set it before Judge Stainfield, who had conducted the change of plea hearing, and to try to secure a transcript of the change of plea proceeding. Despite these attempts, the case was set before Judge Prichard again, on April 30, 2015, when Devous was finally sentenced.
The parties were in agreement that Devous had gone to the probation department for his intake interview as directed and appeared for his sentencing hearing. Nonetheless, a question was raised as to whether his recent arrest constituted a violation of the terms of his Cruz waiver, as specified in the plea agreement. Although the question would properly have been resolved with reference to the record of the change of plea proceedings, the court framed the issue as "a question of [Judge Stainfield's] interpretation of what he said to [Devous] that day." Devous had indicated he wanted to be sentenced without further continuances, even for purposes of setting the matter before Judge Stainfield. Thereupon the court advised him: "To do that I have to treat [the new arrest] as a violation of your Cruz waiver for sentencing." Against the advice of counsel, Devous admitted he had suffered an arrest and conceded that his arrest was a violation of the terms of the Cruz waiver specified in the plea agreement.
The court had the following exchange with Devous:
"THE COURT: And the issue was whether or not you did in fact violate your Cruz Waiver. We're proceeding today with myself on the bench and we're treating this as an acknowledgment on your part that you wish to be treated as a person who has in fact violated his Cruz Waiver. Is that clear to you?
"[DEVOUS]: Yes, sir. [¶] ... [¶]
"THE COURT: Mr. Devous, there was a possibility that we were going to put this out for some time to let Judge Stainfield have the opportunity to rule on what was exactly said when you entered into your plea. Do you understand that?
"[DEVOUS]: Yes, sir.
"THE COURT: My understanding from your attorney is you wish to proceed today. Correct?
"[DEVOUS]: Yes, sir.
"THE COURT: You want this to be your last day here; correct?
"[DEVOUS]: Yes, sir.
"THE COURT: To do that I have to treat this as a violation of your Cruz Waiver for sentencing. Do you understand that?
"[DEVOUS]: Yes, sir.
"THE COURT: And that's how you wish to proceed?
"[DEVOUS]: Yes, sir.
"THE COURT: That is what we'll do, sir."
Judge Pritchard proceeded to sentencing. He sentenced Devous as follows: "With regard to Count 1, a violation of Penal Code [section] 21810, subject to Penal Code [s]ection 667[, subdivision] (e), probation is denied. You're sentenced to the Department of Corrections for the upper term of six years, that sentence to be enhanced by one year pursuant to [s]ection 667.5[, subdivision] (b) of the Penal Code for a total fixed term of seven years."
The prosecutor, while observing that the sentence imposed indicated the court had implicitly denied Devous's pending Romero motion, asked the court to explicitly rule on the motion. Specifically, the prosecutor stated: "Your Honor, just ... in an abundance of caution could the People respectfully invite the Court to make a ruling on that Romero? If the Court is impliedly denying it, would the Court be comfortable explicitly denying it?" Perhaps on account of a confusing notation on the change of plea form, Judge Pritchard commented, "the plea bargain would only consider the Romero motion if the Cruz Waiver was not violated." The court then summarily denied the Romero motion "as a term and condition of the plea bargain."
A handwritten notation on the change of plea form, provided:
"Client will plead to Ct 1, admit strike[,] upper term[,] admit 1 prison prior [for] 7 yr @ 80%. [¶] Cruz Waiver. [¶] If client reports to probation 1 day to do Interview Intake Report, and show[s] up day of sentencing[,] will be LT x 2 subject to Romero ."
B. Analysis
Resolution of the issue presented here, i.e., whether Judge Pritchard sentenced Devous in accordance with the plea agreement, turns on principles pertinent to contract interpretation, because "'[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.'" (People v. Vargas (2007) 148 Cal.App.4th 644, 647 (Vargas).) The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties as it existed at the time of contracting. (Civ. Code, § 1636.) The language of a contract is to govern its interpretation, if the language is clear and explicit. (Civ. Code, § 1638.) Section 1192.5 is also relevant to the implementation of plea agreements as a specific type of contract. Section 1192.5 provides: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant ... 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."
In Cruz, supra, 44 Cal.3d at pp. 1253-1254, the California Supreme Court held that a defendant who is released pending sentencing but fails to appear at sentencing, retains the protection of section 1192.5, which provides that a defendant must either be afforded the benefit of his plea bargain or allowed to withdraw his plea. Cruz further clarified that a defendant may waive his rights under section 1192.5. (Cruz, supra, at p. 1254, fn. 5.) This led to the use, in plea agreements, of Cruz waivers, pursuant to which a court may impose a sentence in excess of the bargained-for term based on specific, agreed-upon conditions. (People v. Puente (2008) 165 Cal.App.4th 1143, 1146.)
Here the plea agreement, as memorialized on the change of plea form, provided:
"Client will plead to Ct 1, admit strike[,] upper term[,] admit 1 prison prior [for] 7 yr @ 80%. [¶] Cruz Waiver. [¶] If client reports to probation 1 day to do Interview Intake Report, and show[s] up day of sentencing[,] will be LT x 2 subject to Romero ."As this notation clarifies, the plea agreement contemplated that Devous would plead to a violation of section 21810 (possession of brass knuckles) and admit a strike prior and a prison prior. The plea agreement was two-tiered, in that it specified two different sentences and provided that Devous would receive the lower sentence if he complied with two agreed-upon terms, i.e., reported to probation the day after his change of plea hearing and appeared at his sentencing hearing on April 21, 2015. The plea agreement contemplated that if Devous failed to comply with these two conditions, he would be sentenced to a term of seven years to be served at 80 percent time.
The plea agreement was more fully described on the record by the parties. Defense counsel stated that pursuant to the plea agreement, Devous would plead to count one for the upper term of three years, plus admit the strike prior and the prison prior, for a total sentence of "seven years at 80 percent if the Romero is not granted." Counsel explained that this sentence was conditioned on a Cruz waiver, pursuant to which Devous would receive a more favorable sentence, specifically the "low term [of] 16 months, doubled [because of his strike prior], but subject to a Romero [motion]," if he satisfied two requirements. The "two things" Devous had to satisfy were: "No. 1, he has to go to the probation department downtown, Truxtun Street ... by tomorrow to do an interview intake report"; "[t]he next thing that [he has] to do is [he has] to show up to court on the date and time that this judge gives [him]."
Next, the prosecutor stated his understanding of the plea agreement: "[T]he net result is that [Devous] is pleading today for ... to what is in effect a seven-year lid. [¶] If he comes back in four weeks and the Court sets the sentencing date ... and having met with probation so the Court has the report upon which to sentence him - we would agree to the low-term doubled of 32 months, subject also to any Romero that's filed in the meantime." (At the sentencing hearing, the prosecutor described the plea agreement in similar terms: "[T]he terms of the [plea] bargain ... was to be low-term doubled. The seven years would only be imposed or a portion thereof would be imposed if the Cruz Waiver was violated." (Italics added.)
Based on the plea agreement as defined by the parties, the court then explained to Devous that he was required to comply with the two conditions stated by counsel in order to receive the lower term. The court admonished Devous that "[t]he difference between doing 32 months and seven years when we're talking at 80 percent is a long time." Thereafter, realizing it had forgotten to explain the role of the Romero motion to Devous, the court stated: "[W]ell, let me back up and tell you something else. [¶] [Defense counsel] mentioned about doing a Romero motion. That's an attempt to get rid of your strike as part of the sentencing. Do you understand that while she's going to try to do that that it's not likely that's going to prevail?" After the defendant answered in the affirmative, the court continued: "I may or may not be the sentencing judge so I can't tell you yes or no, it's going to-but nobody is indicating to you yet, 'Don't worry'-wink, wink-'It's going to be stricken.'"
Judge Pritchard, rather than Judge Stainfield, presided over Devous's sentencing hearing. Judge Pritchard was not privy to the plea negotiations or the advisements given to Devous at his change of plea hearing. At sentencing, the issue arose whether Devous had potentially violated his Cruz waiver by suffering a new arrest. This issue would properly and easily have been resolved by reference to the record of the change of plea hearing, wherein the terms of the Cruz waiver were unequivocally set forth. However, Judge Pritchard incorrectly framed the issue as "a question of [Judge Stainfield's] interpretation of what he said to [Devous] that day." Judge Pritchard further said that, in so far as he were to impose sentence himself, he would "have to treat [the arrest] as a violation of [Devous's] Cruz Waiver for sentencing." Devous was adamant that he did not want the sentencing hearing continued until Judge Stainfield was available to opine on the meaning of the terms of the Cruz waiver. Devous therefore acknowledged he had suffered an arrest and summarily conceded the court could find him in violation of the terms of the Cruz waiver. Judge Pritchard did exactly that and sentenced Devous to seven years, ostensibly pursuant to the plea agreement.
Here, the record—including the verbal statements of the parties and Judge Stainfield, as well as the notation on the change of plea form—is definitive that the agreed-upon terms of the Cruz waiver were twofold. Specifically, the plea agreement provided that if Devous (1) reported to probation on the day after the change of plea hearing, and (2) appeared at sentencing on April 21, 2015, he would receive a sentence of the lower term of 16 months, doubled, subject to a Romero motion. It was undisputed that Devous in fact reported to the probation department as directed and appeared at his sentencing hearing. Devous was thus in compliance with the unequivocal, agreed-upon terms of the Cruz waiver. In other words, the requirements of the Cruz waiver were satisfied as a matter of law. Indeed, the plea agreement specifically provided: "Cruz Waiver. [¶] If client reports to probation 1 day to do Interview Intake Report, and show[s] up day of sentencing[,] [the sentence] will be LT x 2 subject to Romero ." The court, in giving effect to the terms of the plea agreement, was thus required to sentence Devous to "LT x 2 subject to Romero ," as expressly provided in the plea agreement.
We reject the People's contention that the negotiated Cruz waiver included an additional implied term, to the effect that Devous would be sentenced to the higher term of seven years were he to suffer any new arrest. The People provide no authority for this proposition; nor is it supported by the record.
Instead of doing so, the court imposed a seven-year term. The court relied on Devous's concession that he had suffered a new arrest and that the court could find him in violation of the terms of the Cruz waiver. Without any reference to the record of the change of plea proceeding (e.g., the change of plea form, which had been submitted to the court and was incorporated by reference into the minutes of that proceeding), the court concluded that Devous's arrest constituted a violation of the previously agreed-upon Cruz waiver. However, in light of the unequivocal terms of the Cruz waiver, as readily apparent from the record (indeed from the change of plea form alone), the sentencing court's interpretation of the Cruz waiver was incorrect as a matter of law. The negotiated agreement clearly provided that if Devous reported to probation and appeared at sentencing, he would be sentenced to 32 months, subject to a Romero motion. Moreover, there is no indication in the record that the parties intended to change the existing plea agreement; the court was simply interpreting the previously agreed-upon terms. Thus, to the extent the court imposed a seven-year sentence based on Devous's admission of an arrest and his summary concession that the court could find him in violation of the Cruz waiver, the court misconstrued the clear terms of the negotiated Cruz waiver, and, in turn, the plea agreement underlying Devous's change of plea.
Indeed, any concession by Devous that his new arrest could be construed as a violation of the previously-negotiated Cruz waiver was ineffective. The sentencing judge was tasked with (1) interpreting the plea agreement and, (2) determining whether it had been violated. Here, the sentencing judge failed to correctly interpret the plea agreement in the first instance.
Judge Pritchard also misconstrued the plea agreement in refusing to consider the merits of Devous's pending Romero motion. The parties' statements and Judge Stainfield's comments at the change of plea hearing indicate that the entire agreement, i.e., both sentencing options, were contingent on a Romero motion to be filed by defense counsel. Indeed, Judge Stainfield characterized the Romero motion as "an attempt to get rid of [Devous's] strike as part of the sentencing" process; Judge Stainfield did not limit the application of the Romero motion to a particular factual scenario. Even the court's minute order from the change of plea hearing stated that the consequences of failing to appear had been explained to Devous, in that the seven-year term would be imposed, subject to a Romero motion. Furthermore, the prosecutor himself urged the sentencing court, i.e., Judge Pritchard, to deny the Romero motion on its merits, something Judge Pritchard did not do based on his misunderstanding of the plea agreement. (See Vargas, supra, at p. 647 [if the terms of an agreement are ambiguous, courts may consider other manifestations of the parties' intent, including the parties' subsequent conduct].)
Although discrete parts of the record, taken alone and out of context, reflect some ambiguity on this point, the record as a whole persuasively demonstrates that the plea agreement contemplated the Romero motion would be considered as part of the overall sentencing process. However, as Judge Stainfield indicated, and as defense counsel herself stated at sentencing, the Romero motion was not likely to be granted and, hence, was not a focus of defense counsel's comments at sentencing. We conclude the sentencing court misconstrued the plea agreement in imposing sentence without considering the merits of Devous's pending Romero motion.
We recognize the court was free to impose any permissible sentence if it chose to reject the plea agreement and gave Devous the opportunity to withdraw his plea. (§ 1192.5.) That is not what happened here. Rather, the court fundamentally misinterpreted the plea agreement. Accordingly, we will vacate the sentence and remand the matter for resentencing consistent with this opinion. II. Competency
The People contend that Devous's appeal is not cognizable without a certificate of probable cause. Although generally a defendant requires a certificate of probable cause to file an appeal after entering a guilty plea, an exception to the general rule applies when the appeal concerns the trial court's failure to give effect to the terms of the plea agreement. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1220.) Here, Devous contends the trial court failed to give effect to the terms of the plea agreement. Accordingly, his appeal is cognizable despite his failure to obtain a certificate of probable cause. The People further argue that Devous has forfeited the challenge to his sentence on account of his failure to object to the sentence at the sentencing hearing. However, we may reach the issue even if it were forfeited. (People v. Barrero (1985) 163 Cal.App.3d 1080, 1083; People v. Smith (2003) 31 Cal.4th 1207, 1215) Since we have addressed the merits of Devous's challenge to his sentence, we need not resolve his argument that, to the extent the issue was not properly preserved for review, counsel was ineffective, requiring remand for resentencing. --------
Criminal proceedings in this matter had initially been suspended while a competency evaluation of Devous was conducted by a court-appointed psychologist. The evaluating psychologist diagnosed Devous with an unspecified mood disorder and polysubstance dependence. The psychologist concluded that Devous was competent to stand trial in so far as he had an attorney to represent him. Based on the psychologist's report, Devous was found competent to stand trial.
Devous now contends that the fact that he conceded that his new arrest resulted in a violation of the Cruz waiver incorporated in the plea agreement, casts serious doubt on the court's prior finding that he was competent to stand trial. Devous further argues that in rejecting his attorney's advice as to how to proceed at sentencing, he effectively proceeded without counsel, which he was not competent to do. Devous argues the judgment must be reversed and the case remanded for a competency proceeding to consider whether he was rationally able to assist his counsel at sentencing.
"A person cannot be tried or adjudged to punishment ... while that person is mentally incompetent. A defendant is mentally incompetent ... if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367.) "'When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing.'" (People v. Jones (1997) 15 Cal.4th 119, 149, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) "'Evidence is "substantial" if it raises a reasonable doubt about the defendant's competence to stand trial. [Citation.] The court's duty to conduct a competency hearing arises when such evidence is presented any time "prior to judgment."'" (Jones, supra, at p. 150.) "Absent substantial evidence of a defendant's incompetence, 'the decision to order such a hearing [is] left to the court's discretion.'" (People v. Panah (2005) 35 Cal.4th 395, 432.)
Moreover, if a defendant's lack of cooperation with trial counsel stems from unwillingness rather than inability, a competency hearing is not required. (People v. Lewis (2008) 43 Cal.4th 415, 526 [competency hearing not required when "there was no substantial evidence that (the) defendant's lack of cooperation stemmed from inability rather than unwillingness"], overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920.) Finally, "'[w]hen a competency hearing has already been held and the defendant has been found competent to stand trial ... a trial court need not suspend proceedings to conduct a second competency hearing unless it "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding.'" (Jones, supra, at p. 150.) We review a court's failure to order a competency hearing for abuse of discretion. (People v. Oglesby (2008) 158 Cal.App.4th 818, 828.)
At the sentencing hearing, the court considered whether Devous was in violation of the terms of the Cruz waiver specified in the plea agreement. Judge Pritchard advised Devous that were he to sentence Devous that day, he would have to treat Devous's new arrest as "as a violation of [the] Cruz Waiver for sentencing." Defense counsel appeared not to have the transcript of the change of plea hearing and wanted to continue the sentencing hearing so Judge Stainfield could resolve the issue. She was confident that Judge Stainfield was well aware that the Cruz waiver encompassed only two explicit conditions, i.e., that Devous report to probation and that he appear at sentencing. Devous, who was in custody, was not amenable to continuing the matter until Judge Stainfield (and possibly a transcript) was available and requested immediate sentencing. To facilitate immediate sentencing, Devous admitted he had suffered an arrest and conceded that the sentencing court could find him in violation of the Cruz waiver. Devous clarified he was ready to be treated as if in violation of the Cruz waiver because he did not want to return to court yet again for sentencing (sentencing had already been continued twice previously). Specifically, Devous answered in the affirmative when the court asked him, "You want this to be your last day here; correct?"
The record shows that Devous rejected his attorney's advice to continue his sentencing because he did not want to return to court yet again to be sentenced. Rather, Devous preferred immediate sentencing, even at risk of being sentenced to a higher term than he might otherwise have received. Devous's choice alone did not require the sentencing court to suspend proceedings and order a new competency evaluation. (People v. Ramos (2004) 34 Cal.4th 494, 509 [defendant's preference for the death penalty did not require court to order competency hearing].) No issue regarding Devous's mental competency was raised by counsel, nor was there another basis for the court to suspect Devous's competency status had changed. Nor are we persuaded that Devous's rejection of his attorney's advice was tantamount to him representing himself in the case. In sum, the court did not abuse its discretion in failing to order a second competency hearing.
DISPOSITION
The judgment of conviction is affirmed. Devous's sentence is vacated and the matter is remanded for resentencing consistent with this opinion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, ACTING P.J. /s/_________
PEÑA, J.
In contrast, the court's minutes of the change of plea hearing provide: "Plea is entered on condition that defendant will be sentenced to the upper term of three years, admit both priors, for a total of [seven] years to be served at 80 [percent], if the Romero is not granted." Similarly, defense counsel had characterized the plea agreement, at the change of plea hearing, as follows: Devous would plead to count one for the upper term of three years, plus admit the strike prior and the prison prior, for a total sentence of "seven years at 80 percent if the Romero is not granted." The prosecutor had characterized the plea agreement, at the change of plea hearing, as containing a "seven-year lid." At the sentencing hearing, the prosecutor told Judge Pritchard: "[T]he terms of the original bargain ... was to be low-term doubled. The seven years would only be imposed or a portion thereof would be imposed if the Cruz waiver was violated." (Italics added.)