Opinion
D057483
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. DONNY DURHAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCN208988 & SCD211768
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed in part, reversed in part and remanded with directions.
On February 1, 2008, in case No. SCN208988, Donny Durham entered a negotiated guilty plea to transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 2). The plea bargain included a 180-day sentence lid. On April 21, 2008, in case No. SCD211768, Durham entered a negotiated guilty plea to perjury (Pen. Code, § 118, subd. (a); count 25) and being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 26), both committed while he was out of custody on bail (§ 12022.1, subd. (b)). The change of plea form included the statement "sentence to court with a [seven-]year exposure . . . ." In April 2010, the parties stipulated to a withdrawal of the plea in case No. SCD211768, and Durham entered a negotiated guilty plea to conspiracy to commit forgery (§§ 182, subd. (a)(1), 476; count 22) and perjury (§ 118, subd. (a); count 25) with a bail enhancement as to the latter count. The new plea bargain included a lid of six years eight months. The change of plea form stated, directly below the lid provision, "in conjunction w[ith] sentencing in case [No.] SCN208988."
The factual basis for the plea was the preliminary hearing transcript, which showed that in March 2006 a police officer searched Durham's person pursuant to a Fourth Amendment waiver and found cocaine base and a scale.
All further statutory references are to the Penal Code.
The factual basis for the plea was as follows: In 2007, Durham conspired with another person to commit the crime of forgery of financial institution paper, and unlawfully stated as true a material matter, which he knew was false, by signing an affidavit concerning fraudulent withdrawals.
Durham characterizes this language as "ambiguous." We agree.
In May 2010, the court sentenced Durham to five years four months in prison: in case No. SCD211768, the two-year lower term for perjury plus two years for the enhancement, and a concurrent two-year middle term for conspiracy; and in case No. SCN208988, a consecutive term of one year four months (one-third the middle term). At sentencing, defense counsel noted Durham had never withdrawn his plea in case No. SCN208988, and the plea bargain in that case carried a 180-day sentence lid. The court stated it was not bound by the 180-day lid because the six-year eight-month lid in the 2010 plea bargain in case No. SCD211768 applied to both cases together. The court also noted the bail enhancement was required to be consecutive.
Durham appeals, contending he was denied due process because the court did not abide by the 180-day lid in the plea bargain in case No. SCN208988. He concludes the judgment in case No. SCN208988 must be reversed and he must be allowed to withdraw his plea in that case. Respondent concedes the point, and we agree with Durham's conclusion.
The People state: "[T]he matter [should] be remanded for resentencing on both cases so that the court can impose the agreed upon terms in each case. If the court chooses to reject the terms of either or both of the terms of the plea agreement, [Durham] should be permitted to withdraw his plea."
If, between the time of a plea agreement and the time of sentencing, factors arise that lead the sentencing court to reject a lid specified in the agreement, the court must give the defendant the opportunity to withdraw the plea. (§ 1192.5; People v. Johnson (1974) 10 Cal.3d 868; People v. Masloski (2001) 25 Cal.4th 1212, 1217 (Masloski). Here, at sentencing in May 2010, the court implicitly rejected the lid that was part of the plea bargain in case No. SCN208988 and did not give Durham an opportunity to withdraw his plea in that case. Thus, the judgment in that case must be reversed and Durham must be given the opportunity to withdraw his plea.
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 in 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 the making of 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. . . ."
In People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), the court "held . . . that a defendant who fails to appear for sentencing does not lose the protections of section 1192.5. In a footnote, [the Cruz court] added the following caveat: 'We do not mean to imply by this holding 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.' " (Masloski, supra, 25 Cal.4th at p. 1219, quoting Cruz, at p. 1254, fn. 5.) Such a waiver is commonly called a Cruz waiver.
Unlike the plea bargains in case No. SCD211768, the February 2008 plea bargain in case No. SCN208988 did not include a Cruz waiver. On April 16, approximately two and onehalf months after Durham entered his plea in case No. SCN208988, there was another hearing in that case. At the hearing, the court stated: "So you understand that if you commit a crime or you fail to appear at any of the new dates that I'm about to give you, the deal is off and you can be sentenced to the upper term in state prison on your case." Durham responded "Yes." The court characterized this as a Cruz waiver. This characterization was incorrect; the purported waiver was not part of the plea bargain on February 1 and, on April 16, the court did not advise Durham of his rights under section 1192.5. (Masloski, supra, 25 Cal.4th at pp. 12211223; Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
DISPOSITION
The judgment in case No. SCN208988 is reversed and the case is remanded to the trial court. If Durham files a motion to withdraw his guilty plea in that case within 30 days of the finality of this opinion, the court is directed to vacate the plea. If no motion is filed within the 30-day period, the court is directed to reinstate the judgment. In all other respects, the judgment is affirmed.
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HALLER, J.
WE CONCUR:
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NARES, Acting P. J.
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McDONALD, J.