Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F11051
DAVIS, Acting P.J.
Pursuant to a negotiated settlement, defendant Troy Jefferson pleaded no contest to attempting to elude a police officer by means of a high speed chase (Veh. Code, § 2800.2, subd. (a)), a felony, and driving under the influence (Veh. Code, § 23152, subd. (a)), a misdemeanor, and admitted a prior strike for robbery incurred in juvenile court when he was 16 years old. In exchange for his pleas and admission, it was agreed that several other counts would be dismissed and defendant would be sentenced to state prison for 32 months for the felony with a concurrent 180-day term for the misdemeanor. Sentencing was set for June 23, 2006.
Following the court’s acceptance of the plea agreement, a discussion occurred regarding whether defendant would remain out of custody pending sentencing. It was finally agreed that defendant would remain free from custody pending sentencing if he gave a Cruz waiver, meaning that if he failed to appear for sentencing as scheduled the court could sentence him to an increased term, which in this case was six years in state prison. Defendant agreed.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
Defendant did not appear for sentencing on June 23. On March 9, 2007, defendant, now in custody, was again before the court and was sentenced to six years in state prison.
On appeal, defendant contends (1) the Cruz waiver is unenforceable because it was not part of the plea bargain, and (2) his prior strike incurred as a juvenile may not be used to double his sentence. For reasons to follow, we agree with defendant’s first claim and shall remand with directions. This resolution renders it unnecessary to address defendant’s second contention.
Discussion
Penal Code section 1192.5 (hereafter references to undesignated sections are to the Penal Code) prohibits, inter alia, a trial court from imposing a sentence greater than that provided in a plea agreement accepted by the prosecution and the court. Cruz, supra, 44 Cal.3d 1247, held that this prohibition applied even where defendant failed to appear at sentencing. (Id. at p. 1249.) A defendant’s waiver of this protection has become known as a Cruz waiver.
In relevant part, section 1192.5 provides: “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.” (§ 1192.5, 2d & 3d par.)
In People v. Masloski (2001) 25 Cal.4th 1212 (Masloski), our Supreme Court held that a Cruz waiver may properly be made a part of a plea bargain, thereby subjecting the defendant to an increased sentence. (Id. at pp. 1214, 1223-1224.)
In People v. Casillas (1997) 60 Cal.App.4th 445, impliedly approved in Masloski, supra, 25 Cal.4th at pages 1221-1222, the court set forth the principles governing whether a Cruz waiver was part of the plea agreement: “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, at pp. 451-452.)
Because the People insist that the Cruz waiver in the present case was part of the plea agreement, we examine the plea proceedings in detail.
At the commencement of the trial readiness conference, defense counsel informed the court that a resolution of the case had been reached. Counsel explained that defendant would be pleading to the two Vehicle Code violations, he would admit the strike, that the “agreed disposition” would be 32 months, and that the matter would be continued for sentencing. The People concurred in the proposed plea agreement. The court then heard a factual basis for the pleas, repeated the proposed bargain to defendant, and advised him and obtained waivers of his Boykin/Tahl rights.
Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122.
After obtaining defendant’s no contest pleas to both Vehicle Code violations, the court stated, “And I accept and I approve of your plea on the conditions that we stated in court.” The court then asked counsel if defendant was going to be sentenced at that time and counsel replied that he wanted a probation report prepared. The court then set June 23, 2006, for sentencing.
Noting that it had neglected to obtain defendant’s admission of the strike, the court explained the strike allegation and obtained defendant’s admission to it. The court then stated: “As I’ve said, I do find you guilty based on your no contest plea. I do approve of the pleas on the conditions that we stated here in court.”
The court asked counsel why defendant should not be taken into custody “now.” Counsel explained that defendant had made all of his appearances and that he needed the time until sentencing to get his affairs in order. The prosecutor informed the court that while he had told counsel that he didn’t have a problem with defendant’s remaining free, he was concerned about this being defendant’s fourth “DUI.” When counsel continued to try to persuade the court not to take defendant into custody, the prosecutor interjected, “How about a Cruz waiver, how about a Cruz waiver?”
The court expressed its concern about defendant’s driving record and his “proclivity to run from the police” and ordered defendant remanded until sentencing. After discussing the matter further with counsel in chambers, the court informed defendant that the prosecutor had “generously agreed to allow you to remain out of custody on the condition that we call a Cruz waiver. [¶] In other words, if you don’t come back on June 23 for sentencing, . . . you will be automatically sentenced to the upper term of three years times two for six years in State prison.” Defendant stated that he so understood and agreed to the procedure. The proceedings were then concluded.
The circumstances herein are significantly similar to the circumstances in People v. Morris (1979) 97 Cal.App.3d 358 (Morris), cited with approval in People v. Cruz, supra, 44 Cal.3d at p. 1254, and implicitly approved in Masloski, supra, 25 Cal.4th at pages 1217-1218, wherein the court found a Cruz waiver was not included within the plea agreement.
In Morris, a proposed agreement was reached whereby the defendant would plead guilty to two counts of aggravated assault in exchange for the dismissal of additional counts and a promise of no state prison. (Morris, supra, 97 Cal.App.3d at p. 360 & fn. 1.) After counsel noted the court had agreed to release defendant pending sentencing, the court stated that to ensure defendant would so appear it had adopted the practice of sentencing such defendants to prison, but staying execution of the sentence until the date set for sentencing. That way, the court explained to defendant, if he showed up for sentencing he would not go to state prison, but if he did not show, a warrant would issue and he would go to prison. The defendant agreed to the arrangement, then entered his plea and was sentenced to state prison with execution stayed. (Id. at pp. 360-361 & fns. 1-3.) Defendant failed to appear as required and when later apprehended he informed the court that he wanted to withdraw his guilty plea if the court intended to send him to prison. The request was denied and defendant was remanded to serve his prison term. (Id. at pp. 361-362.)
The Court of Appeal reversed, concluding that the “sentencing-release procedure” used by the trial court was not part of the plea agreement and, therefore, the defendant was entitled to withdraw his plea under section 1192.5. (Morris, supra, 97 Cal.App.3d at pp. 363-365.)
Since Morris preceded Cruz by around nine years, the term “Cruz waiver” was not available.
There is nothing unclear about the present record. After explaining the terms of the plea agreement to defendant, the court obtained waivers of defendant’s constitutional rights, obtained his no contest plea, and stated that it was accepting the plea on the stated conditions, none of which were related to defendant’s remaining free pending sentencing. Indeed, the record strongly suggests that the first time the Cruz waiver was considered was when it was first mentioned in the record by the prosecutor, and that was after the court had expressly accepted the plea agreement. Even then, the court was initially unwilling to allow the Cruz waiver and remanded defendant into custody. It was only after further discussions in chambers with counsel and the prosecutor that the court was persuaded to accept the Cruz waiver. If anything, the circumstances herein are stronger than those of Morris because the discussion regarding the Cruz waiver occurred after the court had made clear that it had accepted the plea agreement. Consequently, we conclude that the Cruz waiver was not part of the plea agreement and defendant is entitled to withdraw from the bargain if the court refuses to abide by its terms.
Disposition
The sentence is vacated and the matter is remanded to the trial court with directions to either impose a 32-month sentence in accordance with the plea agreement or to permit defendant to withdraw his plea.
We concur: NICHOLSON, J., HULL, J.