Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. PCF176149, Glade F. Roper, Judge.
Sandra T. Uribe, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
Appellant, Steven Wayne Johnson, pled no contest to possession of stolen property (Pen. Code, § 496, subd. (a)).
On June 19, 2007, the court sentenced Johnson to the mitigated term of 16 months.
On appeal, Johnson contends the court violated the terms of his plea bargain. We will reverse.
FACTS
On December 28, 2006, a Porterville police officer arrested Johnson after finding him in possession of several DVD’s that had been stolen from Blockbuster Video. Johnson admitted to the arresting officer that he entered the store intending to steal the DVD’s.
On January 2, 2007, the district attorney filed a complaint charging Johnson with one count each of commercial burglary (Pen. Code, § 459) and possession of stolen property.
On January 9, 2007, the court conducted a change of plea hearing simultaneously for several defendants including Johnson. Prior to accepting the defendants’ pleas, the court advised them of the consequences of their plea and their constitutional rights and took appropriate waivers. In announcing the terms of Johnson’s plea bargain the court stated, “If you are convicted of these offenses, Mr. Johnson is going to get probation and 90 days in custody and he will have to pay restitution. If you violate probation, you could go to state prison up to three years.”
After Johnson entered his no contest plea and the court took several other defendants’ pleas, one of the other defendants requested to be released on his own recognizance before he started serving the prison term the court imposed. The court granted the other defendant’s request and the following colloquy then occurred:
“[DEFENSE COUNSEL]: Your Honor, Mr. Johnson had a similar request. His indicated was 90 days. I don’t believe he has any past record.
“THE COURT: How long have you been in custody?
“DEFENDANT JOHNSON: Twelve Days. [¶]…[¶]
“THE COURT: You’ve been in jail how long?
“DEFENDANT JOHNSON: The 26th. December 28th, [12] or 13 days now.
“THE COURT: All right. If I release you and you don’t return to court, that means you want to go to state prison. You will not get 90 days as I indicated. You will go to state prison. If you won’t come back when I tell you to, there is no point in putting you on probation. Do you understand that?
“DEFENDANT JOHNSON: Yes, sir.
“THE COURT: And do you agree to that?
“DEFENDANT JOHNSON: Yes, sir.
“THE COURT: All right. Then you are released on your own recognizance. You are to be back February 6th[,] [2007], at 8:30.”
Johnson failed to appear in court on February 6, 2007. The following day the court issued an arrest warrant for him.
On April 16, 2007, Johnson was in court for arraignment on a charge of failing to appear.
On June 19, 2007, the court sentenced Johnson to the mitigated term of 16 months.
DISCUSSION
Johnson contends the court violated the terms of his plea bargain when it sentenced him to a 16-month prison term instead of placing him on probation. Respondent contends the trial court did not violate Johnson’s plea agreement when it sentenced him to prison because the agreement that he would return to court on a specified date or face a prison term was negotiated as part of his plea bargain. Respondent further contends that Johnson’s claim is not cognizable on appeal because it challenges the validity of his plea and he did not obtain a certificate of probable cause. We agree with Johnson.
A defendant may waive the right to be sentenced pursuant to his plea agreement. (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.) A defendant may “expressly” waive his or her rights under Penal Code 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.” (People v. Cruz, supra, 44 Cal.3d at p.1254, fn. 5.) In People v. Masloski (2001) 25 Cal.4th 1212 a unanimous court approved the so-called Cruz waiver. (Id. 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. When a defendant fails to appear at a sentencing hearing where there has been no prior discussion or agreement as to the sanction for nonappearance, the defendant is entitled to withdraw his or her plea. (People v. Masloski, supra, 25 Cal.4th at pp. 1221-1222; People v. Casillas (1997) 60 Cal.App.4th 445, 451-452.) Thus, a defendant can expressly agree to a greater sentence for nonappearance to the sentencing hearing as long as the defendant’s waiver is part of the plea bargain itself. (People v. Masloski, supra, 25 Cal.4th at pp. 1221-1222; People v. Casillas, supra, 60 Cal.App.4th at pp. 451-452; see also People v. Vargas (1990) 223 Cal.App.3d 1107, 1113.)
In People v. Casillas, supra, 60 Cal.App.4th 445, this court summarized this area of law as follows: “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.” (Id. at pp. 451-452, italics added.)
The distinction between the second and third situations, we explained, turns on whether the nonappearance condition “resulted from the give-and-take of plea bargaining or was a judicially imposed afterthought.” (People v. Casillas, supra, 60 Cal.App.4th. at p. 452, fn. omitted.)
Here, when the court recited the terms of Johnson’s plea bargain on the record, it did not include any conditions relating to Johnson being released. Further, a release for Johnson was not discussed until after the court had gone over plea bargains with several other defendants and one of the defendants asked to be released on his own recognizance. Thus, we conclude that the court’s nonappearance sanction was negotiated by the court as an afterthought and not as part of Johnson’s plea bargain. (Cf. People v. Jensen (1992) 4 Cal.App.4th 978, 984.)
“‘[Moreover,] a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause. [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766.) However, a certificate of probable cause is not required when the defendant alleges that the court violated the terms of his plea bargain as Johnson alleges here. (People v. Delles (1968) 69 Cal.2d 906, 909.) Accordingly, we also reject respondent’s contention that Johnson’s claim is not cognizable on appeal because he did not obtain a certificate of probable cause.
DISPOSITION
The judgment is reversed. The case is remanded to the trial court with directions: (1) to permit appellant to withdraw his plea should the sentencing court choose to impose a sentence in excess of the plea agreement; or (2) to resentence appellant according to the terms of the original plea bargain.