Opinion
C085425
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS EDWARD MCKINNEY, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF05752)
Defendant Thomas Edward McKinney, Jr., pleaded no contest to felony unlawfully driving or taking a vehicle. (Veh. Code, § 10851.) The agreement provided that defendant would be released on his own recognizance (OR) until sentencing, and he would be placed on probation. But the trial court subsequently determined defendant violated the OR agreement and sentenced him to two years in county jail.
Defendant now contends the jail sentence violated his plea agreement. We conclude his contention lacks merit because he signed a plea form advising him that he could receive a higher sentence if he violated the OR agreement. Accordingly, we will affirm the judgment.
BACKGROUND
We need not recount the details of defendant's underlying crime because they are not relevant to his contention on appeal.
At the change of plea hearing, defendant's trial counsel explained there was an agreement that, among other things, defendant would be placed on probation with no immediate state prison time and he would be released on OR that day. Defendant also signed and initialed a plea form providing in pertinent part: "I understand that my 'county lid' or 'no immediate State/County Prison' (NISP) agreement is conditioned upon my obeying all laws, making an appointment to see a probation officer, keeping that appointment, and appearing in court on the date and time set by the Court for hearing on my application for probation. I understand that should I fail to do any of these things, without an acceptable excuse, that my NISP agreement will be lost and my plea(s) [and admission(s)] of guilty/no contest would remain in effect without the NISP agreement."
In signing the plea form, defendant declared under penalty of perjury under the laws of the State of California that he read, understood, and initialed each applicable item on the form, and everything on the form was true and correct. In addition, defendant affirmed at the plea hearing that he read and understood the plea form before initialing and signing it, and he reviewed the plea form carefully with his attorney. During the plea colloquy, defendant also said he understood that the maximum sentence for his crime was three years in county prison. Defense counsel said he believed his client fully understood the contents, nature, and effect of his change of plea.
The trial court set sentencing for February 16, 2017, at 9:30 a.m., and ordered defendant to go across the street to get his information packet from the probation department and to set up an interview with them. Defendant did not keep his appointment with the probation department and did not appear for the originally scheduled sentencing hearing.
Sentencing was subsequently held on August 3, 2017, with defendant and his counsel present. Before imposing sentence, the trial court stated: "The defendant entered his plea on December 22nd, 2016. He was granted a no immediate state prison agreement. As a result of his plea, he was ordered to report to probation, and he failed to report to probation as ordered. Defendant then failed to appear for his sentencing hearing on February 16th, 2017, and the warrant was eventually served on June 1st, 2017, and the sentencing hearing was then scheduled to July 6th, 2017." The trial court sentenced defendant to two years in county prison. Defendant and his counsel did not assert at sentencing that the sentence violated the plea agreement.
DISCUSSION
Defendant now contends his sentence violated the plea agreement.
Penal Code 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."
The California Supreme Court interpreted the foregoing provision in People v. Cruz (1988) 44 Cal.3d 1247, 1249. The Supreme Court emphasized that a defendant can expressly waive his right to withdraw his plea. (Id., at p. 1254, fn. 5.) "[I]f 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," provided the waiver was knowing, intelligent, and obtained at the time of the trial court's initial acceptance of the plea. (Ibid.)
A plea agreement validly can provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. (People v. Masloski (2001) 25 Cal.4th 1212, 1223-1224.) " '[W]hen 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.' [Citation.]" (Id. at p. 1222.)
Such is the case here. Clause 8 of the plea form states the no-immediate-county-prison agreement was conditioned on defendant keeping his appointment with the probation department and appearing at the scheduled sentencing hearing. Defendant informed the trial court at the plea hearing that he carefully discussed the form with counsel and understood it. But then he did not appear as ordered.
Consistent with the plea agreement, the trial court could deny probation and impose a felony sentence.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
RENNER, J.