From Casetext: Smarter Legal Research

People v. Palmer

Court of Appeal of California
Apr 22, 2009
No. B208694 (Cal. Ct. App. Apr. 22, 2009)

Opinion

No. B208694

4-22-2009

THE PEOPLE, Plaintiff and Respondent, v. WANDA PALMER, Defendant and Appellant.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.

Not to be Published in the Official Reports


Wanda Palmer appeals the judgment and sentence following her no contest plea to petty theft with a prior (Pen. Code, § 666). In accordance with the plea agreement, Palmer was sentenced to three years in state prison after she failed to appear at the sentencing hearing. Had she appeared as promised, she would have received a 16-month sentence. She contends the trial court erred in imposing the upper term without finding whether she had good cause for failing to appear at the scheduled hearing or willfully failed to appear. We affirm.

All further undesignated statutory references are to the Penal Code.

FACTS AND PROCEDURAL HISTORY

On March 16, 2007, Palmer was charged with one count of petty theft with a prior and one count of giving false information to a police officer (§ 148.9, subd. (a)). On April 11, 2007, she pled no contest to the theft. Pursuant to her plea, the parties agreed that Palmer would be sentenced to one year four months if she appeared at the sentencing hearing on June 21, 2007, yet would receive the upper term of three years if she failed to appear on that date. The prosecution agreed to postpone the sentencing hearing in order to give Palmer sufficient time to have and recover from back surgery.

At the plea hearing, defense counsel stated, "[w]ere going to have her coming back on June 21st for P and S and surrender. Its a six-week recovery period, give or take, for surgery." After noting that Palmer had "a fairly unreliable record of appearance in the past," the court provided her the following admonishment: "All I can conclude is the district attorney is willing to release you because hes figuring youre not going to come back and youre going to end up doing three years. I would suggest to you then, maam, you take care of your business, whatever it is, to get your operation, and that you come back; otherwise youre looking at three years in state prison." The court also informed Palmer, "the district attorney, who is going to take your plea, is also going to take whats called a Cruz waiver and that waiver is going to be a clear indication to you that if you do not return on the date that is set, that upon your being taken into custody in the future, you will not be able to withdraw your plea and essentially youll be sentenced to the maximum penalty allowed by law, which is three years in state prison." Palmer expressed her understanding of the agreement. The court subsequently reiterated this advisement, and Palmer again stated that she understood the terms of the agreement. After Palmer entered her plea, the court cautioned her yet again: "So this record is now replete with all kinds of warnings to you. [¶] If you do not come back on June 21st, . . . that would render you in violation of this agreement for [the] low term and then you could be sentenced to the upper term of three years."

People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).

Palmer failed to appear on June 21, 2007. The court reporter did not transcribe the hearing. The minute order provides, however, that Palmers attorney informed the court that Palmer "is currently in the hospital." A no-bail bench warrant was issued and held until the next scheduled hearing on July 31, 2007, and Palmer was ordered "to submit documents as to the reason she was unable to appear."

On July 31, 2007, Palmers attorney notified the court "that he has had telephonic contact with the defendant who indicates that she has had a second back surgery." Counsels motion to hold the bench warrant for an additional two weeks was denied. Palmers attorney was ordered "to provide proof of whether surgery was necessary or elective." The matter was continued again until August 7, 2007.

At the hearing on August 7, 2007, Palmer still was not present in court. Her attorney stated that she was "currently hospitalized." Regarding the courts order to provide proof whether Palmers surgery was necessary or elective, counsel represented that he "does not know that information at this time."

On April 2, 2008, the matter was called for a bench warrant hearing. Palmer appeared in court, but fell ill when her case was called and was taken out of court by paramedics. When the matter was called again two days later, Palmer was not present. The minute order indicated that "defendant was present in the courtroom mid morning and did not return after the lunch recess." The bench warrant remained outstanding.

Palmer finally appeared in court with counsel on April 7, 2008. Her attorney informed the court that he had been in "constant contact" with her since he had taken over the case in July 2007. Counsel stated: "Ive asked her to provide me and this court with medical paperwork, which she did, she has actually supplied me with information to confirm her medical conditions. Shes had two surgeries since the time she was before the court. Up until January she had been in severe pain. Actually, shes still in some degree of pain. [¶] Its no question that she suffers this medical problem. However, she was advised by the court that the disposition would be 16 months if she returned. She did fail to return. [¶] Now the court has the option of two years or three years." While counsel acknowledged "the recent history in which she has come to court and failed to remain in court," he urged the court "to consider some mitigation since there were medical conditions and possibly consider less than the three years that the court had proposed or indicated." The prosecution responded that the court had no discretion to impose a lesser sentence under the circumstances, and urged the court "to sentence her pursuant to the plea agreement which was three years in state prison."

The court sentenced Palmer to three years in accordance with the plea agreement, stating as follows: "Defendant has a long history of theft, fraud, mainly theft. And this court certainly tried to indulge her by giving her time to take care of her medical problems and shes had that time and she knew this warrant was out. [¶] And while she may have made some attempt to communicate with you [defense counsel], you had no control over your client. [¶] When she did show up, she came and left that same day with the paramedics. Shes back and forth in court. Shed had ample time to take care of her medical problems. But its kind of like a bond and a word of honor and reliance and the court is relying on her word, gives her time to take care of her affairs, and then having done so she fails to keep her part of the bargain. [¶] Now, quite frankly, I agree with the district attorney, part of the bargain was if she doesnt come back, she knows shes got to be looking at three years . . . . That was part of the plea negotiation. And it wasnt simply a Cruz waiver but part of the very plea that she agreed to. [¶] And so its this courts view that whether you view it as a violation of the Cruz waiver or whether you view it as part of the plea negotiation or both, she did not keep her part and therefore this court is sentencing her to the upper term, three years, in state prison."

DISCUSSION

Palmer contends that the court erred in sentencing her to the upper term of three years without finding whether her failure to appear at the June 21, 2007, sentencing hearing was either "willful" or without "good cause." We conclude otherwise.

Palmer contends that her failure to appear had to be "willful" under Cruz, while it had to be without "good cause" under People v. Vargas (1990) 223 Cal.App.3d 1107. Cruz does not apply where, as here, the plea agreement expressly provides for an increased sentence where the defendant fails to appear. (See People v. Masloski (2001) 25 Cal.4th 1212, 1222-1224.) Moreover, the record plainly supports the finding that Palmers failure to appear was without good cause.

The record belies Palmers claim that the court imposed "strict liability" for her failure to appear. The first time she failed to appear, the court ordered her attorney "to submit documents as to the reason she was unable to appear." The second time, the court demanded proof that her surgery was necessary and not elective. No such evidence was ever presented, however. While Palmer presented proof that she notified her attorney she was admitted to the hospital on June 18 and underwent surgery on July 30, the whole point of postponing sentencing was to allow her sufficient time to undergo surgery and recover therefrom. When she entered her plea, her attorney indicated that this would take about six weeks; the plea agreement gave her ten. Palmers evidence indicates that she was admitted to the hospital three days before the sentencing hearing. She offered no explanation whatsoever for the delay, nor did she ever establish medical necessity. Indeed, her attorney effectively conceded that she did not have a legitimate reason for failing to appear as promised and never argued otherwise. Under the circumstances, the court could infer that Palmers failure to appear on June 21 was unjustified.

Palmers subsequent behavior provides further support for the conclusion that she lacked good cause for failing to appear. According to her offer of proof, she was in the hospital from July 30, 2007, until August 31, 2007, and thereafter spent nine weeks at home with a back infection. She did not appear in court, however, until April 2, 2008, and then "fell ill" just as her case was about to be called. Two days later, she appeared in court in the morning and then left before her case was called without notifying the court. The court also referred to the fact that Palmer had a history of failing to appear, and concluded that the district attorney had only agreed to release her "because hes figuring youre not going to come back and youre going to end up doing three years." This evidence, considered in conjunction with Palmers failure to offer any evidence that she had to be in the hospital on June 21, 2007, plainly supports the finding that her failure to appear was without good cause. Accordingly, the court did not err in enforcing Palmers plea bargain by sentencing her to the upper term of three years.

The judgment is affirmed.

We concur:

GILBERT, P.J.

YEGAN, J.


Summaries of

People v. Palmer

Court of Appeal of California
Apr 22, 2009
No. B208694 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Palmer

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WANDA PALMER, Defendant and…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

No. B208694 (Cal. Ct. App. Apr. 22, 2009)