Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F07891
SIMS, J.After arranging the sale of a third of a gram of marijuana to an undercover officer, defendant pled no contest to selling marijuana (Health & Saf. Code, § 11360, subd. (a)) in exchange for an agreement that he would be placed on probation for four years and serve 150 days in county jail.
On the date set for sentencing, the probation report had not been prepared, necessitating a continuance. By this time, defendant’s custody credits on the matter exceeded the agreed-upon 150-day jail sentence, and the trial court agreed to release defendant on his own recognizance subject to a Cruz waiver. The court explained to defendant that, as a condition of releasing him on his own recognizance, he would be required to agree that the court could sentence him in excess of the plea agreement if he did not return for sentencing. Against his attorney’s advice, defendant agreed, and he was released on his own recognizance.
People v. Cruz (1988) 44 Cal.3d 1247.
Defendant did not appear at the next hearing, and a bench warrant was issued for his arrest. He was arrested on the warrant 17 days later.
At defendant’s sentencing hearing, his attorney asked the trial court to impose the previously negotiated 150-day county jail sentence based on case law stating that a sentence may not be increased as a sanction for a defendant’s failure to appear “if the Cruz waiver was not a part of the negotiated disposition at the time of the initial plea.” The court found the Cruz waiver to be part of the negotiated plea and imposed 180 days in county jail as a condition of probation, rather than the negotiated jail term of 150 days.
Defendant appealed.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
After undertaking an independent examination of the record, we directed the parties to submit supplemental briefing addressing whether defendant entered a valid Cruz waiver. The parties agree that defendant’s waiver was invalid, and we concur with this conclusion. Accordingly, we shall vacate defendant’s sentence and remand the matter for resentencing.
DISCUSSION
“Under [Penal Code] section 1192.5, if a plea agreement is accepted by the prosecution and approved by the court, the defendant ‘cannot be sentenced on the plea to a punishment more severe than that specified in the plea . . . .’ The statute further provides that if the court subsequently withdraws its approval of the plea agreement, ‘the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.’” (People v. Masloski (2001) 25 Cal.4th 1212, 1217.)
In People v. Cruz, supra, 44 Cal.3d 1247, the Supreme Court held Penal Code section 1192.5 applicable where the trial court withdraws its approval of the sentence because the defendant fails to appear for sentencing. The court noted that a defendant fully advised of his rights under section 1192.5 could 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.” (Id. at p. 1254, fn. 5.) However, “[a]ny such waiver . . . 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.” (Ibid.)
Here, defendant’s agreement that the trial court could sentence him in excess of the terms of his negotiated plea if he failed to appear at sentencing occurred three weeks after he entered his plea. Thus, it is beyond dispute that this agreement was not made “at the time of the trial court’s initial acceptance of the plea.” (People v. Cruz, supra, 44 Cal.3d at 1254, fn. 5.) Nor was the waiver knowing and voluntary, as defendant was not advised that, in its absence, he would be entitled to withdraw his plea if the court was unwilling to follow the terms of the plea agreement.
As defendant did not enter a valid Cruz waiver, the matter must be remanded for resentencing. The People concur with this disposition.
DISPOSITION
The sentence is vacated and the matter is remanded with directions to the trial court to either sentence defendant in accordance with the plea agreement or allow him to withdraw his plea.
We concur: SCOTLAND, P. J., BUTZ, J.