Opinion
A128846
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. NORAY ROBINSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C162670)
Defendant Noray Robinson appeals a judgment entered upon his plea of no contest to committing a lewd act on a child. (Pen. Code. § 288, subd. (c)(1).) He contends the trial court erred in denying his motion to withdraw his plea. We affirm.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged in count one with rape of an unconscious person (§ 261, subd. (a)(4)), and in count two with committing a lewd act on a 14-year-old who was more than ten years younger than he was (§ 288, subd. (c)(1)). The complaint included six prior conviction and three prior prison term allegations. (§ 667.5, subd. (b).)
The facts underlying the offenses are not pertinent to the issues on appeal, and we will not recite them here.
Defendant pled no contest to count two on December 23, 2009. Under the plea agreement, he would be placed on five years' probation, with a maximum jail term of 12 months. Count one was dismissed, and the priors were stricken. Defendant was released on his own recognizance pursuant to a Cruz waiver, which conditioned the promised sentence in part on defendant's appearance at sentencing, and he stated that he understood he must appear at the sentencing hearing. (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).)
The plea form defendant signed said: "I understand that the terms of any plea agreement are not binding on the sentencing judge, who may be a different judge than the one who accepts my plea of guilty or no contest. If the Court rejects the plea agreement, however, I will have the right to withdraw my plea." However, it also provided: "I agree that if I fail to report to the Probation Department as directed, or if I commit a new crime between now and the sentencing date, or if I fail to appear in court on the date and time set for sentencing, any promises made to me at the time of my plea will be withdrawn, but I will not have the right to withdraw my plea, even if the court imposes a different sentence than I was promised."(Italics added.)
A sentencing hearing took place on February 23, 2010. The trial court began to sentence defendant, and defendant asked to have sentencing put over, saying he had not expected to be taken into custody immediately. The trial court noted that defendant had entered into the plea with the understanding that he might serve a year in jail, and defense counsel asked the court to consider a later time for execution of sentence. The court continued that it was "going to sentence [defendant] to 10 months in the county jail," and calculated custody credits. The court then asked defendant when he wanted to come back to execute sentence, and agreed to defendant's request for three weeks, until March 16, 2010. The court told defendant, "You are out on a Cruz waiver. . . . The [] things you do have to do, come back to court right day, right time, right place. March 16, 2010, 8:30 in the morning. The other thing is you have to be of good conduct and obey all laws. If you violate either of those provisions I have the option of sending you to state prison. Do you understand that?" Defendant replied, "Sir, yes, sir." The clerk's minutes and attached conditions of probation indicate that imposition of sentence was suspended and five years' formal probation granted, and that the matter was continued to March 16, 2010.
Defendant failed to appear for the continued sentencing hearing, and he was taken into custody.
Defendant moved to withdraw his plea, contending, as relevant here, that he did not receive the sentence he bargained for and that he did not waive his right to withdraw his plea by failing to appear at sentencing. The trial court denied the motion and sentenced defendant to the two-year midterm in prison.
II. DISCUSSION
Defendant makes two related contentions: that his Cruz waiver was no longer in effect when he failed to appear, because the trial court had already sentenced him, and that he did not make a knowing and intelligent waiver of his rights under section 1192.5 for the period after the February 23, 2010 hearing.
Section 1192.5 provides that, with certain exceptions, a plea of guilty or no contest to a felony may specify the punishment; that where the plea is accepted by the prosecutor and approved by the court, the defendant cannot be sentenced to a greater punishment than that specified by the plea; and that if the court withdraws its approval in light of further consideration, the defendant may withdraw his or her plea. In Cruz, our Supreme Court concluded that "a defendant who fails to appear for sentencing under a plea bargain does not lose the protection of section 1192.5, and must be allowed to withdraw his or her guilty plea should the court refuse to adhere to the original sentencing terms." (Cruz, supra, 44 Cal.3d at p. 1250.) Nevertheless, a defendant who has been fully advised of his or her rights under section 1192.5 may "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. Any such waiver, of course, 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." (Id. at p. 1254, fn. 5.)
An exception to the Cruz rule was announced in People v. Vargas (1990) 223 Cal.App.3d 1107. As part of a plea bargain, the defendant there had agreed that he would receive one term if he appeared for sentencing, and a greater term if he did not. (Id. at p. 1109.) He failed to appear for sentencing, and was sentenced to the greater term. (Id. at pp. 1110-1111.) The Court of Appeal affirmed, reasoning that the sentence was consistent with the defendant's reasonable expectations and with what he had agreed to. (Id. at p. 1113; see also People v. Masloski (2001) 25 Cal.4th 1212, 1214 [plea agreement may provide for increased sentence in event defendant fails to appear for sentencing].)
Such an agreement is known as a "Vargas waiver." (See People v. Puente (2008) 165 Cal.App.4th 1143, 1145, fn. 2 (Puente).)
The court in People v. Vargas (2007) 148 Cal.App.4th 644 (Vargas II)also considered the scope of a Cruz waiver. The defendant there had entered into a plea agreement. (Id. at p. 646.) On the preprinted change of plea form was standard language stating that as part of the plea agreement, the defendant waived his right to withdraw his plea and not to receive any additional punishment for any new offense or failure to appear. (Id. at p. 648.) On the change of plea form was the handwritten notation " 'Cruz waiver until 9/19/05,' " the date originally set for the defendant's sentencing. (Id. at p. 647.) The defendant appeared on that date, but the sentencing hearing was continued several times; sentencing finally took place on January 13, 2006. In the interim, the defendant committed another crime. Treating that crime as a violation of the Cruz waiver, the trial court imposed a sentence greater than that specified in the plea agreement. (Id. at pp. 646-647.) The defendant contended on appeal the Cruz waiver was effective only until September 19, 2005. (Id. at p. 647.)
The Court of Appeal affirmed the judgment. In doing so, it applied contract principles, noting that " '[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, '[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.' [Citations.]" [Citation.] "The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]" [Citations.]' [Citation.]" (Vargas II, supra, 148 Cal.App.4th at pp. 647-648.) Applying these principles, the court concluded the parties intended the Cruz waiver to remain in effect until the defendant was actually sentenced, and that did not occur until after he committed the robbery. Despite the handwritten notation specifying the initial sentencing date, the preprinted form provided that the waiver would remain in effect until he was sentenced, the trial court reiterated when taking the plea that the defendant would receive a greater sentence if he violated the law before sentencing, and the defendant remained free on his own recognizance without the requirement of a new Cruz waiver. (Id. at pp. 648-649.) "In short," concluded the court, "it is apparent from the terms set out in the change of plea form, the circumstances surrounding the negotiation of the plea agreement, and the subsequent conduct of the parties that the parties intended the Cruz waiver to remain in effect until defendant actually was sentenced in this case." (Id. at p. 649.)
The court in People v. Casillas (1997) 60 Cal.App.4th 445, 451-452 (Casillas)derived the following principles from the Cruz line of cases: "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." The court in Casillas went on: "In the real world, plea bargaining is a multilateral process, involving the trial court as well as the parties. . . . The ultimate question will be not whether the bargain occurred in a hermetically sealed environment from which the judge was excluded, but whether the return provision resulted from the give-and-take of plea bargaining or was a judicially imposed afterthought." (Id. at p. 452, fn. omitted.)
Defendant contends the trial court sentenced him on February 23, 2010, and that his Cruz waiver was in effect only until that date. Based on the circumstances of this case, we reject defendant's contention. As explained in Vargas II, in interpreting a plea agreement, our task is to determine the intent of the parties. (Vargas II, supra, 148 Cal.App.4th at pp. 647-648; see also People v. Shelton (2006) 37 Cal.4th 759, 767.) We may look to the parties' conduct to determine how long they intended the Cruz waiver to remain in effect. (Vargas II, supra, 148 Cal.App.4th at p. 649.) Here, the parties' conduct, including defendant's, indicates they intended the waiver to remain valid after the February 23 hearing, until sentence was executed at the continued hearing on March 16, 2010. The Cruz waiver was part of the initial agreement presented to the trial court. Defendant asked to have the sentencing hearing continued in order to allow him more time before being taken into custody, and the court put the matter over for execution of sentence at his request. In doing so, the court reminded him, "You are out on a Cruz waiver," and discussed the condition he had fulfilled—reporting to the Probation Department—and those that remained to be fulfilled—returning to court at the right time and obeying all laws. Moreover, the purpose of the Cruz waiver, to ensure that defendant would return to court to accept the consequences of his plea, continued until sentence was executed. In the circumstances, we agree that the intent of the parties was that the Cruz waiver remain in effect until the continued hearing at which sentence would be executed.
In rejecting defendant's request to withdraw his plea, the court described what had happened on February 23 as follows: "[B]efore we were able to complete that sentencing Mr. Robinson asked to have his time out of custody extended," and indicated that at defendant's request it had "put the sentencing over for execution."
People v. Ibanez (1999) 76 Cal.App.4th 537 (Ibanez), on which defendant relies, does not persuade us otherwise. The issue before the court there was whether an order granting the defendant's petition for a writ of error coram nobis to vacate judgment and withdraw his plea of guilty was an appealable order after judgment within the meaning of section 1238. (Id. at pp. 540, 542-544.) The court answered that question in the affirmative, noting that an order after judgment within the meaning of that statute was one rendered after the imposition of sentence, and that the trial court had orally pronounced sentence, though it allowed the defendant to remain free on bail temporarily to get his affairs in order. (Id. at p. 543.) The question before us is different—it is whether the parties intended the Cruz waiver to remain in effect until execution of sentence.
In dictum, the court in Ibanez stated that the Cruz line of cases was inapposite "because, unlike those cases where sentence was not imposed but put over to another date [citations], sentence was imposed in this case." (Ibanez, supra, 76 Cal.App.4th at p. 544, fn. 11.) This language does not persuade us that a Cruz waiver cannot remain in effect until a defendant has appeared as agreed for execution of sentence.
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Nor does Puente assist defendant. As pertinent here, the question before the court was whether the defendant needed a certificate of probable cause to contend on appeal that the trial court deprived him of due process when it found he had violated the terms of his Vargas waiver. (Puente, supra, 165 Cal.App.4th at pp. 1145, 1149-1152.) Nothing in Puente suggests that a Cruz waiver may not continue after the trial court has placed a defendant on probation but continued the hearing to allow defendant additional time before execution of sentence.
Defendant also argues that he did not make a knowing and intelligent waiver of his rights under section 1192.5, because the original waiver was intended to be in effect only until sentencing. We have already concluded that the parties intended the Cruz waiver to remain in effect pending the March 16, 2010, continued hearing. Accordingly, we reject this contention.
III. DISPOSITION
The judgment is affirmed.
RIVERA, J. We concur:
REARDON, Acting P.J.
SEPULVEDA, J.