Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA033038, Christopher G. Estes, Judge.
John P. Dwyer, 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,
Chung L. Mar, Kenneth N. Sokoler and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P.J.
Ronald A. Taylor appeals following the trial court’s denial of his motion to withdraw his plea pursuant to Penal Code section 1192.5, after the trial court imposed a sentence of 10 years instead of the initially bargained-for 6-year sentence. He contests the validity of his plea, the denial of a jury trial regarding the conditions used to impose the higher sentence pursuant to a so-called Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5), and the trial court’s constitutional authority after Cunningham v. California (2007) ___U.S.-___ 127 S.Ct. 856 (Cunningham), to impose an upper term absent a jury determination of the factual basis for the upper term. We shall affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code. Section 1192.5 provides in part that a plea to many crimes “may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it.” Moreover, “[w]here 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.” Furthermore, if the court approves of the plea, it shall inform the defendant of its right to withdraw the plea, in which case “the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”
PROCEDURAL HISTORY
Appellant was initially charged in count one with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a).) A prior robbery conviction from August 1994 was alleged pursuant to sections 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). An amended felony complaint in case MA033038, which we at times refer to as the “current case,” added count two, sale/transportation/offer to sell cocaine (base) pursuant to Health & Safety Code section 11352, subdivision (a).
Plea -- October 7, 2005
When appellant appeared on October 7, 2005, he first asked if the 32 month sentence offered at arraignment was still available or if the offer was now six years and if the court would be willing to do a Cruz waiver (People v. Cruz, supra, 44 Cal.3d 1247, 1254, fn. 5 (Cruz).) The prosecution stated the offer was now six years and objected to the Cruz waiver. After deciding that appellant’s exposure was ten years (two times the high term), the court agreed to a Cruz waiver with a plea to take the six year offer, double the low term. Appellant was advised of his rights and pleaded nolo contendere to count two, admitting the prior conviction, with the understanding that a motion to dismiss count one would be submitted at the time of sentencing.
Before the plea, the prosecutor specifically informed him the agreement “is that you will plead to one felony charge for low term three years’ state prison which will be doubled after you admit your prior strike conviction, and also the judge has agreed to allow you out O.R. today on what we call a Cruz waiver. [¶] What you need to know, sir, is that while you are out, if you fail to show for your sentencing date or if you go ahead and pick up new criminal offenses, you’re basically looking at 10 years in state prison. The six years will no longer be an offer that will be available to you.” He was also told that if he was already on probation or parole, this plea may be a violation that could subject him to more time in custody. Appellant stated he understood that and other conditions.
Counsel asked if appellant was eligible for Proposition 36 treatment, but the court stated he was not eligible “when there is a sales charge.”
The court told appellant he was being released on his own recognizance pursuant to a plea waiver on certain conditions, including “no new offenses,” do not use or possess drugs or paraphernalia, “stay away from places where users or sellers congregate. [¶] Don’t associate with persons known to be narcotic users or sellers . . . . [¶] . . . [¶] [a]ppear timely for sentencing,” and submit to search and seizure with or without a warrant. The court dismissed a citation and a marijuana case, conditioned on the continuing validity of the plea just taken.
Appellant failed to appear on October 31, 2005, the date set for sentencing. A bench warrant was issued and appellant appeared later that day, so the bench warrant was recalled. Appellant’s request for a continuance was granted and the parties stipulated to Commissioner Murphy for sentencing. The Cruz waiver continued with specified conditions, including no new arrests or convictions, no use or possession of drugs or paraphernalia, no association with drugs users or sellers, and so forth. Appellant remained out on his own recognizance.
Alleged violation of Cruz waiver
On November 7, 2005, before Commissioner Murphy, the matter was continued to December 2 for sentencing. On December 2, 2005, the matter was again continued, for sentencing and to be heard with case MA033750, which arose from appellant’s arrest on November 16. Appellant was remanded. The matter was continued two more times. Appellant’s motion to withdraw his plea was denied, and Judge Estes sentenced him to ten years in prison on January 25, 2006, a 5-year upper term as the base term for count two doubled because of the prior conviction. The People announced unable to proceed on MA033750, and that matter was dismissed.
On January 10, 2006, appellant told the court that he thought he qualified for Proposition 36 and then was “hit” with the amended charge, with an offer of 32 months, then six years, and subsequently ten years. The court had read the transcript of the plea and stated “It looks very clear to me as to how this case transpired in terms of his plea and his admission.” Appellant also complained that he is a user, not a dealer, and he did not “even know if they had a search warrant” but is being sentenced to ten years “for getting high.” In light of the exposure and the new case, the court appointed counsel to speak to appellant to see if there were any legal grounds for withdrawal of his plea. The conduct of that appointed counsel is one of the grounds raised for reversal on appeal.
The attorney appointed to determine the viability of a request to set aside the previously entered plea stated he had reviewed the files and discussed it with appellant, concluding he could not indicate to the court that there is any merit in the motion to set aside his previously entered pleas.
On February 2, 2006, the court reviewed the October 7 plea and questioned whether the arrest report in the MA033750 case was sufficient to find appellant was in violation of the Cruz waiver. The prosecutor stated that the case could be unwound and the MA033750 case refiled if appellant wanted to withdraw his plea and the ten years imposed, with significant possible consequences to appellant. In light of all the conditions, defense counsel urged the court to consider imposing a lesser sentence.
The court believed the plea was valid and the Cruz waiver was negotiated between the parties with the assistance of the court so it was not going to set aside the plea. However, it agreed to “recall the sentencing”, indicating a ten year sentence but giving defense counsel time to research whether the court is required to hear something above and beyond what it had already indicated is the basis of the Cruz waiver.
On February 10, 2006, the court stated appellant was entitled to a hearing to determine whether he was in violation of the Cruz waiver. The court gave appellant options, either stipulating to a Cruz waiver violation and accepting the 10-year sentence, or reinstatement of MA033750 (the new case)and proceeding with a preliminary hearing on that matter with the instant case continuing to trial. Counsel informed appellant of possible consequences if he did not stipulate to a violation of the Cruz waiver and take the ten years. Appellant decided he wanted a preliminary hearing on the new case and he wanted to withdraw his plea, saying he had new grounds to withdraw the plea. The court refused to address the motion to withdraw the plea, which had previously been heard, and set aside the dismissal in the new case on February 10, 2006. The current case was to trail the new one.
The charges in case MA033750, which we at times refer to as the “new case,” included Health & Safety Code section 11366, maintaining a place for selling or using controlled substances; Health & Safety Code section 11351.5, possession for sale of cocaine base; Health and Safety Code section 11378, possession for sale of a controlled substance; and Health and Safety Code section 11359, possession of marijuana for sale, count 4 involved a codefendant only. There were other allegations including that the crimes were committed for the benefit of a criminal street gang.
The prosecutor added for the record: “although I feel like I’m being a sap, if I end up putting on [the arresting officer in the new case] and the court is satisfied with the violation, I’ll still make the offer of the ten years on the first case and dismiss the new one.”
The attorney representing appellant on the new case accepted an appointment on the current case as well. That attorney was appointed to represent appellant on February 17, 2006, at which time appellant indicated he would like to retain private counsel on the new case. The prosecution terminated the offer of ten years and dismissing the new case, and the matter was continued for sentencing and a preliminary hearing on the new case until March 13, 2006.
Appellant failed to appear on that date, but appeared on March 14, 2006, at which time the court granted his request to represent himself. The following day, the court released counsel and gave pertinent documents to appellant. Appellant filed a handwritten motion to withdraw his plea on March 28, 2006. He relied on “exculpatory evidence” that at the time of arrest he actually had a valid driver’s license, so the basis for probable cause to arrest him was missing.
The prosecutor represented that the deputy knew appellant was on a Cruz waiver and appellant committed felonies in the deputies’ presence.
Preliminary hearing on new case; Vargas hearing on Cruz waiver
On March 30, 2006, the court conducted the preliminary hearing on the new case as well as issues in the current case, including violation of the Cruz waiver, sentencing, and appellant’s motion to withdraw his plea. For both the preliminary hearing and the Vargas hearing (People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas)), the arresting deputy testified he had arrested appellant before, had been told appellant was selling cocaine, and was aware of appellant’s Cruz waiver status on November 16, 2005. Observing appellant’s apartment with binoculars while standing on a shopping cart in the sheriff’s station parking lot, the deputy saw two separate hand to hand transfers. His partner went to locate a woman who had taken something and put it in her mouth after seeing appellant. The recipient of the second exchange was stopped and had rock cocaine in his mouth. When the occupants of another vehicle went inside appellant’s apartment, the deputies proceeded on an arrest warrant based on violation of his Cruz waiver. A woman who ran toward the bedroom had six bags of marijuana at her feet. She admitted she possessed the marijuana for sale. Methamphetamine and marijuana were in a bag in the living room. Methamphetamine was also found in the bathroom. No cocaine was found in the house.
The deputy stated he was in court when appellant was placed on the Cruz waiver.
They were arrested with a similar bag. The deputy opined appellant possessed the marijuana and methamphetamine for sale.
After waiving his Miranda rights, appellant first denied selling cocaine from the location; his excuse was that he was in the bedroom with his friend Marissa smoking methamphetamine. Appellant also stated the pipe and baggy of methamphetamine were his. When told of the surveillance, he changed his story and said he had talked to some people at the door. Appellant had $1,153 in currency. Appellant argued that there was no warrant for his arrest.
Rather than testify himself, appellant argued his case. While arguing he did not have cocaine and denying any drug transactions, appellant admitted using methamphetamine and having several bags of crystal meth in his residence. He also maintained that the prior prison strike was too remote to apply.
Regarding the motion to withdraw his plea, appellant argued that he had a valid driver’s license when pulled over on the instant offense and was eligible for Proposition 36, but his attorney said he did not qualify, which led to his plea. The prosecution replied appellant was not arrested for being an unlicensed driver but was stopped because the vehicle he was in was not registered and he did not have a license in his possession. According to the report, the events of the arrest “were based on a plain-view observation of the suspicious circumstances of the defendant’s person and controlled substances were found after they were retrieved from a piece of plastic sticking out of the defendant’s shoe.” Appellant was given the information as part of discovery.
Trial court’s decisions
The court set out the chronology of the plea and subsequent proceedings and denied appellant’s motion to withdraw his plea. The People again stated that the new case would be dismissed upon sentencing on the Cruz waiver violation. The court found there was “sufficient evidence” to find appellant in violation of the condition set forth in the plea transcript. Appellant objected that he was entitled to a jury trial on the new case and, if he beat that offense, he would not be in violation of the Cruz waiver; he asked to take the new case to trial. The court stated appellant would be entitled to a jury trial on the new case, if the People did not dismiss it, but not if the People exercised their right to dismiss that case. Moreover, as the prosecution noted, appellant admitted in open court behavior that was a violation of the Cruz waiver. Based on the testimony of the deputy, the court found violation of the Cruz conditions; the court added that appellant’s own admissions and statements “go to one of the terms and conditions . . . .”
Having read the probation report dated October 7, 2005, and the plea transcript, after the Vargas hearing the court found the factors in aggravation outweighed the factors in mitigation and sentenced appellant to ten years in state prison, the upper term of five years as to count 2, doubled, “that in particular being one of the terms and conditions of the original plea and pursuant to the Cruz waiver violation.” The People then moved to dismiss the charges in the new case based on the continuing validity of the plea in the instant case.
Appellant filed a notice of appeal based on the sentence, the validity of the plea, and the allegedly illegal sentence on the strike prior. Further, in his request for a certificate of probable cause, which was granted, appellant contested the denial of his right to a jury trial in case MA033750, a trial that he contended would have shown he was not in violation of the Cruz waiver.
CONTENTIONS ON APPEAL
Appellant contends: 1. The trial court erred in denying his motion to withdraw his no contest plea under section 1192.5 in that the Vargas exception did not apply and appellant did not knowingly and intelligently waive his right under section 1192.5 to withdraw his no contest plea. 2. The court rather than a jury determined that appellant violated any release conditions, without a valid knowing, intelligent and express waiver of his right to jury. 3. Pursuant to Cunningham, supra, ___U.S.-___ 127 S.Ct. 856, the trial court violated the Sixth Amendment by imposing an upper term sentence based solely on its own determination of the facts so, if the court reaches this issue, the abstract of judgment should be amended to reflect a middle-term sentence. 4. The conviction must be vacated because the trial court’s procedure completely denied appellant legal representation at a critical stage of the proceedings pursuant to In re Prescott (2007) 149 Cal.App.4th 243, and the error was reversible per se.
On June 13, 2007, our Supreme Court ordered that In re Prescott, supra, not be published.
DISCUSSION
1. The trial court did not err in denying appellant’s motion to withdraw his no contest plea under section 1192.5.
As appellant argues, section 1192.5 recognizes the right of a defendant to withdraw a plea where the court withdraws its approval to a plea bargain in light of further consideration. (People v. Cruz, supra 44 Cal.3d 1247, 1250.) There is a recognized exception to the rule where the condition that triggers a higher sentence is part of the plea bargain itself and not a condition later added by the court. (People v. Vargas, supra, 223 Cal.App.3d 1107, 1112-1113.) Courts have examined the conditions of the plea bargain and have enforced defendant’s right to withdraw the plea where the trial court added a condition that was not a reasonable expectation of the defendant or attorney. (People v. Jensen (1992) 4 Cal.App.4th 978, 983.)
The case at bench is like Vargas and unlike Jensen. We have reviewed the transcript of appellant’s plea. Appellant agreed he would be sentenced to six years if he complied with the conditions allowing his release before sentencing and ten years if he did not.
Moreover, the Vargas court, supra, 223 Cal.App.3d 1107, 1113, rejected a requirement that there must be an advisement about section 1192.5 in the plea bargain colloquy that would give defendant a right to withdraw his plea, an argument made by appellant. As Justice Epstein wrote for Division Four in Vargas, supra, that issue is a red herring where, as in Vargas, People v. Jackson (1980) 103 Ca.App.3d 635, 638, and the case at bench, there was an express agreement to a greater term where the trial court did not add a condition but merely followed the express agreement embodied in the plea bargain.
2. There is no right to a jury trial regarding violation of a Cruz waiver; the court properly determined that appellant violated any release conditions.
Appellant next argues that he was entitled to a jury determination whether he violated his release conditions. The trial court agreed he was entitled to an evidentiary hearing on the issue and conducted that hearing simultaneously with the preliminary hearing on the new case with which appellant was charged.
We note that the usual condition relevant to the Cruz/Vargas issue is an agreement to appear in court, an issue not nearly as potentially factually conflicting as conditions relating to drug use, avoiding users, and so forth.
Respondent first argues that appellant waived the issue of any right to a jury trial on the new charges in that he first asked for a jury trial after the trial court found he had violated the conditions of his Cruz waiver. Furthermore, respondent argues appellant was not entitled to a jury trial on these issues and any error was not prejudicial given appellant’s admission in court that he had been using methamphetamine and was associating with those using drugs, conditions violating his own recognizance release.
Assuming arguendo the issue was timely raised, we conclude the analogy to a probation revocation hearing is apt. There is no right to a jury trial in a probation revocation hearing (People v. Dale (1973) 36 Cal.App.3d 191, 195; accord Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60), which serves a purpose similar to the hearing regarding violation of own recognizance releases. “The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty. (See, e.g., People v. Hayko (1970) 7 Cal.App.3d 604, 610, [86 Cal.Rptr. 726].)” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.)
We understand appellant’s argument that the prosecution can effectively “avoid the inconvenience of a jury trial on new criminal allegations” by imposing additional punishment following a Cruz waiver without having defendant waive his right to a jury trial on the new criminal allegations. The same is often true in probation revocation hearings. The own recognizance release is a benefit defendants receive with a Cruz waiver; they may be sentenced immediately to the lower term but choose to receive the benefit of release on their own recognizance; a jury trial is not contemplated to determine violation of the release provisions. A jury trial would be required, absent waiver, if the People had decided to proceed to trial on the new case.
We conclude there is no right to a jury trial in these circumstances. The failure to obtain a jury waiver for the own recognizance release conditions is therefore not error.
3. The trial court did not violate Cunningham v. California (2007) ___U.S.-___ 127 S.Ct. 856, by imposing an upper term sentence without a jury determination of the facts.
In his first supplemental brief, appellant argues that Cunningham, supra, precludes imposition of an upper term sentence based on the trial court’s determination of the facts. Respondent argues that the issue was waived for failure to raise it in the trial court. Cunningham had not yet been decided and California courts were bound by our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238, at the time of sentencing in the case at bench. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Respondent notes that United States Supreme Court had granted a petition for writ of certiorari in Cunningham on April 18, 2005, almost a year before his sentencing on March 30, 2006.
“Cunningham concluded that the DSL violates a defendant’s right to jury trial because ‘under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, --- U.S. at p. ----, 127 S.Ct. at pp. 863-864.)” (People v. Black (2007) 41 Cal.4th 799, 809.)
Appellant did not waive this issue by failing to raise it in the trial court. As our Supreme Court held in People v. Sandoval (2007) 41 Cal.4th 825, 837, footnote 4, there was no forfeiture and the issue could be raised on appeal: “Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request.”
Appellant accepted a negotiated plea bargain for a specified term that allowed him to be released on his own recognizance and avoid a potentially harsher sentence. (People v. Hester (2000) 22 Cal.4th 290, 295; see People v. Buttram (2003) 30 Cal.4th 773, 785-787.) He received the benefit of dismissal of other charges and the opportunity to remain out of custody pending sentencing. The downside of the agreement was made very clear to appellant at the time of the plea. In these circumstances, we conclude he cannot now raise any Cunningham issue which might otherwise have existed. (See People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Buttram, supra, 30 Cal.4th 773, 783; accord People v. Vargas (2007) 148 Cal.App.4th 644, 648.)
4. The trial court’s procedure did not deny appellant legal representation at a critical stage of the proceedings.
Appellant in his supplemental reply brief acknowledges the depublication of In re Prescott, supra, formerly 149 Cal.App.4th 243, but contends the reasoning regarding denial of legal representation is nevertheless valid. The argument is that counsel who was appointed to represent appellant in reviewing his motion to withdraw the plea abdicated his responsibility to his client, revealed attorney-client communications, and otherwise represented the court’s interests rather than those of appellant.
When appellant appeared on January 10, 2006, he was then represented by different attorneys on the new and current cases. The prosecutor offered to dismiss the new case upon appellant’s being sentenced to ten years. Appellant replied, “I reject. [¶] Sir, I have a problem with this.” The court responded that appellant hasn’t “any say over whether or not I give you ten years,” but did allow appellant, as he wished, to be heard on the issue of his plea. Appellant’s counsel on the current case stated he had a conflict because of the motion to withdraw and requested a different attorney for that purpose. Counsel also thought a lawyer should be speaking to appellant before the court questioned him on the motion to withdraw. The court stated “my understanding of the law works a little differently. There has to be an expression from your client that he’s seeking to withdraw the plea.”
Asked if he had anything he wanted to add, appellant stated he was offered 32 months and was under the impression it would going up to ten years if he did not take six years that day. Appellant also told the court “I had plenty of paraphernalia, they know I was using drugs and here I’m going to prison for six years for getting high? And they want me to take 10 years at 80 percent for getting high?”
Because of the new case and the exposure to significant time in prison, the court decided to appoint counsel and told appellant “I’m going to appoint a lawyer to speak to you to see if you have any grounds, legal grounds, to withdraw your plea. I don’t see it right now but I’ll let the lawyer have an opportunity to speak to you.”
When appellant and the appointed counsel appeared on January 25, 2006, counsel stated “I have reviewed the amended felony complaint, the police reports underlying the original case . . ., the probation report, the court’s minute orders throughout, the plea transcript, which I obtained copy of. In addition, coincidentally and fortuitously I ran into [counsel on the new case] and was able also to pick up from him the felony complaint, all of the police reports, and have a pretty good understanding of what’s going on now in the new case.” Moreover, he discussed it “to some degree” with appellant and “cannot indicate to this court that there is any merit in the motion to set aside his previously entered plea. I reviewed the transcript fully. He was a participant, not only attended that, but a participant in all the waivers that were taken . . . .
He saw his situation as “incumbent upon me . . . to indicate to the court that there’s a meritorious purpose behind the motion to withdraw the plea and it is not a case of buyer’s remorse.” After his review of the plea, he concluded “there is no merit to running a motion to set aside the plea . . . .” Counsel continued: “The fact that he had a subsequent arrest is what brings him before the court in a violation of the Cruz waiver, and that’s unfortunate but he was admonished of that, he was warned of that.” He added that appellant “was [thoroughly] advised of all that on the 7th of October and he agreed with it, and I have no bases thereon to run a motion to withdraw his previously entered plea.”
Appointed counsel in the case at bench did not reveal confidential communications but in substance informed the court he reviewed the matter, talked to appellant, and could find no grounds on which to argue the plea should be withdrawn. Although some of his comments could have been left unsaid, there was no denial of appellant’s right to counsel from counsel’s comments.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.