(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.
A Cruz waiver is permitted as long as it is entered in a knowing and voluntary fashion. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; see People v. Vargas (2007) 148 Cal.App.4th 644, 649 (Vargas); People v. Mosby (2004) 33 Cal.4th 353, 361 [waiver of statutory rights must be voluntary and intelligent].) A trial court must find that a defendant's failure to appear was willful by a preponderance of the evidence.
( Id. at pp. 1220-1221.) Likewise, in a case entitled People v. Vargas (2007) 148 Cal.App.4th 644 [ 55 Cal.Rptr.3d 837], the defendant did not obtain a certificate of probable cause, and we addressed and rejected the defendant's argument that the trial court violated and unilaterally modified the terms of his plea agreement. ( Id. at pp. 651-652.)
” Appellant replied, “Yes, sir.” This arrangement is commonly referred to as a “‘Cruz waiver’” (see People v. Masloski (2001) 25 Cal.4th 1212, 1222; People v. Vargas (2007) 148 Cal.App.4th 644, 646), based upon footnote 5 in People v. Cruz (1988) 44 Cal.3d 1247, 1254 (Cruz). There the Supreme Court stated that “a defendant fully advised of his or her rights under [Penal Code] 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.”
The facts in this case mirror those in People v. Vargas (2007) 148 Cal.App.4th 644 (Vargas). There, the defendant signed a written plea agreement containing a Cruz waiver that permitted the court to impose any sentence up to the maximum if the defendant committed other crimes or failed to return for sentencing.
Such a waiver is permitted as long as the defendant knowingly and voluntarily agrees to that waiver. (Cruz, at p. 1254, fn. 5; People v. Vargas (2007) 148 Cal.App.4th 644, 649-650 (Vargas); People v. Mosby (2004) 33 Cal.4th 353, 365 (Mosby) [waiver of state statutory right to jury trial on prior conviction must be knowing and voluntary].) The waiver of statutory rights must be " ' "a voluntary and intelligent choice among the alternative courses of action open to the defendant.
With respect to his claims regarding the on-bail enhancement, we note that "[w]hen the issue on appeal challenges the defendant's sentence following a guilty plea or plea of nolo contendere, the determining factor in deciding whether the issue arose before entry of the plea such that a certificate of probable cause is required is whether the plea agreement specifies a particular sentence or whether it specifies a sentence range." (People v. Vargas (2007) 148 Cal.App.4th 644, 651; People v. Williams (2007) 156 Cal.App.4th 898, 910-911.) " '[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause."
"When the issue on appeal challenges the defendant's sentence following a guilty plea or plea of nolo contendre, the determining factor in deciding whether the issue arose before entry of the plea such that a certificate of probable cause is required is whether the plea agreement specifies a particular sentence or whether it specifies a sentence range." (People v. Vargas (2007) 148 Cal.App.4th 644, 651 (Vargas).) Appellant's challenge to the length of his sentence is based on his argument that the gang enhancement was not proven.
In other words, if the defendant agreed to a specific sentence as part of his plea agreement the sentence is an issue that arose before entry of the guilty plea, and in order to challenge that sentence on appeal, the defendant must obtain a certificate of probable cause.” (People v. Vargas (2007) 148 Cal.App.4th 644, 651-652.) Defendant agreed to the eight year upper term sentence as part of his plea agreement, but failed to obtain, as he was required to do by Penal Code section 1237.5 and California Rules of Court, rule 8.304(b), a certificate of probable cause with respect to his claim that the trial court abused its discretion in imposing the upper term sentence.
Apart from Cruz, defendant’s jury trial argument rests on cases involving plea forms where Cruz and Vargas waivers are set forth at length and defendants acknowledge among other things that “any willful violation of these terms [exposing the defendant to greater punishment] will be decided by the sentencing judge without a jury and by a preponderance of the evidence.” (E. g., People v. Rabanales (2008) 168 Cal.App.4th 494, 505 (Rabanales); People v. Vargas (2007) 148 Cal.App.4th 644, 652 (Vargas II).) While some language in these cases suggests the existence of a jury trial right on the willfulness issue, the statements were made in the course of rejecting defense arguments for a jury trial.