Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C155164
Haerle, J.
I. INTRODUCTION
Pursuant to a negotiated disposition of a three-count indictment charging possession for sale of drugs and being a felon in possession of a firearm, appellant pled no contest to one count in exchange for an understanding that he would be given probation. But one of the conditions of this disposition was that appellant appear for sentencing. He did not, and at a subsequent hearing the court denied appellant’s motion to withdraw his plea and sentenced him to state prison for a term of four years. Appellant appeals, claiming a denial of his constitutional rights and requesting specific performance of the plea agreement. We disagree and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was detained, along with two other males, on 99th Avenue in Oakland on March 14, 2007. In the car in which the three had been seated, the officers found a loaded shotgun and numerous “baggies” of both cocaine and marijuana.
All further dates noted are in 2007.
On April 19, appellant was charged with possession of cocaine base for sale (count one; Health & Saf. Code, § 11351.5), possession of marijuana for sale (count two; Health & Saf. Code, § 11359), and possession of a firearm by a felon (count three; Pen. Code, § 12021, subd. (a)(1)). With respect to the first two counts, the information also alleged that appellant knew a principal was armed. (Pen. Code, § 12022, subds. (a)(1) & (d).) Finally, the information also alleged two prior drug-related convictions of appellant and a prior prison term commitment. (Health & Saf. Code, § 11370.2; Pen. Code, § 667.5, subd. (b).)
Appellant originally pled not guilty to all counts on April 20. However, on May 16, pursuant to a negotiated disposition which will be discussed in more detail below, appellant pled no contest to the first count, possession of cocaine base for sale, and admitted the armed-principal allegation. He was ordered to appear for sentencing on June 14 at 8:30 a.m. He failed to appear at that time, and the court issued a bench warrant for his arrest.
At the sentencing hearing on August 14, 2007, the court denied appellant’s efforts to withdraw his May 16 plea, and sentenced him to a four-year state prison term.
Appellant timely appealed, albeit without obtaining a certificate of probable cause.
In addition to the issue discussed below, respondent argues that we should affirm on the basis that this appeal was brought improperly because appellant did not secure a certificate of probable cause from the trial court as required by Penal Code section 1237.5, subdivision (b), in cases where the defendant has been convicted after a plea of no contest. Although we understand respondent’s point, we frankly prefer to resolve this appeal on more substantive grounds.
III. DISCUSSION
Before discussing the central issue discussed by the parties in their briefs to us, it is important to outline what happened at the May 16 hearing where appellant sought to, and was allowed to, change his plea to “no contest” as to one count. The dialogue among the court, counsel, and appellant was as follows:
“THE COURT: . . . Mr. White, I understand you want to resolve your matters today; is that correct?
“THE DEFENDANT: Yes.
“THE COURT: All right. [¶] Mr. Panetta [the prosecutor], can you please state the terms of the negotiated disposition?
“MR. PANETTA: Yes, judge. [¶] In regards to docket number 155164B, as in boy, Mr. White will be pleading either guilty or no contest to count 1, a violation of section 11351.5. [¶] He will then be admitting the enhancement under that count of section 12022(d) of the Penal Code. [¶] The remaining clauses and counts will be stricken and dismissed. [¶] As a result of this plea, he will be placed on five years of formal probation. [¶] He will be [sic] receive credit for time served as of today and be allowed -- and be O.R.’d by the court. [¶] During his probation he will observe the standard terms and conditions, which include: [¶] A four-way search clause; [¶] Registration under 11590 of the Health and Safety Code; [¶] And 296 of the Penal Code. [¶] He will pay the standard fines and fees. [¶] Furthermore, the People will be asking for a stay-away from the following areas: [¶] The six blocks on Walnut Street from 98th to 104th Avenue. [¶] The 1200 to the 1300 blocks of 99th Avenue. [¶] The 98th through 100th block of Holly Street. [¶] The People also realize that in his current probation, which I will get to, in docket number 149054 he has also been ordered to stay-away from the 9900 block of Walnut in the City of Oakland as well.
“THE COURT: Okay.
“MR. PANETTA: In regards to that docket number, 149054, the defendant would be admitting and he would be restored on probation, same terms and conditions.
“THE COURT: All right. [¶] Mr. White, this O.R., this is going to be a C.T.S. [credit for time served] with a Cruz today.
“MR. PANETTA: Thank you.
“THE COURT: And that means that so long as you go and report to probation in a timely fashion, that you cooperate in the preparation of your presentence report, that you show up here in my courtroom on time for your sentencing, and, further, that you don’t pick up any new cases while you are out, released, then this C.T.S. deal is fine. [¶] But if you do any of those things and you come back here, you are looking at eight years state prison as it relates to this docket itself. The maximum is eight years under the current disposition. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: So long as you do all the things you are supposed to do, then you are okay. [¶] If you don’t then you are looking at eight years state prison and there won’t be any problem based upon your criminal history to send you to prison. Do you understand that?
“THE DEFENDANT: Yes.”
It is first important to note what was meant by the court––albeit clearly understood by both counsel at the May 16 hearing––by its reference to “Cruz.” It meant, of course, our Supreme Court’s 1988 opinion in People v. Cruz (1988) 44 Cal.3d 1247. That decision, and the several appellate court decisions interpreting and applying it were ably summarized by our colleagues in the Fifth District in People v. Casillas (1997) 60 Cal.App.4th 445, 448-452, as follows:
“In People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), the defendant pled guilty to heroin possession under a plea bargain which provided for felony probation with up to one year local incarceration, or, at defendant’s option, a sixteen-month prison term. Released on bail, the defendant failed to appear for sentencing. Several months later, the defendant having been arrested, the trial court disapproved the plea bargain, denied the defendant’s motion to withdraw his plea, and sentenced him to prison for the two-year middle term. The Supreme Court held: ‘Penal Code section 1192.5 [section 1192.5] provides that a defendant who pleads guilty pursuant to a plea bargain which is subsequently disapproved by the trial court shall be permitted to withdraw the plea if he or she so desires. The issue before us is whether this provision applies when the trial court withdraws its approval because the defendant fails to appear for sentencing. We conclude that the statute applies even to the fleeing defendant, against whom separate sanctions are available under Penal Code sections 1320 and 1320.5.’ (Cruz, supra, at p. 1249.) [¶] Cruz disapproved People v. Santos (1985) 171 Cal.App.3d 67, which had held that a defendant’s failure to appear for sentencing forfeited his or her right either to specific enforcement of the plea bargain or to withdraw the guilty plea. (Cruz, supra, 44 Cal.3d at p. 1254.) The Supreme Court in Cruz refused to deny section 1192.5 protection to ‘defendants who plea-bargain in bad faith or “breach the bargain” through illegal acts.’ (Cruz, supra, at p. 1253.) The court said this rationale ‘errs . . . in characterizing as a “breach” of the plea bargain what is really a separate offense of failure to appear. (See [Pen. Code,] §§ 1320 and 1320.5.) [¶] The imposition of an additional or enhanced sentence for a separately chargeable offense without the benefit of a trial on that charge, and in the absence of a knowing and intelligent waiver, is clearly offensive to the principles of due process.’ [Citation.] [¶] Cruz followed several appellate opinions which held ‘that a defendant who fails to appear for sentencing under a plea bargain does not lose the protections 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. [Citations.]’ (Cruz, supra, 44 Cal.3d at p. 1250.) But the court added: ‘We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not 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.’ [Citation.]” (Casillas, supra, 60 Cal.App.4th at pp. 448-449, fns. omitted.)
Under the heading “Cruz’s antecedents,” the Casillas court then continued:
“Cruz’s antecedents comprised two distinct fact patterns. In In re Falco (1986) 176 Cal.App.3d 1161 and similar cases, no discussion of the consequences of nonappearance occurred during the plea proceedings; when the absconding defendant finally appeared for sentencing the court imposed a harsher disposition than bargained for, denying his request to withdraw his plea. [Citations.] [¶] In People v. Morris [(1979)] 97 Cal.App.3d 358 [Morris] and People v. Barrero (1985) 163 Cal.App.3d 1080, after the parties negotiated a plea bargain but before the defendant actually pled guilty, the court itself imposed a condition providing a sanction for the defendant’s nonappearance at sentencing. [Citations.] [¶] In addition to protecting a defendant’s established right to withdraw his or her guilty plea if the plea bargain is not honored, Cruz’s antecedents vindicated other important policies, including the statutory scheme for OR release, the prosecutor’s discretion to charge crimes, the defendant’s right to trial on criminal charges, and the panoply of procedural requirements for sentencing hearings. ‘While trial courts are encouraged to fashion procedural innovations, consistent with due process requirements, designed to effectively and fairly expedite the processing of criminal cases, we cannot condone unconventional techniques which clearly infringe upon a defendant’s basic rights or otherwise fetter prosecutorial discretion as are here manifested.’ [Citation.]” (Casillas, supra, 60 Cal.App.4th at p. 450.)
Under the heading of “The Vargas exception,” the Casillas court then moved to a more recent opinion which carved out an important exception to the Cruz principle: “People v. Vargas (1990) 223 Cal.App.3d 1107 [Vargas] announced this exception to the Cruz rule: ‘In a plea bargain, if the defendant agrees to a specific greater term to be imposed if he should fail to appear for sentencing, and to a specified lesser term if he does appear, may the trial court impose the greater term if he fails to appear at the sentencing hearing without justification? Our answer is that it can, and we affirm the judgment in this case.’ [Citation.] The court reasoned: ‘Here, unlike the Morris line of cases and Cruz, the trial court did not seek to repudiate the plea bargain or to impose a sentence more onerous than that which defendant had agreed to accept as part of the bargain itself. The plea bargain specified the sentence defendant was to receive: two years if he appeared at the sentencing hearing, and five years if he did not.’ [Citation.] On this basis, the court concluded that section 1192.5 simply did not apply: ‘The express agreement for a two-year term required that defendant appear for sentencing. It provided for a five-year term if he did not. The latter condition having occurred, the court was free to impose the agreed upon sentence of five years. It did no less, but no more.’ [Citation.] [¶] In People v. Murray (1995) 32 Cal.App.4th 1539, this court distinguished Vargas, articulating the critical difference between Vargas and Cruz and its antecedents. ‘In the present case, it is clear that the plea bargain itself did not contemplate a sentence higher than the four-year middle term. The court did indicate at the time of the guilty plea, separate and apart from the plea bargain, that it would consider releasing appellant from custody on the sentencing date and continue the time for sentencing; the court advised appellant he would be “subject to” a six-year upper term. At the next hearing, the court decided to release appellant pending sentencing and stated that defendant faced a maximum consecutive sentence of seven years . . . four months, if he failed to return to court as promised. The court noted appellant’s release was not part of the plea agreement to which the prosecutor was a party. [¶] Thus, there was no two-tiered plea agreement as was the case in Vargas. The record supports no other conclusion, and the trial court expressly stated that the plea bargain only provided for a four-year sentence. Accordingly, we reject respondent’s contention that sentence was imposed in the present case pursuant to the plea bargain.’ [Citation.]” (Casillas, supra, 60 Cal.App.4th at pp. 450-451.)
Finally, under the critical heading “The cases harmonized,” the Casillas court summed all this up as follows: “From these authorities, we distill the following principles. 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. [¶] In the real world, plea bargaining is a multilateral process, involving the trial court as well as the parties. In the universe of plea-bargained cases, judicial involvement may occur anywhere along a continuum, from the outset or only after the parties have reached a tentative agreement. At some point, the judge must approve the deal. This being so, to imply the bargain is in any sense complete before the judge consents to it is simply nonsensical. In plea negotiations, the distinction between the second and third situations discussed above (or between Morris and Vargas) may be subtle indeed. 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.” (Casillas, supra, 60 Cal.4th at pp. 451-452.)
It is important to note that this 1997 purported harmonization of our Supreme Court’s 1988 Cruz decision and the several subsequent Court of Appeal cases applying it––and, in the case of Vargas, ruling that there is an important exception to it––has been recently approved by our Supreme Court. In a fact situation very similar to the present one, in People v. Masloski (2001) 25 Cal.4th 1212, 1221-1224 (Masloski), that court both (1) specifically approved Casillas and (2) ruled that a Division of the Second District had erred in reversing a judgment of a Los Angeles trial court which had sentenced a defendant to prison because she failed to appear, as ordered, at the sentencing hearing after a plea agreement (including a Cruz waiver) similar to that involved here.
See also, applying Cruz and the other authority cited in both Casillas and Masloski, People v. Carr (2006) 143 Cal.App.4th 786, 789-791.
The court, in a unanimous decision authored by Chief Justice George ruled: “The trial court listed the ‘Cruz waiver’ as one of the terms of the plea agreement, and defendant clearly understood that part of the agreement was that her sentence could be increased in the event she failed to appear for sentencing. The provision of an increased sentence upon defendant’s nonappearance was part of the plea agreement, and not a ‘judicially imposed afterthought.’ [Citation.]” (Masloski, supra, 25 Cal.4th at p. 1223.)
Notwithstanding appellants’ arguments to the contrary concerning the record in this case, that principle also applies here.
In his briefs to us, appellant contends, indeed several times, that the trial court “unilaterally engrafted” and “unilaterally added” the non-appearance-at-sentencing condition on his plea agreement. This is simply incorrect, as a review of that portion of the hearing transcript quoted above confirms. After the deputy district attorney had summarized those portions of the plea agreement agreed to by the parties, the court then stated that it wished to add two additional terms, the first “a C.T.S. [credit for time served]” and “a Cruz.” Of course, the deputy district attorney understood these, and promptly agreed with a “Thank you.” Then, the court directly addressed appellant, advising him: “[T]hat means that so long as you . . . show up here in my courtroom on time for your sentencing . . . then this C.T.S. deal is fine. [¶] But if you do any of those things and you come back here, you are looking at eight years state prison as it relates to this docket itself. . . . Do you understand that?”
Appellant personally answered “Yes.” But the court reiterated the point by, again, stating: “So long as you do all the things you are supposed to do, then you are okay. [¶] If you don’t, then you are looking at eight years state prison and there won’t be any problem based on your criminal history to send you to prison. Do you understand that?” And again appellant responded “Yes.”
This was not, therefore, any sort of a “unilateral” engraftment of a condition by the court or, to quote the Casillas court, a “judicially imposed afterthought.” (Casillas, supra, 60 Cal.App.4th at p. 452.) True, the court brought up the added condition, but then took pains to, not once but twice, secure appellant’s agreement to it. And as the Casillas court made clear: “In the real world, plea bargaining is a multilateral process, involving the trial court as well as the parties. In the universe of plea-bargained cases, judicial involvement may occur anywhere along a continuum, from the outset or only after the parties have reached a tentative agreement.” (Ibid., italics added.) Exactly the latter was what happened here.
Finally regarding the holding in Casillas, appellant contends that the “second scenario discussed in” that case applies here, meaning a factual situation where the “condition regarding non-appearance was not a part of the plea agreement.” We disagree; just as our Supreme Court held in the factually very similar Masloski case, the principle applicable here is the third alternative noted in Casillas, i.e., “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.” (Casillas, supra, 60 Cal.App.4th at p. 452.) Here, “the parties”––first the deputy district attorney and then appellant himself––specifically agreed to the “Cruz waiver” and did so verbally on the record.
Appellant also contends that “the trial court never provided appellant with a statement of his rights under section 1192.5” and “never explained to appellant that he had a right to withdraw the plea if the court insisted on imposing a sentence other than the negotiated disposition of probation.” But, as both Masloski and Casillas make quite clear, where an increased term in the event of non-appearance at sentencing is part of the plea agreement, Penal Code section 1192.5 is not implicated and there is no need to extract a waiver of its provisions. (Casillas, supra, 60 Cal.App.4th at p. 453 and Masloski, supra, 25 Cal.4th at pp. 1223-1224.)
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.