Opinion
F060925 Super. Ct. No. BF125879A
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLARD WADE WILSON, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, William K. Kim, and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, William K. Kim, and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Willard Wade Wilson, pled guilty to grand theft (Pen. Code, § 487, subd. (a)) and admitted eight prior prison term enhancements. (§ 667.5, subd. (b).) On appeal, Wilson contends: 1) the court violated the terms of his plea bargain; and 2) he is entitled to additional custody credit. We find merit to the second contention and modify the judgment accordingly. In all other respects, we affirm.
All further statutory references are to the Penal Code.
FACTS
In November and December 2008, Wilson cashed approximately 20 checks he stole from Francies Electric, Inc., in Bakersfield, in amounts totaling $2,493.81.
On March 12, 2009, the district attorney filed an information charging Wilson with grand theft (count 1), forgery of a check (count 2/§ 470, subd. (d)), and eight prior prison term enhancements.
On August 7, 2009, Wilson entered his plea in this matter as part of a negotiated disposition that included a Cruz waiver and the dismissal of the forgery count. The Cruz waiver provided, "If defendant appears on scheduled sentencing date, sentence will be 3 years prison if restitution has been paid in full; if restitution not paid in full, sentence to be 4 years; if defendant fails to appear on scheduled sentencing date, could receive as much as 11 years prison." (Italics added.)
People v. Cruz (1988) 44 Cal.3d 1247.
During the change of plea proceedings, the court described the Cruz waiver as follows: "Okay. And if he appears on the scheduled sentencing date, sentence will be three years, if restitution has been paid in full. If restitution is not paid in full, the sentence will be four years. And if he fails to appear on the scheduled sentencing date, he could receive as much as 11 years in prison."
Later, the court explained the following to Wilson, "That's what it will be. If it is not paid in full, it will be four years. And if you don't show up for your sentencing date, you're exposed to the total exposure of 11 years...."
On October 1, 2009, Wilson appeared in court. The court, however, continued his sentencing hearing to December 3, 2009, because Wilson failed to report to the probation department.
On December 3, 2009, Wilson failed to appear and defense counsel presented an unsigned letter from a doctor at Matthias Rath Institute which stated that Wilson was deceased. The court then revoked Wilson's release on his own recognizance, issued a bench warrant, and continued the matter for a week to allow the prosecutor to obtain a death certificate for Wilson.
On April 15, 2010, Wilson was taken back into custody.
On May 17, 2010, Wilson appeared in court. Defense counsel apologized on Wilson's behalf for Wilson's failure to appear for sentencing on December 3, 2009. According to defense counsel, Wilson's failure to appear resulted from the Hodgkin's lymphoma Wilson was suffering from, which purportedly affected his ability to recall things like court dates. Defense counsel asked the court to sentence Wilson in accord with his original plea agreement.
Since Wilson did not pay any restitution to the victim prior to being sentenced, his plea bargain would have required the court to sentence him to a four-year term if he complied with the terms of his Cruz waiver.
The prosecutor responded that the court should sentence Wilson pursuant to the terms of the Cruz waiver. Defense counsel replied that Wilson's Cruz waiver provided for a sentence of up to 11 years, not a stipulated sentence of 11 years as stated in Wilson's probation report. After the court reviewed the terms of Wilson's Cruz waiver and commented on how it had tried to accommodate Wilson's need for medical attention, the court sentenced him to an aggregate term of 11 years, the aggravated term of three years on his grand theft conviction and eight consecutive one-year prior prison term enhancements. Neither Wilson nor defense counsel, however, claimed that Wilson fulfilled the terms of his Cruz waiver by showing up on October 1, 2009, the day he was originally scheduled to be sentenced.
Defense counsel was apparently referring to the following statement in Wilson's probation report: "The defendant to serve no more than three years in prison or four years, if the defendant fails to pay restitution before sentencing or eleven years in prison if he fails to appear for sentencing (People v. Cruz)."
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On May 21, 2010, defense counsel filed a motion to recall the sentence asking the court to resentence Wilson to an aggregate term of 10 years by resentencing to the middle term of two years on his grand theft conviction, instead of the aggravated three-year term.
On July 8, 2010, at a hearing on the motion, the court recalled Wilson's sentence and resentenced him to an aggregate term of 10 years, the middle term of two years on Wilson's grand theft conviction and eight one-year prior prison term enhancements. Defense counsel did not argue in the motion to recall Wilson's sentence or at the hearing on the motion that Wilson complied with the terms of his Cruz waiver by appearing at the October 1, 2009, hearing.
DISCUSSION
The Alleged Violation of his Plea Bargain
Wilson contends that it is clear from the court's oral recitation of the terms of his Cruz wavier that the parties intended that his Cruz waiver was to remain in effect only until he appeared for sentencing on October 1, 2009. He further contends that since he appeared for sentencing on that date, he is entitled to the four-year term specified in his plea agreement, which was to be imposed if he did not make restitution to the victim. Thus, according to Wilson, the court violated his plea bargain when it sentenced him to a ten-year term. Respondent contends that this issue is not cognizable on appeal because Wilson did not obtain a certificate of probable cause and, in any event, the court properly sentenced Wilson pursuant to his Cruz waiver. We will find that a certificate of probable cause was not required to raise this issue and that the court did not violate the terms of Wilson's Cruz waiver.
Appellant was not Required to Obtain a Certificate of Probable Cause
"Under section 1237.5, a defendant must obtain a certificate of probable cause to appeal from a judgment entered on a guilty plea unless the appeal falls within an exception. In this regard, a defendant need not comply with section 1237.5 if the appeal is based on '[g]rounds that arose after entry of the plea and do not affect the plea's validity.' [Citation.] Under this exception, compliance with section 1237.5 is not required if the defendant asserts 'issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.' [Citation.]
"This exception has been interpreted to include claims involving alleged violations of the plea agreement. In People v. Kaanehe (1977) 19 Cal.3d 1 ..., for example, the prosecutor agreed in exchange for defendant's guilty plea to relinquish his right to make a sentencing recommendation at the time of sentencing. On appeal, the defendant claimed the prosecutor breached the plea agreement when he mailed a letter to the court arguing the defendant should not be granted probation. [Citation.] The defendant also argued the trial court erred when it then refused to allow him to withdraw his guilty plea. [Citation.] Our Supreme Court concluded compliance with section 1237.5 was not required because 'the alleged breach of the plea bargain by the prosecutor occurred after entry of the plea and because it pertains only to sentencing.' [Citation.]" (People v. Rabanales (2008) 168 Cal.App.4th 494, 500.)
Here, Wilson alleges that a violation of the plea bargain by the court occurred after the entry of his plea and that the alleged violation pertains only to sentencing. Therefore, Wilson was not required to obtain a certificate of probable cause to raise this issue on appeal.
The Court did not Violate Wilson's Plea Bargain
"When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.
""'[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." [Citation.] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.' [Citations.]" (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Wilson's Cruz waiver did not specify any date as Wilson's "scheduled sentencing date" or otherwise limit his sentencing date to October 1, 2009. Instead, it simply provided that Wilson would appear "on [his] scheduled sentencing date." Therefore, once Wilson's sentencing date was continued to December 3, 2009, that date became Wilson's scheduled sentencing date for purposes of his Cruz waiver. Further, since Wilson failed to appear at his "scheduled sentencing date," albeit his rescheduled sentencing date, he violated the terms of his Cruz waiver, which allowed the court, pursuant to Wilson's plea bargain, to impose a maximum term of 11 years.
Moreover, even if we concluded that Wilson's Cruz waiver was ambiguous with respect to whether the parties intended it to continue in effect after October 1, 2009, we would nevertheless conclude that Wilson violated its terms.
"[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. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] 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.]" (People v. Shelton (2006) 37 Cal.4th 759, 767, italics added.)
At Wilson's May 17, 2010, sentencing hearing, when the court asked defense counsel to comment on sentencing, he did not assert that Wilson had complied with the terms of his Cruz waiver by appearing on October 1, 2009. Instead, counsel challenged the probation report's assertion that Wilson's Cruz waiver provided for a stipulated 11-year term if Wilson violated the terms of the waiver, he attributed Wilson's failure to appear at his December 3, 2009, sentencing hearing to Wilson's medical condition, and he asked the court to consider imposing the "original negotiated disposition." Further, in the motion to recall Wilson's sentence defense counsel did not argue that the court was limited to imposing a maximum, aggregate term of four years because Wilson complied with the terms of his Cruz waiver by appearing at the October 1, 2009, sentencing hearing. Instead, he argued only that the court should reduce Wilson's aggregate sentence from 11 years to 10 years.
Additionally, when the court continued the October 1, 2009, sentencing hearing, it allowed Wilson to remain out of custody on his own recognizance and did not require him to execute an additional Cruz waiver. It is clear from these circumstances that the parties contemplated that Wilson's Cruz waiver would remain in effect until the date that Wilson was actually sentenced. (Cf. People v. Vargas (2007) 148 Cal.App.4th 644, 649 [court allowing defendant to remain on bond without requiring additional Cruz waivers at continued sentencing hearing evinced intent by parties that the Cruz waiver was effective until defendant was actually sentenced].) Accordingly, since Wilson violated the terms of his Cruz waiver, we reject his contention that the court violated the terms of his plea bargain when it imposed a 10-year aggregate term.
Wilson is Entitled to an Additional 52 Days of Actual Custody Credit
At his sentencing hearing on May 17, 2010, the court awarded Wilson 556 days of presentence custody credit consisting of 278 days of presentence actual custody credit and 278 days of presentence conduct credit. On July 8, 2010, when the court resentenced Wilson to an aggregate 10-year term, the court did not award appellant any actual custody credit for the additional 52 days he spent in custody between his original date of sentencing and the date he was resentenced. Wilson contends that the court erred by its failure to award him any additional actual custody credit for this period of time. Respondent concedes and we agree.
A trial court's recall of sentence does not change a defendant's postsentence status. Therefore, Wilson is not entitled to presentence conduct credits under section 4019 for time served between the original sentencing date and the resentencing date, even while temporarily confined in local custody to attend the resentencing hearing. (People v. Johnson (2004) 32 Cal.4th 260, 263.) However, the court must recalculate and credit against the modified sentence all actual time the defendant has already served through the date of resentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 37.) Accordingly, we conclude that the trial court erred in resentencing Wilson by its failure to award him actual custody credit for the 52 days he spent in custody between May 17, 2010, and July 8, 2010.
DISPOSITION
Wilson's award of actual custody credit is increased from 278 days to 330 days (278 days + 52 days = 330 days). The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.