Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR507305
Kline, P.J.
Daniel Thomas Lucero (appellant) was convicted, pursuant to a plea agreement, of grand theft and second-degree burglary. On appeal, he contends he was denied his right to due process when the trial court failed to hold a hearing to determine whether he had violated the terms of his Cruz waiver. We shall affirm the judgment.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
PROCEDURAL BACKGROUND
Appellant was charged by felony complaint with two counts of commercial burglary (Pen. Code, § 459–counts I and V); two counts of receiving stolen property (§ 496, subd. (a)–counts II and VI); one count of grand theft (§ 487, subd. (a)–count III); two counts of forgery (§ 470, subd. (d)–counts IV and VII); one count of making a criminal threat (§ 422–count VIII); and one count of unlawful use of personal information (§ 530.5, subd. (a)–count IX).
All further statutory references are to the Penal Code unless otherwise indicated.
On November 6, 2007, appellant pleaded no contest to grand theft and second-degree burglary.
On August 18, 2008, the trial court sentenced appellant to three years eight months in prison.
On August 20, 2008, appellant filed a notice of appeal.
Because the underlying facts are not relevant to appellant’s contentions on appeal, they will not be set forth in this opinion.
DISCUSSION
Appellant contends he was denied his right to due process when the trial court failed to hold a hearing to determine whether he had violated the terms of his Cruz waiver.
Trial Court Background
On November 6, 2007, appellant requested that his bail be lowered from $50,000 to $30,000, so that he could visit his dying father. The prosecutor then offered to lower appellant’s bail to $15,000 with the understanding that “if he doesn’t appear at sentencing or he gets in any other kind of trouble, any new law violations, that the indicated sentence is off, he won’t be able to withdraw his plea and that the court will be free to sentence him to the aggravated term and a consecutive term. So the 3 years, 8 months maximum sentence would be the likely sentence he receives.” When the court asked if he understood, appellant said “yes.”
The court and appellant thereafter had the following exchange:
“THE COURT: You heard the agreements that were made that the court would follow the probation recommendation if it’s not for California Department of Corrections. [¶] If it is for California Department of Corrections, that then the top term I would give you would be the mid-term.
“THE DEFENDANT: I understand.
“THE COURT: However,... I am going to reduce the bail to $15,000. If you do not show up when you’re supposed to with your appointment for the probation department
“THE DEFENDANT: I will.
“THE COURT: -for your next appearance in court, then all agreements are off. You could not withdraw your plea and the court probably would sentence you to the aggravated term, plus consecutive.
“THE DEFENDANT: I understand that.
“THE COURT: Which I believe would be 3 years, 8 months.
“THE DEFENDANT: I understand, your Honor. Thank you.
“THE COURT: Any questions about any of that?
“THE DEFENDANT: No, Sir.”
Appellant then entered his two no contest pleas and the court reduced his bail to $15,000.
In the change of plea form, also signed and filed on November 6, 2007, the box next to “Indicated Sentence” was checked, and the typed statement said, “I understand that, although the Court has indicated a sentence, there is no agreement with the District Attorney’s Office and the Court will not decide what my sentence will be until it has read and considered a report from the probation office,” followed by a handwritten note, “Will grant probation if probation recommends. Otherwise, mid term top.”
The boxes next to “Open Plea” and “Negotiated Disposition pursuant to PC 1192.5” were not checked.
Appellant failed to appear for a probation appointment scheduled for December 13, 2007. The probation department’s subsequent efforts to reach him were unsuccessful and, as of December 20, 2007, he had made no effort to reschedule the appointment. At the January 3, 2008 sentencing hearing, appellant stated that he had been at the hospital with his dying father on the date of his appointment. The court then rescheduled the hearing for February 6, after appellant affirmed that he would appear on that date.
On January 30, 2008, the probation department submitted a report to the court in which it recommended that probation be denied and that appellant be sentenced to an upper consecutive term of three years eight months.
Appellant failed to appear for sentencing on February 6, 2008, and the court ordered his bail forfeited and issued a bench warrant for his arrest. Appellant was arrested in San Francisco on February 28, 2008 for various drug offenses, but was later removed to Sonoma County after making a speedy trial demand pursuant to section 1381.
On May 2, 2008, the trial court referred the matter for a supplemental probation report “to address any subsequent criminality [appellant] suffered since the last report and to address the reason for the failure to appear.” Then, on June 26, 2008, the trial court ordered a psychological evaluation for appellant, pursuant to section 1170.9, in light of his claim that he was a military veteran suffering from post traumatic stress disorder (PTSD).
The supplemental probation report noted that appellant had failed to appear for sentencing on February 6, 2008, and that he had claimed “he was hospitalized at the time and therefore was unable to appear in Sonoma County. Attempts to verify this information through the Public Defender [had] been unsuccessful.”
At the August 18, 2008 sentencing hearing, the trial court declined to place appellant on probation so that he could get treatment related to his psychological issues. The court noted that appellant had previously suffered “[s]ixteen felony convictions and then he committed crime in San Francisco while out on bail violating Cruz, and then didn’t report for sentencing.” Appellant offered a statement at the hearing, saying, inter alia, “Your Honor,.... [y]ou can see that I went in intensive care while I missed court....” The court then sentenced appellant to three years eight months in prison.
The original probation report included a handwritten note, which stated: “D violated Cruz waiver-failed to report to probation, failed to appear for sentence, was arrested in [San Francisco] on new case and admitted a VOP. 14 prior felonies-multiple strikes... 3 y 8 mos.”
Appellant had submitted to the court a copy of a hospital discharge summary stating that he had left the hospital against medical advice on February 4, 2008. The court date appellant missed was on February 6, 2008. He also submitted an undated handwritten letter to counsel in which he described his ill health in early February 2008, and stated that he “was in no condition to walk anywhere.”
Legal Analysis
As a preliminary matter, the parties both aver, and we agree, that it was not necessary for appellant to obtain a certificate of probable cause prior to filing this appeal because he “ ‘is not attempting to challenge the validity of his plea of [no contest] but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining... the penalty to be imposed.’ ” (People v. Johnson (2009) 47 Cal.4th 668, 677; accord, People v. Rabanales (2008) 168 Cal.App.4th 494, 501; compare People v. Puente (2008) 165 Cal.App.4th 1143, 1149-1151 [where defendant’s claim on appeal was that trial court had failed to follow certain procedures related to his violating plea agreement, but plea agreement had waived right to those procedures, defendant was attacking validity of plea agreement and a certificate of probable cause was required].)
“A ‘Cruz waiver’ gives a trial court the power to ‘withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term,’ if the defendant willfully fails to appear for sentencing.” (People v. Puente, supra, 165 Cal.App.4th at p. 1146, fn. 3, quoting Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
In Cruz, supra, 44 Cal.3d at page 1254, footnote 5, our Supreme Court explained that “a defendant 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.”
Here, respondent claims that, although the trial court, the probation department, and counsel used the term “Cruz waiver” in discussing appellant’s plea, Cruz was not applicable here because the written change of plea form actually described the sentence as an “indicated sentence” rather than a “negotiated disposition.” (Compare Cruz, supra, 44 Cal.3d at p. 1254, fn. 5 [a defendant may waive rights under section 1192.5, which would permit court to “impose a sentence in excess of the bargained-for term”], italics added.) We need not definitively decide whether the present case involves a Cruz waiver because, as we shall explain, even assuming he is correct that it does, appellant’s claim still cannot succeed.
Appellant claims the trial court was required to hold a hearing to determine whether his failure to appear for sentencing on February 6, 2008 was “willful” before sentencing him to the higher term pursuant to his Cruz waiver. (See People v. Puente, supra, 165 Cal.App.4th at p. 1146, fn. 3.) He acknowledges that there is no case authority for this proposition, but likens a Cruz waiver to a Vargas waiver, pursuant to which a defendant agrees in a plea bargain to be sentenced to a specific lower term if he or she appears for sentencing and a specific higher term if he or she fails to appear for sentencing. (See People v. Puente, at p. 1145, fn. 2.) Appellant claims that a defendant who allegedly has violated the terms of either a Cruz or Vargas waiver is entitled to a hearing on the alleged violation. (Cf. People v. Carr (2006) 143 Cal.App.4th 786, 790-792 [in case involving violation of terms of Vargas waiver, there was no violation of due process where defendant had ample notice and opportunity to be heard].)
People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).
We conclude that any such hearing requirement was satisfied in the present case. Appellant had prior notice both of the terms of the waiver as well as the alleged violations, which were discussed in previous court hearings at which he and/or his counsel were present, and in the supplemental probation report prepared for the sentencing hearing. The issue was also raised at the sentencing hearing itself, at which appellant, who was represented by counsel, had the opportunity to address the court and submit evidence related to his failure to appear, both of which he did. Accordingly, since appellant was given both notice and the opportunity to be heard on this question, his claim that his due process rights were violated is without merit. (Cf. People v. Carr, supra, 143 Cal.App.4th at pp. 791-792.)
Specifically, appellant told the court, inter alia, “You can see that I went in intensive care while I missed court.” Both parties note that appellant also submitted a copy of a hospital discharge summary stating that he had left the hospital against medical advice on February 4, 2008, and a letter to counsel in which he described his ill health in early February 2008, and stated that he “was in no condition to walk anywhere.”
Appellant presents no authority to support his implicit claim that combining the hearing on his failure to appear with the sentencing hearing was somehow insufficient.
Appellant also argues that the trial court improperly failed to state, on the record, that it had considered the evidence appellant submitted and that it had found, by a preponderance of the evidence, that appellant’s failure to appear was “willful.” However, again assuming that this case did involve a Cruz waiver and that a finding of willfulness was therefore required, appellant ignores the general rule of appellate review that “a lower court judgment is presumed correct, and when a lower court has made no specific findings of fact, it is presumed that the court made such implied findings as will support the judgment. [Citations.]” (Hall v. Municipal Court (1974) 10 Cal.3d 641, 643.)
Here, the record reflects that the trial court was aware of the issue before it regarding appellant’s prior failure to appear for sentencing as well as his arguments and evidence intended to persuade the trial court that the failure to appear was not willful. That the court did not explicitly state its conclusion on the record before sentencing appellant does not undermine its implicit finding that appellant’s failure to appear was willful. (Cf. People v. Carr, supra, 143 Cal.App.4th at p. 792 [“[n]othing in the Vargas line of cases requires the court to make a detailed, written statement of reasons for finding defendant in violation of his Vargas waiver”].) Appellant asserts that the rule that the reviewing court “must assume that the trial court made the requisite finding... would hold true if appellant had a meaningful opportunity to present his evidence and explain his reasoning, but that did not happen in this case.” As we have explained, appellant did have such a “meaningful opportunity.”
We also observe that this finding was reasonable in light of the evidence presented. Appellant’s argument and evidence that his failure to appear on February 6, 2008 was not willful consisted of his claim that he was hospitalized at the time of the hearing. The medical records he submitted, however, reflected that he was discharged against medical advice on February 4, 2008, two days before the hearing. Yet he nonetheless both failed to appear and neglected to inform the court in a timely manner of the alleged reason for his absence.
For these reasons, appellant’s claim that the court violated his right to due process cannot succeed.
In light of our conclusion that appellant’s due process rights were not violated in connection with the court’s determination that he violated the terms of his Cruz waiver, we need not address whether his arrest while on bail provided an independent ground for sentencing appellant to a higher term. Nor need we address respondent’s claim that appellant forfeited part or all of this issue by failing to raise it in the trial court.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.