Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF185470, Gary L. Paden, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
The facts are not at issue on appeal.
On July 20, 2007, appellant pled no contest to transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)), with a personal arming enhancement (Penal Code § 12022, subd. (c)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He admitted having a prior conviction for a narcotics offense (Health & Saf. Code, § 11370.2, subd. (a)). Appellant also admitted violating probation in trailing case Nos. VCF156685A and VCF161063.
All further undesignated statutory references are to the Penal Code.
Appellant has filed a separate appeal (F054790) involving Tulare Superior Court case No. VCF156685A. Appellant’s unopposed request for judicial notice of the record in F054790 when we consider his current appeal is granted. (Evid. Code, § 452, subd. (d)(1).)
Pursuant to a plea, the trial court indicated an eight-year sentence for the combined cases and ordered appellant to appear for sentencing on September 12, 2007. The court indicated that the sentence would increase to 11 years if appellant failed to appear or if he committed a new offense. On September 12, 2007, appellant failed to appear, and a bench warrant issued.
On January 11, 2008, the trial court ordered probation revoked in case Nos. VCF156685A and VCF161063. It then sentenced appellant in the current case to 11 years in state prison, “pursuant to a negotiated plea agreement,” consisting of the four-year midterm for transportation of a controlled substance, a consecutive four-year personal arming enhancement, and a consecutive three-year prior narcotics conviction enhancement. Concurrent terms were imposed in case Nos. VCF156685A and VCF161063.
Appellant contends that the 11-year sentence was unauthorized. We disagree and affirm.
DISCUSSION
Did the trial court err when it sentenced appellant to 11 years in prison?
Following appellant’s failure to appear for sentencing, the trial court sentenced him to 11 years in state prison. Appellant contends this sentence was unauthorized by his Cruz waiver because his failure to appear was not willful. In the alternative, he argues the trial court violated his state and federal constitutional rights to notice and due process by imposing an increased sentence without an evidentiary hearing. We disagree.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
Background
On July 20, 2007, the prosecutor stated, “for the record,” that the People offered appellant a plea and asked that the court “take a Cruz waiver” because appellant was out of custody. The trial court agreed and, prior to appellant’s plea, indicated that his sentence would be eight years in state prison. But the court informed appellant that “should [he] not appear for sentencing on the date we set, … instead of 8 years [he would] get 11 years.” Appellant stated that he understood and agreed to the condition.
The 11-year term consisted of “the mid term plus the enhancements.”
The prosecutor then asked that the trial court also condition the sentence on appellant not “violat[ing] or commit[ing] any new felonies.” (The court agreed and in turn told appellant, “obviously if you commit any new crimes you’re gonna get arrested and all bets are off. You’re going for 11 years. I’m leaving you out on the condition that you not commit any new offenses. Fair enough?” Appellant again agreed, and the court took his plea.
Following the entry of his plea, the court again reminded appellant of the conditions surrounding his upcoming sentencing and that “should [you] fail to return, or get[] arrested on any new charges instead of 8 years it’s going to be 11 years.” The trial court again asked appellant if he understood and he replied, “Yes, sir.”
On September 12, 2007, appellant failed to appear for sentencing. A handwritten entry in the minute order states, “Def is in jail in Kings County.”
On January 11, 2008, appellant appeared for sentencing. The trial court noted that the indicated sentence was for eight years but that there was a “Cruz waiver if [appellant] failed to appear on [September] 12th.” But the court reasoned that, because appellant was in custody in Kings County at that time, his failure to appear was not a “willful violation.”
The prosecutor then argued that appellant had “picked up a new case” and that part of the agreement was that if appellant “violated any other laws or picked up any new charges” it would be part of the Cruz waiver. The trial court at first questioned the prosecutor’s contention but, after consulting the transcript of the former proceeding, agreed, noting that one of the conditions of appellant’s plea agreement was that he avoid committing any new offense. The prosecutor then informed the court that appellant had been arrested for “transportation and possession for sales” on August 24, 2007, and that he pled guilty to the violation on September 11, 2007.
When defense counsel stated that he did not have the information that the prosecutor had, the prosecutor offered to “put it over” in order to contact Kings County and get a probation report or certified record of conviction. Defense counsel asked the trial court what sentence it intended to give appellant, and the trial court stated 11 years. Defense counsel asked to consult with appellant and then stated, “Let’s go ahead with sentencing.” The trial court subsequently sentenced appellant to the 11-year indicated term.
Analysis
Section 1192.5 permits the entry of a plea of guilty or no contest, specifying both the punishment to be imposed and the manner in which the sentencing court will exercise the other powers legally available to it. Upon acceptance of the plea by the prosecutor and its approval by the court, the court may not impose a sentence “more severe than that specified in the plea [or] proceed as to the plea other than as specified.…” (Ibid.) The statute then provides:
“If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the [sentencing] hearing, withdraw its approval in light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.…” (§ 1192.5.)
The court in Cruz rejected the characterization of a defendant’s failure to appear for sentencing as a “breach” of the plea agreement, and noted that the failure to appear is a separate criminal offense under section 1320 (own recognizance release) and section 1320.5 (on bail). (Cruz, supra, 44 Cal.3d at p. 1253.) “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.” (Ibid.) But, the court then 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.” (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
Thus, under what has since been called a “Cruz waiver,” a defendant may expressly agree as part of the plea bargain that his or her failure to appear will permit the court to impose a longer sentence. In that situation, since the sentence is not a departure from the plea agreement, the defendant is not entitled to an opportunity to withdraw the plea. (See, e.g., People v. Masloski (2001) 25 Cal.4th 1212; People v. Casillas (1997) 60 Cal.App.4th 445; People v. Vargas (1990) 223 Cal.App.3d 1107; cf. People v. Murray (1995) 32 Cal.App.4th 1539 [possibility of greater sentence if defendant failed to appear, although discussed, was not part of plea bargain]; People v. Jensen (1992) 4 Cal.App.4th 978 [return provision was imposed per court policy, not as part of plea agreement].)
In Casillas, this court summarized the rule as follows:
“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.” (People v. Casillas, supra, 60 Cal.App.4th at pp. 451-452; see also People v. Vargas, supra, 223 Cal.App.3d at pp. 1111-1112.)
Both parties agree, as do we, that when enforcing a Cruz waiver for failure to appear, the failure must be willful. When applied to intent, “willfully” means “with a purpose or willingness to commit the act or to make the omission in question.” (CALJIC No. 1.20.) “The word ‘willfully’ does not require any intent to violate the law, or to injure another, or to acquire any advantage.” (Ibid.) Here the trial court determined that appellant’s failure to appear was not willful because he was in custody in another county.
But even if appellant was in custody at the time of sentencing and thus had good cause for failing to appear, the plea agreement and waiver also specified that appellant was to avoid committing any new offense. Here, after entering his plea, appellant committed a new criminal offense, for which he pled guilty. The commission of the new offense permitted the trial court to impose the 11-year prison term.
Appellant disagrees, insisting that the trial court incorrectly imposed the higher sentence because he failed to appear for sentencing. According to appellant, respondent’s argument that the sentence was not increased based on his nonwillful failure to appear, but instead on the commission of a new offense, “is not correct because there was no proof on the record, by a preponderance of the evidence, that appellant had committed any new offense; nor was there a knowing, intelligent, and personal waiver of the need for such proof.” (Italics omitted.)
We agree with respondent that the 11-year sentence was not imposed because appellant failed to appear, but because he committed a new offense. While the parties and the trial court negotiated a Cruz waiver with a no-return provision that specifically provided that appellant would appear timely for sentencing, the waiver also contained a provision that appellant commit no new offense in the interim before sentencing, subject to a sanction consisting of an additional three-year term if he did commit a new offense. (See People v. Carr (2006) 143 Cal.App.4th 786, 790 [defendant agreed not to “violate any law” between date of plea and date of sentencing]; People v. Rabanales (2008) 168 Cal.App.4th 494, 498-499 [defendant agreed to a plea that he “break no laws” before imposition of sentence].) Upon appellant’s return to court on January 11, 2008, the trial court determined he had violated the commit-no-new-offense provision of the Cruz waiver and imposed the increased punishment contemplated by the waiver.
In Carr, pursuant to a written plea agreement, the defendant pled guilty to carjacking and was sentenced to nine years in state prison. The plea agreement, which included what was described as a “Vargas waiver,” provided that the defendant would be released on his own recognizance and resentenced to a reduced term of 365 days to be served on weekends if certain conditions were met and he appeared in court for resentencing on February 22, 2005. One of the conditions in the plea agreement was that the defendant “not violate any laws” while released on his own recognizance. (People v. Carr, supra, 143 Cal.App.4th at p. 788.)
Based on the approval of a similar plea agreement in which the defendant agreed to a specific greater term if he failed to appear for sentencing and to a specified lesser term if he did appear. (People v. Vargas, supra, 223 Cal.App.3d at p. 1108.)
Prior to the date the defendant was to reappear for the pronouncement of judgment, he was arrested when his girlfriend accused him of grabbing her neck and threatening to kill her. As a result of the arrest, the defendant was brought before the court on February 8 for being in violation of the plea agreement, and the February 22 sentencing hearing was continued. Subsequently, following an evidentiary hearing, the court found the defendant violated the plea agreement and, as a result, did not resentence him to the lower term of 365 days. (People v. Carr, supra, 143 Cal.App.4th at p. 788.) On appeal, the court rejected the defendant’s argument that the trial court did not give him sufficient notice concerning the alleged violation of the plea agreement and did not make sufficient findings to justify its conclusion that he violated the plea agreement. (Id. at pp. 789-792.)
Here, the same rules that apply to the Cruz no-return provision also apply to a Cruz waiver concerning no new violation of law. The plain language of the plea bargain conditioned the increased punishment upon appellant having “committed” a new offense, not upon his suffering a mere arrest and new charge. (People v. Shelton (2006) 37 Cal.4th 759, 767 [terms of plea bargain are interpreted, inter alia, by plain meaning of their provisions]; see Stuart v. Superior Court (1979) 94 Cal.App.3d 182, 186 [court failed to mention at time of plea that it would revoke bargained-for stay of execution pending appeal were defendant to commit further offense before appeal was resolved].) We interpret the term “committed” to constitute an implied condition that if appellant were rearrested in the interim before sentencing, then the trial court would afford him an informal evidentiary hearing at which time it would consider some reliable proof to show he had actually committed a new offense.
The plea negotiations were engaged in here by three parties: appellant, the trial court, and the prosecutor. During the plea, the court set out the terms of the plea explicitly before appellant pled guilty. Appellant waived a jury trial for all purposes along with other requisite constitutional rights and agreed to a specific term. That is, he agreed to the imposition of a two-tiered prison term, depending upon his performance of the conditions of the Cruz waiver, and the plea bargain involved an “agreed-to” sentence.
We also disagree with appellant’s contention that the trial court improperly relied solely on information provided by the prosecutor in determining that he had committed a new offense. While we agree that the plea bargain contained the implied condition that the trial court would have reliable proof of the commission of a new offense before the imposition of the maximum term, here, the imposition of the maximum term rested on such proof. Prior to imposing sentence, the trial court asked defense counsel to respond to the prosecution’s allegation that appellant had committed and pled guilty to a new crime in Kings County. When defense counsel stated that he did not have the information that the prosecutor was relying on, the prosecutor offered to put over sentencing to allow time to obtain a probation report or a certified record of conviction for the new offense. But after conferring with appellant, defense counsel chose to go forward with sentencing. Appellant therefore waived his claim on this issue. (People v. Scott (1994) 9 Cal.4th 331, 351-352 [issues concerning manner in which sentence is imposed and the hearing conducted are waived by failing to object]; People v. Walker (1991) 54 Cal.3d 1013, 1023 [purpose of general doctrine of waiver is to encourage defendant to bring errors to attention of trial court so they may be corrected or avoided].)
The trial court never deviated from its insistence that a violation of the Cruz waiver would result in the maximum term. We conclude that appellant was properly sentenced pursuant to the terms of the plea bargain and waiver.
We also conclude that the trial court did not violate appellant’s state and federal constitutional rights to notice and due process by imposing the 11-year term without an evidentiary hearing or, as argued by appellant, the “basic due process protections attendant to a probation-revocation hearing.” “[Appellant] cites no legal authority, and we have found none, which expressly applies the due process requirements of probation revocation cases involving a Vargas waiver.” (People v. Carr, supra, 143 Cal.App.4th at p. 789.)
In any event, “‘[t]he fundamental requisite of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. [Citations.]’ [Citation.]” (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) Appellant was given the opportunity to delay sentencing and to require the prosecutor to obtain a probation report or certified copy of the conviction. Instead, appellant chose to waive the issue and be sentenced. Appellant was afforded due process.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., HILL, J.