Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB049665. Kenneth Barr, Judge.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Pursuant to a plea agreement, defendant pleaded guilty to one count of operating a chop shop (Veh. Code, §§ 10801, 250) (count 1), one count of receiving stolen property (a license plate) (Pen. Code, § 496, subd. (a)) (count 4) and two counts of receiving stolen property (a motor vehicle) (§ 496d, subd. (a)) (counts 2 and 3). Defendant also admitted that he had previously been convicted of taking or driving a stolen vehicle (§ 666.5, subd. (a)), that he had previously served a prior prison term (§ 667.5, subd. (b)), and that he had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). In return, defendant was sentenced to 14 years 4 months, comprised of an upper term of eight years (four years doubled due to the prior strike allegation) on count 1, consecutive terms totalling five years four months on counts 2 through 4 (one year, one year, and eight months, respectively, doubled due to the prior strike allegation), and a consecutive term of one year for the prior prison term allegation, with credit for time served. However, since defendant’s agreement also included a Vargas waiver, execution of the sentence was stayed, and defendant was released from custody pending a further sentencing hearing. Under the Vargas waiver, if defendant violated no laws, reported to probation, and appeared for the further sentencing hearing on time, defendant’s 14 year 4 month sentence would be reduced to five years at half time, with his prior strike allegation being stricken. On the other hand, if he violated the law, failed to report to probation, or failed to appear on time for the sentencing hearing, his 14 year 4 month sentence would remain.
All future statutory references are to the Penal Code unless otherwise stated.
People v. Vargas (1990) 223 Cal.App.3d 1107.
Defendant subsequently violated the terms of his Vargas waiver. Following a Vargas waiver hearing, the trial court found defendant violated the terms of his Vargas waiver, lifted the stay on defendant’s 14 year 4 month sentence, and imposed the sentence, with credit for time served.
On appeal, defendant contends (1) the trial court abused its discretion in finding that he had violated the terms of his Vargas waiver; (2) this court should modify his sentence to five years because the trial court lacked jurisdiction to sentence him to 14 years 4 months based on an incident that occurred after the original offense; (3) this court modify his sentence to five years because his plea bargain was unconscionable; and (4) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) ___ U.S. ___ [124 S.Ct. 856, 166 L.Ed.2d 856] when the trial court found that he violated the terms of his Vargas waiver and imposed the original sentence. We reject these contentions and affirm the judgment.
I
The factual background is taken from the probation officer’s report and the preliminary hearing transcript.
In April 2005, San Bernardino City Police Department Officer Kenneth Peary was assigned to the San Bernardino County Auto Theft Task Force (Task Force), which focused on “chop shops.”
On April 13, 2005, Officer Peary was dispatched to an area on Fourth Street in San Bernardino, where he found a white Scion XB in the roadway. The Scion had been reported stolen on March 10, 2005, and had been completely stripped. A search of the Scion disclosed a letter addressed to a residence some 300 feet away. At the residence, the officer found the Scion’s engine and transmission assembly in the garage, as well as numerous other miscellaneous automobile parts.
After obtaining a search warrant, Task Force officers found a stolen white Camaro in the garage with different license plates on it. The officers also discovered other stolen license plates, as well as more parts for the Scion. In the backyard, Officer Peary found interior parts of the Scion and a license plate from a stolen Acura Integra.
Inside a bedroom at this residence, the officers found defendant, who identified himself to the officers (and during booking) as “Javier Mendoza.” Defendant’s girlfriend told the officers that she had seen defendant dismantling the Scion and the Camaro. Later analysis disclosed defendant’s fingerprints on both the Scion and the Camaro. Officer Peary opined that defendant operated a chop shop at the residence.
II
DISCUSSION
A. Waiver of Right to Appeal
The People contend that defendant waived his right to challenge his agreed sentence on appeal, as he expressly waived any appeal of his sentence as part of his plea bargain.
A criminal defendant may waive the right to appeal as part of a plea bargain if that waiver is knowing, intelligent, and voluntary. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) “Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which appellate courts review de novo.” (Ibid.)
When defendant changed his plea to guilty pursuant to the plea bargain, he filled out a three-page change of plea document. The document included the following statement, initialed by defendant: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” Defendant also personally initialed the statement that his attorney had explained everything on the form to him, that his attorney had sufficient time to discuss the meaning of each paragraph, and that he fully understood the meaning and impact of each statement.
Below defendant’s signature, defendant’s attorney signed a statement declaring “ . . . I personally read and explained the contents of the above declaration to the defendant; that I personally observed the defendant sign said declaration; that I concur in the defendant’s withdrawal of his/her plea(s) of not guilty; and that I concur in the defendant’s plea(s) of guilty . . . to the charge(s) as set forth by the defendant in the above declaration.”
At the hearing on the change of plea, defendant represented that he had read, initialed, and signed the waiver form; reviewed the form with his attorney; understood his rights; and was willing to give up his rights to enter his plea. After confirming that defendant had in fact read, reviewed, and initialed each applicable box in the change of plea form, the court signed the form, finding defendant was voluntarily, intelligently, and knowingly giving up his rights and entering his guilty plea. We find this record demonstrates a valid waiver of the right to appeal. (See People v. Panizzon, supra, 13 Cal.4th 68, 80-84.)
However, “[a] broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error.” (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) “Thus, a waiver of appeal rights does not apply to ‘“possible future error” [that] is outside the defendant’s contemplation and knowledge at the time the waiver is made.’” (Ibid., quoting People v. Panizzon, supra, 13 Cal.4th at p. 85.) A “general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea.” (Panizzon, at p. 85, fn. omitted.) The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662.)
Here, defendant waived his right to appeal his conviction and judgment. He did not waive his right to appeal any possible future error by the trial court in the event it became necessary to consider whether he violated a term of his plea agreement. Hence, we find defendant’s claims of error relating to his Vargas waiver appealable. His claim that the plea bargain itself was unconscionable, however, was not a future error outside defendant’s contemplation and knowledge at the time the waiver of his appellate rights was made. We find that contention waived.
B. Issues Related to the Vargas Waiver
1. Violation of Vargas waiver
Defendant contends that the trial court abused its discretion in finding he had violated the terms of his Vargas waiver. Specifically, he claims the court should have imposed the alternate stipulated term of five years rather than the stipulated term of 14 years 4 months because he had “substantially complied” with the terms necessary to secure the alternate five-year Vargas term.
“‘While no bargain or agreement can divest the court of the sentencing discretion it inherently possesses [citation], a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] “A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.” [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.” [Citation.]’ [Citation.]” (People v. Tang (1997) 54 Cal.App.4th 669, 680.)
Defendant entered into a plea agreement in which he pleaded guilty to the counts charged, admitted all the allegations, and received a stipulated sentence of 14 years 4 months. Defendant also negotiated a Vargas waiver, with imposition and suspension of the stipulated 14 year 4 month sentence, his conditional release, and imposition of an alternate five-year sentence if he met the following conditions: that he return to court by 8:15 a.m. on January 25, 2006; that he report to the probation department by December 20, 2005; that he comply with all directives of the probation department; and that he violate no law.
In response to the court’s questions at the change of plea hearing, defendant repeatedly stated he understood he needed to comply with all the Vargas terms to obtain the five-year sentence. The court also specifically stated, “And you are going to come back on January 25th at 8:15 a.m.” Defense counsel then informed defendant “Don’t be late, guy. 8:00 [a.m.] you be out there.” The court then stated, “If you are late, you will violate your Vargas Waiver.” (Italics added.) After informing defendant of his constitutional rights, the court again went over the terms of his plea agreement, including the Vargas waiver, and defendant personally stated that he understood the terms of his Vargas waiver as well as his plea agreement. At the conclusion of the change of plea hearing, the court again told defendant, “And the only way it gets to be five years at half time is if you keep your end of the bargain: come back on time, report to probation, and don’t commit any crimes.” When asked if defendant understood that, defendant responded, “Yes, your Honor.” The court ended the hearing by telling defendant, “Whether it’s the fourteen or the five, it is up to you,” and defendant replied, “Yes, your Honor. I understand.”
On December 20, 2005, defendant reported to the probation department as directed by the court. At this appointment, defendant was given a “Responsibility Notice,” which advised him of his duty to provide the probation department with his current address and also directed him to report back to the probation department if he did not receive a letter from the probation department establishing a date for his presentence interview within two weeks, i.e., by January 11, 2006.
On January 3, 2006, an appointment letter for the presentence interview was sent to defendant from the probation department with a January 10, 2006, return appointment date. Defendant did not appear at the interview as directed, nor did he call the probation department pursuant to the instructions he was given.
On January 25, 2006, court was called into session on defendant’s case at 8:15 a.m., and defendant was not present. The court issued a no-bail bench warrant and took the matter off calendar, stating, “He was released on a Vargas plea and waiver. I have a memo from probation saying he failed to appear to probation as ordered by the Court. I will find a prima facie violation of Vargas Waiver based on failure to appear today, failure to comply with court order, and failure to report to probation.” (Italics added.) While other matters were being addressed, defendant arrived and stated, “Sorry I am late.” The court informed defendant that he was late and that a warrant had been issued for his arrest. Defendant was then taken into custody, and the matter was continued to permit presentence investigation.
On March 14, 2006, defendant was interviewed by the probation department. He stated that he never received the January 3 appointment letter sent by the probation department; however, he confirmed that he had received the responsibility notice, which directed him to call the probation department if he did not receive a letter by January 11, 2006, and which he did not do. In addition, defendant explained that he was late for his January 25 court date because he had to take a bus when his ride to court did not show up.
At the March 29, 2006, Vargas hearing, defense counsel acknowledged that defendant did show up late for the January 25 court date but argued that defendant had complied with the “majority of his terms and conditions on his release . . . .”
The court responded that, were it only that he was a few minutes late to his court appearance, it would not find a “significant” violation of the Vargas waiver. However, the court found that defendant violated the terms of his Vargas waiver based also on his failure to keep his appointment with probation, explaining: “But when you look at the plea agreement, paragraph 16, which applies to Vargas Waivers and it is initialed by the defendant, the term is ‘report to the probation department as ordered by the court and keep any appointments set by the probation department.’ That -- which he failed to do, as requested and required, along with being late -- is consistent with conduct which violates the Vargas Waiver.”
Matters within the court’s discretion “must be upheld unless an abuse thereof is clearly demonstrated.” (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) A trial court abuses its discretion when its decision is “arbitrary or capricious or ‘“‘exceeds the bounds of reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) We are also required to accept all factual findings of the trial court that are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The court’s finding that defendant violated the Vargas waiver was well within its discretion and was supported by substantial evidence.
2. Jurisdiction to impose alternate sentence despite Vargas violation
Defendant claims that the trial court retained jurisdiction to impose the alternate five-year sentence despite his violation of his Vargas waiver. The People argue the trial court did not have discretion to reduce defendant’s sentence after approving the plea agreement and finding a violation thereof.
As both parties acknowledge, this issue was addressed by this court in People v. Carr (2006) 143 Cal.App.4th 786. In that case, the defendant similarly argued the trial court did not exercise or acknowledge its discretion to impose the lower sentence. There, the defendant pleaded guilty pursuant to a written plea agreement accepted by the trial court. The trial court sentenced the defendant to the agreed-upon nine-year prison term, which would be reduced to 365 days in jail if he appeared for sentencing and did not commit any crimes in the meantime. (Id. at p. 788.) The trial court found that defendant violated the plea agreement by committing a crime and sentenced him to the nine-year term. (Ibid.) On appeal, the defendant argued, “[T]he trial court failed to recognize that it was not required to impose the bargained sentence.” (Id. at p. 793.) We declined to address any sentencing issues because the defendant had not obtained a certificate of probable cause to challenge the plea. (Id. at pp. 793-794.) However, in response to the defendant’s argument that the trial court had discretion to sentence him to a term anywhere between 365 days and nine years, we stated, “The agreement was to sentence him to a prison term of nine years and, if he returned on a certain date and did not violate any law in the interim, he would be resentenced to 365 days in jail on weekends. As a result, the trial court had no discretion to resentence defendant to the lower sentence after it determined that defendant had violated his [plea agreement]. Thus, the trial court merely implemented the reasonable expectations of the parties.” (Id. at p. 794.)
Likewise, here, as defendant personally acknowledged at the change of plea hearing and on his plea document, his plea agreement terms were very specific and very clearly set forth: He stipulated to a 14 year 4 month sentence and would receive the alternate stipulated five-year sentence only if he abided by the specific terms of his Vargas waiver. Therefore, as we found in Carr, “the trial court merely implemented the reasonable expectations of the parties” (People v. Carr, supra, 143 Cal.App.4th at p. 794) after finding that defendant had indeed violated the terms of his Vargas waiver by failing to abide by the directives of the probation department and by arriving at court late.
Even if we were to find that the trial court retained jurisdiction to impose the alternate five-year sentence, we would find that the trial court did not abuse its discretion in not doing so. The plea form clearly states that the alternate five-year sentence would be given only if no violation of the Vargas waiver occurred. The trial court made that perfectly clear to defendant, and defendant indicated that he understood.
For the same reasons, we also reject defendant’s argument that the court abused its discretion in not sentencing defendant to the five-year term despite the violation of the Vargas term under the authority of section 1192.5.
3. Reliance on factors occurring after the plea
We further reject defendant’s claim that the trial court improperly imposed the agreed 14 year 4 month sentence because it improperly relied on a factor occurring after the original offense, i.e., his voluntary violation of the Vargas waiver terms.
Defendant’s reliance on People v. Scott (1984) 150 Cal.App.3d 910 is misplaced. That case involved whether the trial court retained discretion to resentence defendant to a greater term of imprisonment than that to which he was initially sentenced should he fail to cooperate at the California Rehabilitation Center (CRC). The appellate court held the only limitation on sentencing after discharge or termination from commitment is that a defendant may not be sentenced to a greater term than the term in the sentence originally imposed and suspended. (Id. at pp. 916-920.) Here, defendant was initially sentenced to 14 years 4 months. That is the sentence that was ultimately imposed. The court therefore did not “resentence” defendant to a greater term than initially imposed, as did the court in Scott.
In sum, on the facts presented, we cannot conclude the trial court abused its discretion in finding defendant’s failure to timely appear on January 25, 2006, and to keep his appointments set by the probation department were willful violations of his plea agreement. Having found willful violations, the trial court was bound to affirm the longer sentence in accordance with the expectation of the parties as expressed in the plea agreement.
B. Blakely/Cunningham Issue Involving Violation of Vargas Waiver
In yet another attempt to avoid his agreed sentence for violating the terms of his Vargas waiver, defendant contends that, pursuant to Blakely, supra, 542 U.S. 296 and Cunningham, supra, 127 S.Ct. 856, he was entitled to a jury finding beyond a reasonable doubt of the fact of a volitional Vargas violation. According to defendant, Blakely and Cunningham apply because the trial court’s determination as to whether he violated his Vargas waiver is the functional equivalent of deciding whether there are aggravating factors to justify imposing the greater agreed sentence of 14 years 4 months.
We disagree. The violation of a Vargas waiver is the breach of an agreement, not a fact used to impose a higher sentence. The violation of the waiver provisions differs from a fact used to impose a higher sentence because of the different contexts — a voluntary plea agreement versus the making of factual findings to determine an involuntary, judge-imposed sentence. Here, the higher sentence had already been imposed by the court pursuant to the agreement of the parties. As part of the same plea agreement, the parties had also agreed that compliance with the Vargas waiver would result in a reduced sentence.
A trial court making a Vargas violation determination is not making a finding in aggravation or a discretionary sentencing choice. (See People v. Carr, supra, 143 Cal.App.4th at pp. at p. 794.) Consequently, there is no “upper term choice” or “increased sentence choice” as contemplated by Blakely and Cunningham. (See Cunningham, supra, 127 S.Ct. at p. 871; Blakely, supra, 542 U.S. at pp. 303-305.) Moreover, since defendant stipulated to the precise total term of either specified sentence, there was no “upper term choice” for the court to make. Essentially, the court here had no discretion regarding which sentence to impose; rather, the “choice” between the agreed specified sentence of 14 years 4 months or the specified alternate five-year sentence solely was in defendant’s control.
Even if Blakely/Cunningham applied, defendant had already explicitly waived his right to a jury by agreeing in the plea agreement that a judge would determine whether he had violated the Vargas waiver conditions. Defendant contends that paragraph 16(g) of the agreement, which states in pertinent part that “any willful violation of these terms [set forth in paragraph 16(a)-(f)] will be decided by the sentencing judge without a jury,” is not applicable to the Vargas waiver. This is so, he contends, because paragraph 17, outlining the Vargas waiver, does not specifically refer to paragraph 16(g), but only to paragraph 16(a) through (f). Defendant is mistaken. In the context of this particular plea agreement, it is apparent that the intent of the parties was to apply the terms of paragraph 16 (designated “Cruz waiver”) to the Vargas waiver involved herein. In referring to paragraph 16, subsections (a) through (f), paragraph 17 is talking about the specific terms of the Vargas waiver. The consequences for violating the Vargas waiver are contained in subsection (g) of paragraph 16, and defendant agreed to those consequences, including that a judge and not a jury would determine whether a violation occurred, when he initialed that paragraph and accepted the plea agreement. (See People v. Carr, supra, 143 Cal.App.4th at p. 793 [similar contention was a “strained interpretation” of the plea agreement].)
People v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5.
Further, a defendant may be estopped from complaining about a sentence, even if it is unauthorized, if the defendant agreed to it as part of a plea agreement. (See People v. Hester (2000) 22 Cal.4th 290, 295.) When a defendant contends that the trial court’s sentence violates rules that would have required the imposition of a more lenient sentence, but he or she avoided a potentially harsher sentence by entering into the plea bargain, the court will infer that the defendant waived any rights under such rules by choosing to accept the plea bargain. (Ibid.) “The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (Ibid.) We thus infer that defendant waived any potential right under Blakely by choosing to accept the plea bargain.
III
DISPOSITION
The judgment is affirmed.
I concur: McKINSTER Acting P.J.
KING, J., Dissenting.
I believe the trial court abused its discretion in finding that defendant violated his Vargas waiver.
People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).
“One old but still quoted definition of [abuse of discretion] is stated in part as follows: ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ [Citations.] [¶] In Denham v. Superior Court (1970) 2 Cal.3d 557, 566, our Supreme Court declared that ‘. . . a reviewing court should not disturb the exercise of a trial court’s discretion unless it appears that there has been a miscarriage of justice.’ More recently, the Supreme Court has stated that a trial court’s discretion is not ‘unfettered’ but must be ‘“‘exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’”’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066-1067.) Here, I believe the trial court’s imposition of the sentence of 14 years 4 months resulted in a miscarriage of justice and was not in conformity with the spirit of the law nor intended to promote the ends of substantial justice.
As the record reflects, at the prepreliminary hearing conference, defendant was offered a plea bargain of five years in state prison at half time. The offer was rejected. Following the filing of an information, defendant, at a pretrial conference, pled guilty to various crimes, admitting that he had served a prior prison term and suffered a prior strike. A plea agreement was signed and sentence was pronounced at 14 years 4 months at 80 percent. As part of the plea, defendant agreed to a Vargas waiver. Under the terms of the agreement, upon defendant’s compliance with the terms and conditions of the waiver, he would be resentenced to five years in state prison at half time, a difference of nine years.
At the time of defendant’s plea and the intitial imposition of sentence, the following took place:
“THE COURT: . . . You are released on a Vargas waiver. You come back when you are supposed to, you don’t commit any new crimes, don’t get yourself into trouble, and you don’t violate the Vargas waiver, I will then resentence you to five years, and that would be at— [¶] . . . [¶]
“THE COURT: It is to your benefit to come back.
“THE DEFENDANT: I understand, your Honor. Thank you. [¶] . . . [¶]
“THE COURT: . . . And our agreement is you are going to be sentenced under what we call a Vargas Waiver. If you come back as ordered, not late, on time, without committing any crimes, or causing any problems, I will resentence you to the five years at half time. [¶] Is that your understanding?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: Do you understand everything I have said so far?
“THE DEFENDANT: Yes, your Honor. [¶] . . . [¶]
“[DEFENSE COUNSEL]: [Defendant] has indicated when he is released from custody, he has to report to parole. I also advised him he’ll have to report to probation.
“THE COURT: How about report to probation by next Tuesday, December 20? [¶] Can you do that?
“THE DEFENDANT: Yes, your Honor. [¶] . . . [¶]
“THE COURT: You are ordered to report to probation next Tuesday—no later than next Tuesday, December 20, to set up your appointment. Let me go over the sentencing for the Vargas sentence. [¶] . . . [¶]
“THE COURT: [Defendant], report to probation no later than Tuesday, December 20. You are ordered back into this court on Wednesday, January 25, at 8:15 a.m. Let me just go over one thing. You understand you are sentenced to state prison for fourteen-plus years. [¶] Do you understand that?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: And the only way it gets to be five years at half time is if you keep your end of the bargain: come back on time, report to probation, and don’t commit any crimes.”
On January 25, the time set for sentencing, the following transpired:
“[DISTRICT ATTORNEY]: Could we call [defendant’s] case, your Honor?
“THE BAILIFF: No response. I will call again.
“THE COURT: It is 8:15 [a.m.].
“THE BAILIFF: No response.
“THE COURT: Call the case of [defendant], FSB-049665. [Defense counsel] is here, [the prosecutor] is here; the client is not here. He was released on a Vargas plea and waiver. I have a memo from probation saying he failed to appear to probation as ordered by the Court. I will find a prima facie violation of the Vargas Waiver based on failure to appear today, failure to comply with a court order, and failure to report to probation. . . . [¶] . . . [¶]
“THE DEFENDANT: Sorry I am late.
“THE COURT: I am going to take him into custody and get a report. [¶] . . . [¶]
“THE COURT: Is that him?
“[DEFENSE COUNSEL]: Yes, your Honor.
“THE COURT: Come forward. Let’s go back on the record on [defendant’s] matter. You are late. There is a no-bail warrant out. I will arraign you on the warrant, reappoint the conflict panel, refer the matter to probation for the report. You are ordered back into this court on Wednesday, March 1st, at 8:30 [a.m.]. Surrender yourself to the bailiff.
“THE DEFENDANT: Your Honor?
“THE COURT: Don’t talk to me.”
On March 29, the time set for sentencing, the reporter’s transcript reflects:
“THE COURT: On the record on [defendant’s] case, FSB-049665. He’s here with [defense counsel], and [the prosecutor], for a hearing on the Vargas waiver. The Court has taken judicial notice of the file and received a report from probation. The Court has read and considered it, and the Court’s indicated is because this is a Vargas, I agree with the probation officer’s analysis. [¶] . . . [¶]
“[DEFENSE COUNSEL]: Yes your Honor. Your Honor, [defendant] did report to probation initially as directed by the probation officer. That is shown by the notice letter. In the interview, [defendant] did indicate that he did receive the notice but was not under the impression that he did have to report within two weeks after contact. He was given terms and conditions pursuant to that Vargas waiver on the plea form. [¶] In mitigation, your Honor, I would just like to indicate that [defendant] did show up to court on the date that he was ordered to be here, albeit he did walk in one or two minutes after the matter had been called, . . . [¶] . . . [¶]
“THE COURT: The Court has read and considered that report [the probation report]. And if it was just being a few minutes late, the Court would find that wasn’t any significant violation of the Vargas Waiver. But when you look at the plea agreement, paragraph 16, which applies to Vargas Waivers and it is initialed by the defendant, the term is ‘report to the probation department as ordered by the court and keep any appointments set by the probation department.’ That—which he failed to do, as requested and required . . . .”
I recognize the trial court acted within the parameters of the Vargas waiver. I nonetheless believe that in balancing and/or viewing defendant’s purported violations of the waiver, in light of an additional nine-year prison term, the court exercised its discretion in a manner not in conformity with the spirit of the law nor in a manner to promote the ends of substantial justice.
Nine years is the difference between serving 14 years 4 months at 80 percent and five years at half time.
The district attorney’s office, for whatever reason, felt that an appropriate sentence was five years at half time. It was offered at the prepreliminary hearing and agreed upon at the time defendant entered his plea. Additionally, the trial court must have felt it within a reasonable range or it would not have agreed to resentence defendant to that term, assuming compliance with the Vargas waiver.
Defendant’s purported violations of the waiver were his failure: (1) to set up an appointment with probation, and (2) be at court at 8:15 a.m. for sentencing. As it relates to the issue of probation, defendant did report as directed. At that time, he was given a notice that if he was not notified of an appointment date on or before January 10, he was to call probation on January 11. Apparently, probation did forward a letter setting up an appointment for January 10. Defendant indicated that he never received it. He further stated that, while he had the original notice at home, he did not know he was to call for an appointment. As it relates to his failure to be at court at 8:15 a.m. for sentencing, it is clear that defendant did appear within minutes of the 8:15 a.m. time. He explained that the reason for his lateness was that after his parole officer failed to pick him up, he had to take the bus; he did not know the bus schedule.
Term 16(g) of the plea agreement provides that any violation of the Cruz/Vargas waiver must be “willful.” (See People v. Carr (2006) 143 Cal.App.4th 786.) Penal Code section 7, in defining “willfully,” provides, “when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to.” As explained by Justice Kennard in her dissent in People v. Barker (2004) 34 Cal.4th 345, 363, “A willful act is one done ‘“intentionally or purposely as distinguished from accidentally or negligently . . . .”’ [Citations.] Here, defendant’s inadvertent failure to register timely was unquestionably negligent, but it was not willful.” In the present matter, defendant was clearly negligent in his failure to call the probation department in light of the fact that he had not heard from them. Based on his explanation, however, it does not appear “willful.” Relative to his slight tardiness at the sentencing hearing (one to two minutes), and the reasons therefore, it is indeed a stretch to characterize this failure as negligent, let alone willful.
People v. Cruz (1988) 44 Cal.3d 1247.
In taking the entire proceeding as a whole, the trial court abused its discretion in imposing the 14 year 4 month sentence. Defendant’s failures were slight. This is not a case where a defendant attempts to abscond while out on a Vargas waiver. The discrepancy between 14 years 4 months at 80 percent and five years at half time is great. Additionally, the court itself made no finding as it relates to the “willful” nature of the violations, and even were we to imply such a finding, the supporting evidence (probation report), is skimpy at best.
I believe the trial court’s exercise of discretion is perhaps best summed up when, after the defendant appeared at the initial sentencing hearing and attempted to address the trial court, the court’s response was, “[d]on’t talk to me.” The record as a whole does not support the conclusion that the trial court exercised an impartial discretion, guided and controlled by fixed legal principles. As stated in In re Robert L., supra, 21 Cal.App.4th at page 1066, the appropriate exercise of discretion “‘is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ [Citations.]” This did not occur here.