Filed 8/1/17 P. v. Hodges CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY EUGENE HODGES,

Defendant and Appellant.

F072863

(Super. Ct. No. BF161601A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On October 2, 2015, appellant Anthony Eugene Hodges pled no contest to one count of possessing methamphetamine while possessing a loaded, operable firearm. He was released on his own recognizance (OR) pursuant to a Cruz waiver, and agreed that if he failed to appear for sentencing, the upper term would be imposed for his conviction and he would not be allowed to withdraw his plea. Hodges failed to appear and a bench warrant issued. At sentencing, the trial court imposed the midterm of three years and Hodges appeals this as an abuse of discretion. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On September 22, 2015, Hodges was charged with being a felon in possession of a firearm (Pen. Code , § 29800, subd. (a)(1)/count 1), being a felon in possession of ammunition (§ 30305, subd. (a)(1)/count 2), possessing of methamphetamine while possessing a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)/count 3), and manufacturing, selling, or possessing a sawed-off shotgun (§ 33215/count 4).
On October 2, 2015, Hodges pled no contest to the count 3 offense, in exchange for dismissal of all other counts and an agreed-upon sentence of two years. At the hearing where Hodges’s plea was entered, he informed the trial court he was the sole caretaker for his mother and asked if he could have time to “coach” his sister on meal preparation, medications, and other duties required to care for their mother.
Defense counsel stated that Hodges was essentially asking to be released on a Cruz waiver. Hodges promised the trial court on “scout’s honor” he would turn himself in and appear for his sentencing. The People opposed the request, in light of Hodges’s “lengthy criminal history and nature of the charges,” including possession of a loaded sawed-off shotgun.
The trial court noted that Hodges had failed to appear in a previous case. The trial court then addressed defense counsel and asked if Hodges “understands that if he picks up a new case or if he doesn’t come back or if he doesn’t go to probation for the presentence recommendation, the court will sentence him to the upper term of four years with his history.” Defense counsel responded that Hodges understood.
The trial court then addressed Hodges directly and asked if he understood that he “would be waiving your right to withdraw the – your plea if I sentence you to more than two years” and in all likelihood would receive a sentence of four years if he violated any condition of release. Hodges affirmatively stated he understood. The trial court asked again if Hodges understood he would go to prison for four years if he violated conditions of release; Hodges again stated he understood.
Despite the People’s objection, the trial court released Hodges “on his own recognizance with that Cruz waiver” on the understanding that if Hodges failed to appear, failed to report to probation, or “pick[ed] up a new case,” Hodges would be sentenced to more than two years. Hodges responded, “Yes, sir.” Hodges was ordered to report to probation on October 5, 2015, and to return to court on November 2, 2015.
On November 2, 2015, defense counsel requested a continuance, stating Hodges’s mother was very ill. The People did not oppose the continuance. Hodges was present. The trial court set a continued hearing for November 16, 2015, at 8:30 a.m. and addressed Hodges directly, stating that if he did not show up on November 16, 2015, “you could be sentenced to the maximum and you will be waiving your right to withdraw your plea.” Hodges affirmatively stated he understood and agreed to this.
Hodges failed to appear on November 16, 2015. The trial court revoked Hodges’s own recognizance status and issued a no bail bench warrant.
At the December 4, 2015 sentencing hearing, defense counsel stated Hodges was “confused” and in “his mind he had a month continuance.” Hodges agreed with this statement. Defense counsel asked the trial court to consider honoring the “original agreement for two years.” Hodges apologized for his failure to appear. The People asked the trial court to impose a four-year term.
The trial court noted that at each hearing Hodges was notified of the conditions for remaining free on his own recognizance and the consequences of failing to abide by those conditions. The trial court asked how Hodges came to be placed in custody and defense counsel stated, “It’s my understanding he turned himself in.” The trial court asked the People and probation officer if they had “any other information as to that,” to which both responded in the negative.
The trial court then proceeded to state that if “law enforcement agencies would have had to arrest you, I would have sentenced you to the upper term of four years.” After this comment, the trial court noted the “emotional situation involving your mother” and stated that even though there was a violation of the Cruz waiver, the trial court was imposing the original two-year term.
After pronouncement of sentence, the trial court asked if there was anything further and the People indicated, “I’ve been informed [that law enforcement] went and got him.” The trial court asked, “Oh, he was picked up by law enforcement?” The People responded that was the information just received.
Defense counsel commented that Hodges had been at a park, saw a deputy, and spoke to the deputy about “being on OR status.” The deputy ran the information, received feedback that Hodges was in violation, and took Hodges into custody. Defense counsel emphasized that the deputy “wasn’t trying to violate him or any new violation.”
The trial court told Hodges he was “pushing [his] luck,” but left the “sentence as is” at two years. The People then stated, they “notified [law enforcement that Hodges] was on OR and failed to appear. I know [law enforcement] was in the area and they were looking for him. I’d like to verify this before we send him off to [California Department of Corrections].” The trial court agreed to “stay imposition of sentence” and trail the matter for the People to obtain more information.
When the matter was called again a short time later, Hodges stated, “I didn’t approach [the officer]. He approached me.” Hodges was in the company of another person; the officer ran both their names through the system; and the officer informed Hodges, “I’m going to have to go ahead and take you in.” Hodges told the officer, “it’s okay” and the officer “took [him] in.”
The prosecutor stated he had spoken with the investigating officer, who in turn contacted the arresting officer. The arresting officer “approached” Hodges and “ran a records check.” The prosecutor stated that according to the arresting officer, Hodges “did not volunteer any information.” Hodges then told the arresting officer he did not know he had a warrant and thought his continuance had been for 30 days.
Defense counsel did not object to any of the prosecutor’s comments regarding statements made by the arresting officer. Defense counsel responded that Hodges’s statements were consistent in that he “did mix up his court dates.” Hodges apologized to the trial court for his mistake. The trial court stated, “I can understand there was some confusion, … but he did violate the Cruz waiver. It was specific.” The trial court then imposed a sentence of three years.
After imposing the three-year sentence, the trial court asked the parties if there was “anything further.” Defense counsel and the People responded, “No.” Hodges stated, “Can I say something, your Honor?” The trial court did not respond to Hodges and concluded the proceedings.
On December 10, 2015, Hodges obtained a certificate of probable cause and filed a notice of appeal.
DISCUSSION
Hodges contends the trial court abused its discretion by relying on the unsworn statements from the prosecutor in imposing the three-year sentence.


I. Forfeiture
Acquiescence in the admission of evidence or failure to object to evidence in the trial court waives any objection on appeal. (Evid. Code, § 353; subd. (a).) Here, no objection was made at sentencing to the prosecutor’s comments that Hodges now challenges. Consequently, he has forfeited any challenge to the admission of the challenged statements. (People v. Clark (2016) 63 Cal.4th 522, 561-562.)
Furthermore, claims of error relating to sentences otherwise permitted by law, but imposed in a procedurally or factually flawed manner, are forfeited on appeal if not raised in the first instance in the trial court. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218-1219.)
II. No Abuse of Discretion
Hodges specifically was notified by the trial court that if he failed to appear on November 16, 2015, for sentencing, he would face an increased sentence of more than two years. Hodges acknowledged that he understood and agreed to this consequence. Hodges failed to appear on November 16, 2015, as ordered. Hodges was notified in open court of the consequence of failing to appear for the November 16, 2015 sentencing and he acknowledged and agreed to the consequence. The terms of the parties’ agreement were unambiguous. (People v. Shelton (2006) 37 Cal.4th 759, 767.)
When enforcing a Cruz waiver for failure to appear, the failure must be willful. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) Section 7, subdivision 1 defines willfulness: “The word ‘willfully,’ 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. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” Hodges had the right to call witnesses to testify at the sentencing hearing about any mitigating circumstances, including any circumstances regarding his violation of the Cruz waiver. (People v. Evans (2008) 44 Cal.4th 590, 598.)
Hodges called no witnesses, but he did offer unsworn statements of his own, although he objects to the prosecutor’s unsworn statements. A sentencing court may “consider responsible out-of-court or unsworn statements concerning the circumstances of the crime and/or the characteristics of the defendant relevant to sentencing.” (People v. Mockel (1990) 226 Cal.App.3d 581, 587.)
In essence, Hodges’s contention on appeal that the trial court abused its discretion amounts to a challenge to the trial court’s implicit finding that he willfully violated the Cruz waiver. This is so because an appellate court reviews judicial action, not judicial reasoning. If the result arrived at by the trial court is correct on any theory, we affirm. (People v. Dawkins (2014) 230 Cal.App.4th 991, 1004.) In People v. Rabanales (2008) 168 Cal.App.4th 494, the appellate court explained our task on review:
“‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.’ [Citation.] ‘Deferential review is particularly necessary when, as here, the factual determination depends in part on judging a witness’s credibility,’ and we must uphold such a determination if it is supported by substantial evidence. [Citation.] ‘We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact.’” (People v. Rabanales, supra, 168 Cal.App.4th at p. 509.)
This court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, whether the evidence is direct or circumstantial. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) If the circumstances reasonably justify the trier of fact’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. (Id. at p. 1054.)
Here, it is clear following a review of the record that there is sufficient evidence to support the trial court’s determination that defendant’s violation of the Cruz waiver was willful.
As discussed more fully above, Hodges was made aware he was required to appear for sentencing on November 16, 2015, during the November 2, 2015 hearing. No confusion is apparent in the record of the November 2, 2015 hearing about the date or time at which Hodges needed to appear. Nevertheless, Hodges failed to appear on November 16, 2015. Although Hodges argued at the December 4, 2015 hearing that he was confused about the date, the trial court was not obligated to accept Hodges’s assertions that this confusion was such as to warrant a finding the failure to appear was not willful.
The sentence imposed by the trial court was the sentence that was agreed to in order for Hodges to obtain a release on his own recognizance with a Cruz waiver. There is no abuse of discretion.
DISPOSITION
The judgment is affirmed.