P. v. Johnson

Filed 3/8/07 P. v. Johnson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

Anthony Wayne Johnson appeals from judgment entered following his no contest plea to one count of selling or transporting cocaine (Health & Saf. Code,  11352, subd. (a)). He was sentenced to prison for 23 years and contends the trial court had no authority to impose a more severe sanction for nonappearance than that which was agreed to in the plea agreement by the parties. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Appellant was charged by information with one count of selling or transporting cocaine, in violation of Health and Safety Code section 11352, subdivision (a). It was further alleged that he had suffered five prior convictions and served prison terms within the meaning of Penal Code section 667.5, subdivision (b). Additionally, these convictions were alleged within the meaning of Health and Safety Code section 11370.2, subdivision (a).

On October 6, 2005, appellant pled no contest to the charged crime and the alleged prior convictions. Prior to his plea, the bargains terms were explained, that appellant was going to plead to selling or transporting cocaine and be sentenced to the upper term of five years. He was advised that his potential maximum sentence was 23 years. He indicated he understood. It was also explained that there would be a Cruz[1] waiver. That he was going to plead that day and return to court for sentencing on another date and if he did not show up, his plea [would] remain, but the agreed-upon five years doesnt remain. You could be looking at up to 23 years. Appellant indicated he understood. Before appellant admitted his prior convictions, the court stated they would be stricken for the purposes of sentencing, if he shows up; if he does not show up, it will be imposed.

With the agreement of the parties, the court picked November 7, 2005 for sentencing, and appellant waived his right to be timely sentenced. The court ordered appellant to return on November 7, admonishing him if you dont show up for sentencing on November 7th, which you have been ordered to return, you will get the 23 years. Appellant indicated he understood.

On January 23, 2006, appellant returned to court. The court summarized the previous proceedings, that appellant had pled to the entire sheet and admitted all the priors on the sheet and the special allegations. And he asked to be left on bond and he requested probation and a sentencing date for November 7, 2005. . . . [The court] took an Arbuckle[2] and Cruz waiver to let Judge Cassani sentence him and he waived time. In exchange for that, he was supposed to do five years. [] The Cruz waiver says if he doesnt show up for sentencing that he will be sentenced to the sheet. On November 7 Judge Cassani issued a bench warrant because he failed to appear for sentencing. Appellant was arrested on December 30 for a separate offense and was in custody. He came into Judge Cassanis court and Judge Cassani sent it [to this court] to sentence.

When defense counsel advised the court that appellants father had died and the funeral was on November 4, the court responded that appellant should still have been in court on November 7. The court recalled, the whole idea of letting [appellant] be free during that period of time . . . was because he wanted to take care of family matters. The court stated it did not understand why he wasnt here to surrender himself on November 7th or thereafter. So he had to be brought in here.[3]

Appellant was sentenced to a total of 23 years consisting of the upper term of five years for count one, three consecutive one-year terms for the prior prison term enhancements under Penal Code section 667.5 and five consecutive, three‑year terms for the enhancements pursuant to Health and Safety Code section 11370.2.

DISCUSSION

Appellant contends the court had no authority to impose a more severe sanction for nonappearance than that which was agreed to in the plea agreement by the parties. His claim is not supported by the record.

Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony . . . [with exceptions not applicable here], the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it. [] Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [] 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 hearing on the application for probation or pronouncement of judgment, withdraw its approval in the 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. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. [] If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available. [] If the plea is withdrawn or deemed withdrawn, it may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals. (Pen. Code,  1192.5.)

In People v. Cruz (1988) 44 Cal.3d 1247, [our Supreme Court] interpreted the provision of [Penal Code] section 1192.5 that permits a defendant who pleads guilty or nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. [The Court] held that this provision applies even if the defendant fails to appear for sentencing. [The Court] noted . . . however, that a defendant could expressly waive his or her rights under [Penal Code] section 1192.5 at the time the plea was entered. [Citation.] (People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2.)

In People v. Casillas (1997) 60 Cal.App.4th 445, 452, the court delineated principles to aid in the analysis of whether a defendant should be permitted to withdraw a plea and stated: [W]hen 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. (Id. at pp. 451-452, cited with approval in People v. Masloski, supra, 25 Cal.4th at pp. 1222-1223.)

In the real world, plea bargaining is a multilateral process, involving the trial court as well as the parties. In the universe of plea-bargained cases, judicial involvement may occur anywhere along a continuum, from the outset or only after the parties have reached a tentative agreement. At some point, the judge must approve the deal. This being so, to imply the bargain is in any sense complete before the judge consents to it is simply nonsensical. In plea negotiations, the distinction between the second and third situations discussed above . . . may be subtle indeed. The ultimate question will be not whether the bargain occurred in a hermetically sealed environment from which the judge was excluded, but whether the return provision resulted from the give-and-take of plea bargaining or was a judicially imposed afterthought. (People v. Casillas, supra, 60 Cal.App.4th at p. 452, fn. omitted.)

In the present case, prior to the completion of the plea negotiations, the parties agreed to the sanction for appellants nonappearance at sentencing. The sanction that the trial court would impose the 23-year sentence if appellant failed to appear as ordered was the result of the give-and-take of plea bargaining and not a judicially imposed afterthought. (People v. Casillas, supra, 60 Cal.App.4th at p. 452.)

Additionally, appellant claims the trial court failed to advise him pursuant to Penal Code section 1192.5 of his right to withdraw his plea and because he did not waive that right, the court was without authority to impose a more severe sanction for nonappearance than that which was agreed to in the plea agreement . . . . Apart from whether this issue requires a certificate of probable cause as claimed by respondent, the trial courts failure was of no consequence. The superior court did not disapprove the plea agreement but rather sentenced appellant in accordance with the terms of the agreement when he failed to appear on the date set for sentencing. (See People v. Masloski, supra, 25 Cal.4th at pp. 1223-1224.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1]People v. Cruz (1988) 44 Cal3d 1247.

[2]People v. Arbuckle (1978) 22 Cal.3d 749.

[3] Defense counsel explained, I think he went out of control. The police report says he was abusing drugs.