Filed 5/16/22 P. v. Kiner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT*

APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge.

Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Thomas Kiner pled no contest to assault while confined in state prison and admitted a prior felony “strike” conviction within the meaning of the “Three Strikes” law. Defendant also entered a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), whereby he was permitted to remain free of custody until his sentencing and the trial court indicated that, if defendant obeyed all laws and appeared for sentencing, it would impose a stipulated term of five years rather than the then maximum exposure of 13 years. Defendant failed to appear for sentencing. Roughly two years eight months after the date set for sentencing, defendant appeared. The trial court imposed the upper term of 12 years in prison. On appeal, defendant contends that (1) his sentence must be vacated because he was denied a jury trial (or alternatively, a hearing and opportunity to present evidence) on whether he willfully violated the Cruz waiver and (2) his sentence must be vacated and the matter remanded in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b). The People disagree as to the first issue but concede the second issue. We vacate defendant’s sentence and remand for resentencing consistent with Senate Bill 567. In all other respects, the judgment is affirmed.

PROCEDURAL SUMMARY

On March 9, 2016, the Kern County District Attorney filed an information charging defendant with assault by force likely to produce great bodily injury while

incarcerated in state prison (Pen. Code, § 4501, subd. (b);[1] count 1). The information further alleged that he personally inflicted great bodily injury (§ 12022.7), had suffered a prior felony strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and had served a prior prison term (§ 667.5, former subd. (b)).

On July 26, 2017, defendant pled no contest on count 1 and admitted the prior strike conviction and prior prison term allegations. Pursuant to the plea agreement, the personal infliction of great bodily injury allegation was dismissed. The court also released defendant pursuant to a Cruz waiver, indicating it would impose a five-year term of imprisonment (the low term on count 1, doubled due to the prior strike conviction, plus a one-year prior prison term enhancement) if defendant returned for sentencing on September 26, 2017, and did not commit any new offenses. Defendant was advised that if he violated the Cruz waiver he could be sentenced to 13 years in prison. Defendant verbally acknowledged that he understood the terms of the plea and Cruz waiver. Defendant generally waived his right to a jury trial but did not explicitly waive his right to a jury trial for any violation of the Cruz waiver.

On September 26, 2017, defendant failed to appear at the hearing scheduled for sentencing and the trial court issued a bench warrant but held the warrant until September 28, 2017.

On September 28, 2017, defendant again failed to appear and the trial court released the hold on the bench warrant. On January 31, 2018, the trial court issued a no‑bail bench warrant.

On May 25, 2021, defendant appeared in custody.

On June 22, 2021, the trial court held a hearing to determine whether defendant should be permitted to withdraw his no contest plea and, if so, whether a conflict existed such that the trial court should appoint substitute counsel.[2] It determined that there was no legal basis for defendant to withdraw his no contest plea. On the same date, the trial court struck the section 667.5, former subdivision (b) enhancement allegation and sentenced defendant to a total term of 12 years as follows: on count 1, 12 years (the upper term of six years doubled due to the prior strike conviction). The trial court did not explicitly find that defendant had willfully violated the Cruz waiver, nor did it explicitly find that the circumstances in aggravation justified imposition of a sentence in excess of the middle term.

On June 23, 2021, defendant filed a notice of appeal.

FACTUAL SUMMARY[3]

Hearing on Defendant’s Motion to Withdraw Plea

On June 22, 2021, the trial court permitted defendant to explain why he believed he should be permitted to withdraw his plea. Defendant told the court that his plea was made “under duress” because he had been transferred from prison to jail for trial, then his trial was continued and transferred to another courtroom. When the case was transferred, defendant was appointed new counsel, who sought a continuance to prepare for trial over defendant’s objection. That attorney was relieved as counsel and Richard Rivera, who represented defendant at the change of plea hearing and when he appeared again in 2021, was appointed. Defendant felt as though he had been “thrown around” between attorneys. At about the same time, defendant’s aunt, with whom he was very close, had heart surgery. Because he wanted to see his aunt, he accepted the plea agreement because he believed that the Cruz waiver was the only way for him to see her: “They said I could go home for a couple months and I took it.” Had his aunt not been ill, he would have gone to trial. Defendant explained that he had written numerous letters to prior counsel detailing his intent to go to trial. Rivera acknowledged that defendant told him he would accept a plea bargain if it included a Cruz waiver so he could see his aunt. Rivera advised defendant of the consequences of a Cruz waiver violation.

Further, defendant explained that he believed that his prior strike conviction was “constitutionally invalid.” He faulted Rivera for failing to have the prior strike conviction allegation dismissed. Rivera responded to defendant’s concern regarding the prior strike conviction. He explained that he obtained the case files regarding the prior strike conviction and was convinced that it was not invalid prior to defendant’s entry into the plea bargain.

On that record, the trial court found no basis for defendant to withdraw his plea and no basis to remove Rivera as counsel.

Sentencing Hearing

No discussion was held regarding whether defendant’s violation of the Cruz waiver was willful. The parties both argued for sentences in excess of the bargained-for term of imprisonment. Defendant’s counsel appears to have acknowledged the Cruz waiver violation. He argued that the trial court should impose an eight-year term of imprisonment which he deemed “substantial punishment for a violation of the Cruz waiver.” Prior to pronouncement of sentence, defendant was permitted to speak. He reiterated that he thought his “plea was a result of duress at the time and also that [his] prior [strike] conviction [was] … constitutionally invalid ….” Without expressly finding that defendant’s violation of the Cruz waiver was willful, it imposed the upper term. It did not provide the reasoning for its imposition of the upper term.

DISCUSSION

I. The Cruz Waiver

Defendant argues the trial court erred in imposing the upper term without a jury trial on defendant’s willfulness in violating the Cruz waiver. The People disagree, arguing that defendant waived any right to a jury trial on violation of the Cruz waiver and forfeited this issue on appeal by failing to request a hearing on the voluntariness of his violation at the trial court level. We agree with the People. Defendant’s Cruz waiver implicitly included a waiver of the right to a jury trial on violations of the Cruz waiver and the trial court’s implicit finding that defendant’s failure to appear was willful was supported by substantial evidence.

A. Relevant Legal Principles

Section 1192.5 provides that a trial court may not impose punishment more severe than that agreed upon by the parties at the time of entry of plea without giving notice to defendant and providing him the ability to withdraw his plea. At entry of plea, the court must advise defendant that (1) its approval (of the plea agreement by accepting the plea) is not binding, (2) it may withdraw its approval in the light of further consideration of the matter, and (3) in such cases the defendant shall be permitted to withdraw his plea if he desires to do so. (§ 1192.5, subd. (c).)

The Cruz decision permits a defendant to enter a limited waiver of section 1192.5 with the agreement of both parties to the plea, and agree to a sentence in excess of the term that was bargained for if he or she willfully fails to appear for sentencing or violates other agreed-upon conditions. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) A defendant may expressly agree to a greater sentence as a sanction for engaging in certain behavior as long as his waiver is contained in the plea bargain itself. (People v. Masloski (2001) 25 Cal.4th 1212, 1221–1222; People v. Vargas (1990) 223 Cal.App.3d 1107, 1113.) Therefore, if a defendant agrees to a Cruz waiver and willfully fails to comply with the terms of the agreement (for instance, by failing to appear at the sentencing hearing) the trial court may impose a term of imprisonment greater than the bargained-for term without permitting the defendant to withdraw his plea. (Cruz, at p. 1254, fn. 5; Vargas, at pp. 1112–1113 [a defendant may agree to imposition of a specific greater term in the event of his nonappearance]; see Masloski, at pp. 1219–1223; People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.) A defendant acts “ ‘willfully’ ” if he knows what he is doing and intends to do it. (§ 7, subd. 1; People v. Atkins (2001) 25 Cal.4th 76, 85–86.) While Cruz specified that a defendant must act willfully for a greater sentence to be imposed based on his or her failure to appear (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5), it did not specify how willfulness would be determined.

A Cruz waiver is permitted as long as it is entered in a knowing and voluntary fashion. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; see People v. Vargas (2007) 148 Cal.App.4th 644, 649 (Vargas); People v. Mosby (2004) 33 Cal.4th 353, 361 [waiver of statutory rights must be voluntary and intelligent].)

A trial court must find that a defendant’s failure to appear was willful by a preponderance of the evidence. (People v. Rabanales (2008) 168 Cal.App.4th 494, 505 (Rabanales); Vargas, supra, 148 Cal.App.4th at p. 652.) We review the trial court’s determination for substantial evidence. (Rabanales, supra, 168 Cal.App.4th at p. 509.) In doing so, “[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.)

B. Right to a Jury Trial on Whether Defendant Willfully Violated the Cruz Waiver

Defendant contends that, pursuant to the Sixth Amendment of the United States Constitution, he was entitled to a jury trial on willfulness of his violation of the Cruz waiver. He characterizes the willfulness of his violation as a “fact that exposes [him] to a greater potential sentence” for purposes of the requirement of Cunningham v. California (2007) 549 U.S. 270, 281, and People v. Towne (2008) 44 Cal.4th 63, 74, that such facts be proved to a jury beyond a reasonable doubt. Defendant is incorrect; Cunningham and Towne do not control in this situation. Cunningham addressed California’s determinate sentencing scheme as it existed prior to 2007.[4] (See People v. Black (2007) 41 Cal.4th 799, 808, fn. 2.) It concluded that a sentence exceeding the statutory maximum—the greatest sentence that can be imposed based on the offense, “ ‘without any additional findings’ ”—can only be imposed if the required additional findings (excluding prior conviction findings) were made by a jury. (Cunningham, at p. 275.) Before 2007, the middle term was the statutory maximum; from 2007 to the end of 2021, the upper term was the maximum sentence. Based on defendant’s admission of his offense and the prior strike conviction, the statutory maximum at the time of defendant’s sentencing was a 12‑year term.[5] The sentence was dictated by the terms of the plea agreement and did not exceed the statutory maximum. For that reason, Cunningham does not apply.

As the People correctly point out, the court in Rabanales, supra, 168 Cal.App.4th at pp. 501–502, reached the same conclusion on similar reasoning:

“A violation of a [Cruz][6] waiver is a breach of the [plea] agreement. A trial court’s determination as to whether there was a breach of the agreement is not the same as making a finding in aggravation or a discretionary sentencing choice as contemplated by Cunningham …. [The] [d]efendant agreed the trial court could impose one of two specified sentences subject to his compliance with various conditions of release, so the trial court had no discretion to impose a sentence based on aggravating or mitigating factors. It was limited by the plea agreement to resolve any disputed factual contentions as to whether there was compliance with the conditions of release set forth in the plea agreement.” (Rabanales, supra, 168 Cal.App.4th at p. 502.)

We agree with the Rabanales court; a trial court’s finding that a defendant violated a Cruz waiver is not a Sixth Amendment violation.

Even assuming a right to a jury trial normally extended to proof that a defendant willfully violated a Cruz waiver, the plea agreement in this case reflected a general waiver of defendant’s right to a jury trial and no reservation of any right to a jury trial for violations of the Cruz waiver. As the court in Rabanales noted,

“ ‘[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, ‘f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.’ [Citations.]” [Citation.] “The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]” ’ ” ([i]Rabanales, supra, 168 Cal.App.4th at pp. 502–503.)

While the plea agreement did not expressly provide that defendant waived any right to a jury trial on any violation of the Cruz waiver, it contained a general waiver of the right to a jury trial: “I give up my right to a trial by judge or jury.” No part of the plea agreement suggests a right to a jury trial on a Cruz violation that defendant sought to preserve. Indeed, the record is devoid of any request for a jury trial on violation of the Cruz waiver or any conduct by the parties that suggested that they anticipated such a right. (See Rabanales, supra, 168 Cal.App.4th at pp. 507–508 [“[m]ost tellingly,” the parties conduct subsequent to entry of the plea agreement suggested that neither party nor the court anticipated preservation of the right to a jury trial on violations of the Cruz waiver].) Accordingly, even assuming a right to a jury trial on violation of a Cruz waiver exists, the language of the plea agreement and the parties’ subsequent conduct convince us that the preservation of that right was not anticipated by the parties in entering into the plea agreement. No error resulted from defendant not being afforded a jury trial on whether he violated the Cruz waiver.

D. The Willfulness Finding

Next, defendant contends that the trial court violated his due process rights when it denied him an ability to present evidence and call witnesses regarding the willfulness of his Cruz waiver violation. He also contends that the record does not contain substantial evidence to support a finding that he willfully violated the Cruz waiver.

As a threshold matter, defendant’s arguments are forfeited. It is well settled that constitutional, as well as statutory, rights may be waived or forfeited by failure to make a timely assertion of the right. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Collins (2001) 26 Cal.4th 297, 305; People v. Simon (2001) 25 Cal.4th 1082, 1097.) Neither defendant nor his counsel requested a hearing on the willfulness of his failure to appear and his counsel argued for a sentence in excess of the bargained-for five‑year term, apparently conceding the willfulness of defendant’s Cruz waiver violation. Specifically, his counsel made the following statement at sentencing: “[T]he defense requests that the Court impose the mid[]term[,] double[d]. That would result in an eight‑year sentence which is substantially more than the agreed-upon disposition. And it’s a substantial punishment for a violation of the Cruz waiver. And I would submit on it.” At the opening of the hearing, the prosecutor commented that defendant “absconded and failed to appear[,]” had failed to appear for an “egregious length of time” and had “recently been picked up on that failure to appear.” Nevertheless, defendant’s only objections when given an opportunity to comment at the same hearing were to the voluntary nature of the entry of the plea and to the validity of his prior strike conviction.

Defendant has therefore failed to preserve any objection to the sufficiency of evidence in support of, or the method of, the trial court’s willfulness finding.[7]

II. Senate Bill 567

Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b)(2), such that it now provides, “[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) A trial court is permitted to rely upon a certified record of conviction to determine prior criminality for purposes of sentencing without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).) Defendant was sentenced to the upper term of 12 years and there is no indication in the record that the circumstances in aggravation relied upon by the trial court were proved beyond a reasonable doubt, admitted by defendant, or established by findings of prior criminality based upon certified records of conviction. The parties agree, as do we, that Senate Bill 567 is retroactive to cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [remanding for resentencing under another ameliorative amendment to section 1170 by Senate Bill 567]) and defendant’s sentence is not yet final on appeal. Therefore, defendant is entitled to resentencing under Senate Bill 567.

DISPOSITION

Defendant’s sentence is vacated, and the matter is remanded to the trial court for resentencing, and any required factfinding, consistent with Senate Bill 567. In all other respects, the judgment is affirmed.

* Before Peña, Acting P. J., Smith, J. and Meehan, J.

[1] All further statutory references are to the Penal Code.

[2] The trial court referred to the hearing as a Smith (People v. Smith (1993) 6 Cal.4th 684) hearing. The type of hearing the court held is more commonly referred to as a Marsden (People v. Marsden (1970) 2 Cal.3d 118) hearing.

[3] Because defendant raises only sentencing issues, the facts underlying the offenses are not relevant and are omitted from this opinion.

[4] Prior to 2007, former section 1170 limited the trial court’s discretion in making trifecta sentencing determinations. It directed: “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (§ 1170, former subd. (b).) In Cunningham the middle term was therefore the statutory maximum, beyond which a trial court could not impose a sentence without facts proved to a jury or admitted by the defendant. The Legislature subsequently amended the Penal Code to specify that the statutory maximum was the upper term. (§ 1170, former subd. (b); Stats. 2007, ch. 3, § 2.) Again, effective January 1, 2022, the Legislature modified section 1170, subdivision (b), to again set the middle term as the statutory maximum, beyond which a trial court could not impose a sentence without facts proved to a jury or admitted by the defendant. (§ 1170, subd. (b)(1), (2); Stats. 2021, ch. 731, § 1.3.)

[5] At the time of defendant’s sentencing, the admitted one-year prior prison term enhancement could not be imposed due to the modifications brought about by Senate Bill No. 136 (2019−2020 Reg. Sess.) to section 667.5, subdivision (b), that eliminated prior prison term enhancements for any prison term not served for a sexually violent offense. Defendant’s prior prison term was not served for a sexually violent offense.

After defendant’s sentencing, Senate Bill 567 limited the trial court’s discretion to impose the upper term as we discuss, post.

[6] The Rabanales court referred to the stipulation that a defendant will receive a higher sentence if he or she does not return for sentencing and the waiver of the right to withdraw the plea in the event of the imposition of the higher sentence as a “ ‘Vargas waiver,’ based on the approval of a similar plea agreement in People v. Vargas[, supra,] 223 Cal.App.3d 1107 ….” (Rabanales, supra, 168 Cal.App.4th at p. 499.) It is effectively the same as a Cruz waiver.

[7] If we were nevertheless to reach the sufficiency of the evidence to support the willfulness finding, we would find substantial evidence in support. In analogous bail forfeiture cases, a defendant’s failure to appear “is presumptively without sufficient excuse.” (People v. Beverly Bail Bonds (1982) 134 Cal.App.3d 906, 911.) It is a defendant’s burden to prove that his failure to appear was not willful (id. at pp. 911–913) by a preponderance of the evidence (Rabanales, supra, 168 Cal.App.4th 494, 505; Vargas, supra, 148 Cal.App.4th at p. 652). We review the trial court’s determination for substantial evidence. (Rabanales, supra, 168 Cal.App.4th at p. 509.) In doing so, “[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order.” (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th 359, 390.)

In the record before us, defendant was informed of his obligation to return for sentencing; after he failed to appear, the bail bondsman’s agents called defendant’s telephone number and left a message regarding the outstanding warrant, contacted his family and friends conveying the same message, viewed social media pages of his family and friends, and visited his listed residences in search of him; and when defendant was returned to custody, he acknowledged that he knew he had to return for sentencing and offered no explanation for his two-year eight-month absence. On that record, the trial court’s implied finding of willfulness was supported by substantial evidence. Based on the evidence in the record, we would also find any due process violation for denial of a hearing on the willfulness of his failure to appear harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)