Filed 5/22/18 P. v. Miller CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SHANE D. MILLER,

Defendant and Appellant.
H043845
(Santa Clara County
Super. Ct. No. C1508363)

Defendant Shane D. Miller appeals following his no contest plea to inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)). He asserts that the trial court erred when it sentenced him to a greater term than what he had agreed to as part of his plea bargain.
We reverse the judgment and remand the matter for the trial court to impose the sentence agreed to in the plea bargain, or to allow defendant to withdraw his no contest plea pursuant to section 1192.5.



I. STATEMENT OF THE CASE
On September 14, 2015, defendant was charged with attempted murder (§§ 664, subd. (a), 187; count one), inflicting corporal injury on a spouse with personal infliction of great bodily injury (§§ 273.5, subd. (a); 12022.7, subd. (e); count two), and dissuading a witness (§ 136.1, subd. (c)(1); count three).
On March 9, 2016, the parties entered into an agreement in which defendant would plead no contest to count two, inflicting corporal injury on a spouse (§ 273.5, subd. (a)), and counts one, attempted murder (§§ 664, subd. (a), 187) and three, dissuading a witness (§ 136.1, subd. (c)(1)), would be dismissed.
The prosecutor stated the terms of the plea agreement on the record. In exchange for his plea, defendant would be placed on three years of formal probation and serve a one-year jail term. In addition, the personal infliction of great bodily injury enhancement (§ 12022.7, subd. (e)) as to count two, and inflicting corporal injury on a spouse (§ 273.5, subd. (a)), would be stricken, and the court would consider reducing count two to a misdemeanor pursuant to section 17, subdivision (b) after defendant had successfully completed one year of probation. The prosecutor further stated: “[t]he understanding is that [defendant] will be released on this case today with credit for time served.”
The court asked defense counsel if his understanding of the agreement was the same as that stated by the prosecutor. The court confirmed with defendant that he had read and understood the advisement of rights, waiver and plea form. The court noted that because defendant was unable to initial and sign the form, defense counsel had initialed and signed the form for him with his consent. The form contained a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1249 (Cruz), allowing the court to impose a greater sentence if defendant failed to appear at a future court date. The waiver states: “I understand if I fail to appear without reasonable justification for future court dates, I will lose the benefit of any plea agreement. The sentencing judge could then impose a different or greater punishment up to the maximum possible sentence, and I would not be allowed to withdraw my plea because of that different or greater punishment.”
The court accepted defendant’s no contest plea to count two, inflicting corporal injury on a spouse (§ 273.5, subd. (a)). Following defendant’s change of plea, the court continued the matter to May 6, 2016 for sentencing. After setting the date, the court stated, “in light of the number of credits that [defendant] already has towards the intended disposition of one year as to this case, the Court is going to release [defendant] today as to this matter on his own recognizance.” The court then told defendant, “you’re going to need to sign a promise to appear before you leave court.” Defendant’s promise to appear contained a condition that defendant would “not depart this State without permission of the Court.” The court listed the terms of the promise to appear agreement and defendant agreed to the terms.
The original sentencing date of May 6, 2016 was first continued to July 1, 2016, and again to July 15, 2016. Defendant was present with his attorney at all of the sentencing dates. On July 15, 2016, however, the court learned that defendant had gone to Nebraska to take care of outstanding warrants without the court’s permission.
The court found that defendant’s travel to Nebraska without permission violated the Cruz waiver in the plea agreement. The court stated that in light of the fact that defendant left the state, “neither the Court nor the district attorney must comply with the full terms of the plea agreement in this case.”
Rather than granting defendant probation and ordering him to serve one year in county jail pursuant to the plea agreement, the court denied probation and imposed a three-year prison term with credit for time served. The court also noted that it would no longer consider reducing the charge in count two to a misdemeanor pursuant to section 17, subdivision (b).
Defendant filed a timely notice of appeal.
II. DISCUSSION
Defendant argues that the trial court erred when it imposed a sentence that was greater than what was agreed to as part of the plea bargain.
In reviewing a challenge involving a negotiated plea agreement, we apply the standard of review applicable to contracts generally. (People v. Segura (2004) 124 Cal.App.4th 340, 344.) “ ‘[T]he “interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.” [Citations.]’ [Citations.]” (In re Ricardo C. (2013) 220 Cal.App.4th 688, 696.)
“Under section 1192.5, if a plea agreement is accepted by the prosecution and approved by the court, the defendant ‘cannot be sentenced on the plea to a punishment more severe than that specified in the plea.’ ” (People v. Masloski (2001) 25 Cal.4th 1212, 1217 (Masloski).) Section 1192.5 states: “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 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.”
In Cruz, supra, the California Supreme Court held that a defendant who is released from custody pending sentencing, but fails to appear at sentencing, does not lose the protection of section 1192.5. (Cruz, supra, 25 Cal.4th at pp. 1253-1254.) However, the court stated: “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.” (Id. at p. 1254, fn. 5.)
Plea agreements often include Cruz waivers, allowing a court to impose a sentence in excess of the agreed-upon term if certain conditions occur, such as a defendant failing to appear at a further court date. (Masloski, supra, 25 Cal.4th at p. 1222.) Here, as part of his plea agreement, defendant executed a Cruz waiver. Defendant also executed a separate, “written agreement to appear,” pursuant to section 1318 as part of his release from custody pending sentencing. The conditions of release included the provision that he would not leave the state without court permission.
The Prosecution argues that defendant’s agreement to terms of release on his own recognizance was actually part of his plea bargain. Consequently, when defendant violated the terms by leaving the state to travel to Nebraska without permission, the court had the option of sentencing defendant to a greater term without allowing defendant to withdraw his no contest plea.
The Prosecution cites People v. Casillas (1997) 60 Cal.App.4th 445 (Casillas) and Masloski, supra, to support its argument. In Casillas, the defendant agreed to plead no contest to drug charges for a maximum sentence of ninety days in county jail. However, the plea agreement provided that in the event defendant failed to appear for sentencing, the “bargained-for sanction” would be the imposition of a term of three years in prison. The Court of Appeal held that the defendant’s failure to appear allowed the trial court to impose the three-year term, because it was a specific sanction that the parties agreed to as part of the plea bargain. (Id. at p. 453.) “[W]hen 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 p. 452, italics added.)
Similarly, in Masloski, the Supreme Court considered whether the imposition of a greater term because the defendant failed to appear at sentencing was in accord with the terms of the plea bargain. There, the defendant agreed to plead no contest to a drug possession charge for a sentence of 32 months in state prison. The court sought an agreement from the defendant that if she failed to appear for sentencing, it could sentence her to a maximum term of six years in state prison. While the court identified it as a “Cruz waiver,” the court did not advise the defendant of her right to withdraw her plea in the event the court did not approve of the plea bargain. The Supreme Court held that the trial court erred “when it accepted defendant’s plea of no contest [and] failed to advise her as required by section 1192.5 of her right to withdraw her plea in the event the court subsequently disapproved the plea agreement.” (Masloski, supra, 25 Cal.4th at p. 1223). However, the Supreme Court found “this error [to be] of no consequence, because the superior court did not disapprove the plea agreement. Rather, when defendant failed to appear on the date set for sentencing, she was sentenced to a term of four years in prison, in accordance with the terms of the plea agreement.” (Id. at pp. 1223-1224.) Of particular importance to the court in Masloski was the fact that “defendant clearly understood that part of the agreement was that her sentence could be increased in the event she failed to appear for sentencing.” (Id. at p. 1223, italics added.)
Unlike Casillas and Masloski, here, the question is not whether defendant agreed to be subject to a greater term if he failed to appear at sentencing. Defendant did agree to this, and had he failed to appear for sentencing the court rightfully could have imposed an increased sentence. The issue here is whether defendant expressly agreed to be subject to a greater term if he violated the terms of release on his own recognizance by leaving the state. The record here does not demonstrate such an express agreement.
A negotiated plea agreement is a form of contract. (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).) A contract must be interpreted so as to give effect to the mutual intention of the parties. (Ibid., citing Civ. Code, § 1636.) Such mutual intention “ ‘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]’ ” (Shelton, supra, 37 Cal.4th at p. 767.)
There is nothing in the record showing that the parties intended that defendant’s Cruz waiver would include the terms of defendant’s release on his own recognizance. The fact that the court obtained the Cruz waiver and defendant’s agreement to terms of release during the same proceeding does not demonstrate that the Cruz waiver incorporated the terms of release. Indeed, the record shows that it was not until after the terms of the plea bargain were stated, defendant entered his plea and the matter was continued for sentencing that the court first informed defendant that he was required to sign a “promise to appear” before he would be released from custody. In reference to defendant’s “written promise to appear,” the court explained: “[s]o this indicates that you will appear at all times and places as ordered by the Court . . . .”
Moreover, even if the terms of defendant’s release were part of the plea agreement, they were not by default also part of the Cruz waiver. For example, in addition to the condition that defendant not leave the state without permission, the terms of release included six other conditions. One of those conditions was that defendant “obey all conditions imposed by the Court or magistrate.” The court ordered defendant to contact the probation department within three days of release. If defendant had not contacted probation within three days, he would have violated the term of release that he obey all conditions imposed by the court. However, defendant would not have also violated his Cruz waiver, which included only the understanding that the court could impose a greater punishment if he failed to appear at future court dates.
Defendant violated the terms of release on his own recognizance when he left California and traveled to Nebraska. This gave the court the right under section 1192.5 to indicate that it would not honor the terms of the plea agreement. Defendant would then have had the right to withdraw his plea or not.
However, defendant did not violate his Cruz waiver, because he did not fail to appear at any of the three subsequent court dates following his change of plea. Because the court imposed a greater sentence than what was agreed to in the negotiated plea agreement, defendant should have been permitted to withdraw his plea. (§ 1192.5.)
III. DISPOSITION
The judgment is reversed and the matter is remanded for the trial court to impose the sentence agreed to in the plea bargain, or to allow defendant to withdraw his no contest plea pursuant to section 1192.5.








_______________________________
Greenwood, P.J.




WE CONCUR:





_______________________________________________
Bamattre-Manoukian, J.











______________________________________
Grover, J.