P. v. Raub
Filed 3/7/07 P. v. Raub CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, Plaintiff and Respondent, v. STEVEN WAYNE RAUB, Defendant and Appellant. | C052641 (Super. Ct. No. P04CRF0392) |
On June 28, 2004, defendant Steven Raub stole a wallet belonging to a family member of his girlfriend, and used an ATM card that was in the wallet to make purchases totaling $544.38. In exchange for a sentence of two years and eight months in state prison, defendant pled no contest to theft of an access card and admitted having a prior serious felony conviction (strike).
When he entered his plea on January 6, 2006, defendant sought a 48-hour furlough from the El Dorado County jail todeal with a family matter. The trial court stated it was willing to furlough defendant in exchange for a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247 (hereafter Cruz)), which would permit the court to ignore the negotiated sentence and impose the maximum term of six years if defendant failed to return within the agreed upon time. Defendant expressly agreed to the courts condition. However, defendant was not released because the court discovered he was on a parole hold in Placer County.
On January 13, 2006, defense counsel asked whether the court would furlough defendant if he were to post bail in Placer County. Counsel stated the 48-hour pass was very important to defendant, and [i]t was the inducement for entering into the plea agreement. The court observed that if it released him on furlough without his posting bail in Placer County, then we . . . might not get the body back. Accordingly, the court gave defendant time to arrange bail, after which his furlough would begin. The court reiterated that if defendant failed to return on time from the furlough, the lid is off and the court could sentence him to the maximum term. Defendant replied, Yes, sir.
Defendant was unable to post bail required by Placer County, but the court learned it could give defendant an eight-hour pass without releasing [him] to the Placer County hold. Once again, the court told defendant that if he did not return at the appointed time, the sentencing lid is off. Defendant replied that he understood.
Thereafter, defendant failed to return at the appointed time, the court issued a bench warrant, and defendant was taken into custody.
At the sentencing hearing, the court found defendant had violated the terms of his release and, pursuant to defendants Cruz waiver, sentenced him to an aggregate state prison term of four years (the middle term doubled due to the prior strike conviction).
On appeal, defendant contends the matter must be remanded to afford him the opportunity to withdraw his plea because (1) the trial court unilaterally imposed the terms of his release after it accepted the plea agreement, which means the release provisions did not amount to a valid Cruz waiver, and (2) any Cruz waiver was unenforceable because defendant did not knowingly waive his rights under section Penal Code 1192.5. (Further section references are to the Penal Code.) We shall affirm the judgment.
DISCUSSION
Section 1192.5 provides that where a plea agreement is accepted by the defendant and the prosecutor, and is approved by the court, the defendant 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. . . .[1] If the court later withdraws its approval of the plea agreement, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. ( 1192.5.)
A defendant who fails to appear at sentencing does not lose the protection of section 1192.5, and the court cannot impose a higher punishment than stated in the plea agreement. (People v. Masloski (2001) 25 Cal.4th 1212, 1217 (hereafter Masloski); Cruz, supra, 44 Cal.3dat p. 1249; People v. Casillas (1997) 60 Cal.App.4th 445, 451-452.) However, a defendant can expressly waive his or her rights under section 1192.5, commonly called a Cruz waiver, as part of a plea bargain. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; Masloski, supra, 25 Cal.4th atpp. 1217, 1222-1223.) By agreeing to the plea bargains imposition of a specific sanction for nonappearance (People v. Casillas, supra, 60 Cal.App.4th at p. 452), the defendant waives his or her section 1192.5 right to withdraw the plea if sentenced to the increased term upon failure to appear. (People v. Vargas (1990) 223 Cal.App.3d 1107, 1112-1113.)
A Cruz waiver must be knowing and intelligent, and the parties must agree as part of the plea bargain to a specific sanction for defendants nonappearance. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; see also Masloski, supra, 25 Cal.4th at pp. 1219, 1222.) It is not sufficient if, at the time of the plea proceedings, the trial court unilaterally imposes an additional condition providing a sanction for nonappearance. (Masloski, supra, 25 Cal.4th at pp. 1222-1223; People v. Casillas, supra, 60 Cal.App.4th at p. 452.)
Here, defendant sought to be released from jail prior to sentencing in order to attend to family matters. Before taking defendants plea, the court, defense counsel, and the prosecutor discussed releasing him with a Cruz waiver. Defendant entered his plea and expressly agreed that if the court released him for 48 hours and he failed to return at the appointed time, the court could sentence him up to the maximum term of six years, rather than the negotiated two years and eight months. When problems arose with releasing defendant due to the Placer County hold, defense counsel asked the court whether it would release defendant if he posted bail. Counsel stated the furlough was the inducement for entering into the plea agreement. At the sentencing hearing, defense counsel acknowledged that defendant had entered a Cruz waiver.
The record amply demonstrates that the trial court did not unilaterally engraft additional conditions to defendants plea agreement as a judicial afterthought; rather, defendant entered a Cruz waiver as part of the plea agreement. (Masloski, supra, 25 Cal.4th at p. 1223.)
Defendant also contends that even if he entered a Cruz waiver, it is void because the trial court never advised him, pursuant to section 1192.5, of his right to withdraw his plea if the court rejected the plea agreement and did not sentence him in accordance with its terms.
The written plea agreement states: I understand if the Court determines at any time before I am sentenced that the negotiated plea is not in the interests of justice, the Court can cancel my plea, re-enter my not guilty plea and set this case for trial. Although this is not an advisement of the right to withdraw a guilty plea if the court rejects the plea agreement before sentencing, it has the same effect. It frees the defendant from the terms of plea agreement if the court retracts its approval.
In any event, even if the advisement had been insufficient under section 1192.5, this was of no consequence, because the superior court did not disapprove the plea agreement. (Masloski, supra, 25 Cal.4th at p. 1223.) After defendant failed to return from the furlough at the appointed time, the court sentenced him to a term of four years in prison in accordance with the terms of the plea agreement, which included the Cruz waiver. The provisions of section 1192.5 that permit a defendant to withdraw his or her plea if the court withdraws its approval of the plea agreement were not implicated, because the court adhered to the terms of the plea agreement by sentencing defendant to a prison term that did not exceed (and in fact was less than) the maximum sentence authorized
by the plea agreement in the event that defendant failed to appear . . . . (Masloski, supra, 25 Cal.4th at pp. 1223-1224.)
DISPOSITION
The judgment is affirmed.
SCOTLAND, P.J.
We concur:
HULL, J.
ROBIE , J.
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[1] Section 1192.5 states in part: 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.
