Filed 9/22/17 P. v. Rome CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. BRIAN ANTHONY ROME, Defendant and Appellant. |
A149112
(Solano County Super. Ct. Nos. FCR317486, FCR316682)
|
Defendant Brian Anthony Rome appeals from the trial court’s imposition of a sentence of four years in county jail and two years on mandatory supervision, rather than three years in county jail and three years on mandatory supervision as specified in his plea agreement. The court imposed the sentence after ruling that defendant willfully failed to appear for sentencing. Defendant contends we must reverse the court’s rulings because there is no evidence that his failure to appear was willful. We disagree and affirm the court’s rulings.
BACKGROUND
In December 2015, the Solano County District Attorney filed two informations against defendant. In the first, the district attorney alleged in two separate counts that defendant engaged in felony possession of methamphetamine for sale and transported methamphetamine for the purpose of sale or transfer.
In the second information, the district attorney alleged that defendant had committed six felonies: infliction of corporal punishment on his girlfriend, L.G.; battery of L.G., causing serious bodily harm; unlawful taking of a vehicle; receipt of stolen property; possession of methamphetamine for sale; and transportation of methamphetamine.
We briefly summarize the facts underlying each case.[1] In the first, police on August 21, 2015, observed defendant come out of a hotel room, get into a car and talk with the driver, who police later stopped and found had 28.28 grams of methamphetamine in her possession. Defendant was taken into custody. He was found to possess 1.29 grams of methamphetamine and he admitted selling methamphetamine to the driver. Police later searched defendant’s hotel room pursuant to a search warrant. They found approximately 110 grams of methamphetamine and other items, including close to $1,000 in cash, a digital scale and unused sandwich bags. Defendant admitted he was in the process of selling the methamphetamine.
In the second case, on October 12, 2015, police responded to a report of domestic violence. They came upon defendant’s girlfriend, LG., who had a broken jaw, was bleeding from the mouth and was “hysterical.” She told them defendant punched her in the face and stole her car. Defendant, who was out on bail at the time, was arrested two days later at a car wash. Police found methamphetamine inside defendant’s car, along with items such as a digital scale and $239 in sequential dollar bills.
In January 2016, defendant and the People agreed to a negotiated disposition of both cases. Defendant agreed to plead no contest to felony possession of methamphetamine for sale in the first case and to transportation of methamphetamine in the second one for a sentence of three years in custody and three years on mandatory supervision (minus defendant’s custody credits). The People also agreed not to oppose defendant’s request that he be released from custody pending sentencing because of a death in his family.
On a form regarding his waiver of rights and motion to change his plea, defendant listed the agreed-to sentence among the promises that induced him to enter into the plea agreement. He also initialed the portion of the form that states, “If the court withdraws approval of these promises before judgment and sentence, I have the right to withdraw my plea(s), Penal Code Section 1192.5.” This is followed by a statement in bold, capitalized and underlined letters as follows: “I UNDERSTAND AND AGREE THAT IF I FAIL TO APPEAR ON THE DATE SET FOR SURRENDER OR SENTENCING WITHOUT LEGAL EXCUSE, COMMIT A NEW CRIME, OR VIOLATE ANY TERMS OF MY RELEASE BEFORE JUDGMENT AND SENTENCE, MY PLEA WILL BECOME AN ‘OPEN PLEA’ TO THE COURT, I WILL NOT BE ALLOWED TO WITHDRAW MY PLEA, AND I MAY BE SENTENCED UP TO THE MAXIMUM TERM OF IMPRISONMENT OR INCARCERATION SPECIFIED IN PART 7.”
Part 7, which defendant also initialed, has typewritten, “The maximum punishment which the court may impose based on this plea is_____.” The phrase “4 years” is handwritten in the blank. The phrase “7 years total” is written on the side of the page by part 7, next to defendant’s initials.
The court accepted defendant’s change of pleas for the two counts, found him guilty of each count, dismissed the remaining counts, set a sentencing hearing to begin at 9:00 a.m. on February 25, 2016, and ordered that defendant be free on his own recognizance pending judgment and sentence. The court emphasized to defendant that it would not sentence him as recommended by the People if he committed a new crime or failed to appear for sentencing. It stated, “f you fail to show up for judgment and sentence or you commit a new criminal offense, I am not bound by my promise when I sentence you. I would likely sentence you out. So it’s a risky thing to do. I wouldn’t personally [have] recommended it to anybody, but it’s a choice I will let you make if that is what you want to do.”
Defendant did not appear for sentencing at 9:00 a.m. on February 25, 2016. The court issued a bench warrant for his arrest. The record indicates defendant was taken into custody sometime in the first half of April 2016.
In May 2016, the court held a hearing on defendant’s failure to appear for sentencing on February 25, 2016. Defendant was the only testifying witness. He testified that he made a plan over the phone with his sister to get to the hearing on time. He would stay at her Lodi, California home the night before the hearing. In the morning, she would drive him on her way to work to the Sacramento bus station. There, he would take a bus to Suisun City and make his way to the courthouse.
Defendant further testified that he arrived at his sister’s house at 11:30 p.m. the night before the hearing, after his sister had gone to sleep. He woke up in the morning at “6:30, 6:45.” He discovered that his sister had left for work. He called her and learned she was already at work. He showered and called a taxi, taking it to Stockton. There, he called his attorney at about 8:45 a.m. (At other times, he testified that he called her from Sacramento.) Told she was in court, he left her a voice mail message. He then took a bus to Sacramento and arrived there a little after 9:00 a.m. At the bus depot, he learned the next Greyhound bus to Suisun City left in two hours. His attorney called him around 10:15 a.m. or 10:20 a.m., when he was still in Sacramento.
Defendant further testified that the court had made it clear to him that he had to be at the sentencing hearing. He told his sister the importance of him getting to court. Asked if she just forgot to take him, he said, “No. She didn’t forget. She just moved in the house the day before that. . . . None of the kids had their beds made. The kids were sleeping on the floor. I’m sleeping in the bedroom. She has four dogs that are not people friendly. [¶] So she thought that I wasn’t there, but I was in the back room.” According to defendant, she looked for him in the morning, but could not find him.
Defendant further testified that he arrived in Suisun City around 1:00 p.m. He did not go to his attorney’s office, but spoke to her by telephone and asked her to get him on the court’s calendar for another date. Asked at the hearing why he did not turn himself in on February 25, he said he tried to at the local jail, but jail personnel did not accept him because they had no warrant for him, and that he also called two unidentified police officers.
Defendant testified that his attorney tried to get him on the court’s calendar, and also told him that the judge said he should turn himself in. He said he turned himself in when the police came to his Fairfield motel with a warrant for him. Challenged over whether this constituted turning himself in, defendant said that if he had not stopped, the police “would have kept on going.”
Defendant’s counsel argued that defendant did not willfully fail to appear for sentencing. She said defendant left her a voice mail message the morning of the sentencing hearing indicating he was in Sacramento, was making his way to the court and that his arrangements had fallen through. Further, she told him that day that she would get him back on the calendar, but the court denied her request. She told the court that she notified defendant of the court’s denial of his request for a voluntary return on March 14, 2016.
The court found defendant willfully failed to appear for sentencing. It stated, “First of all, there was no way he could have made it even if I believe that story, there was no way he could have made it from Lodi being dropped off in Sacramento, taking a Greyhound to make it for a 9:00 court appearance. That was not reasonable, but I also don’t find it plausible that his sister forgot and didn’t see him in the household that he just moved into. [¶] Needless to say, it really doesn’t matter because at that point in time, [defendant] knew he had an outstanding warrant. He did not make arrangements to surrender himself, and I could not have been more clear and I went out on a limb with you. I could not have been . . . clearer . . . .”
At a subsequent hearing on August 3, 2016, the court imposed a split sentence on defendant that was different from the sentence that was part of the plea agreement. It ordered that defendant serve four years in county jail rather than three years, and to then serve two years in mandatory supervision, rather than three years. The court said it was imposing this sentence in part because the prosecutor had argued that, although defendant had not appeared at the sentencing hearing or surrendered himself, there were some mitigating circumstances involved.
On August 4, 2016, defendant, through his counsel, filed a notice of appeal in both cases regarding the court’s August 3, 2016 sentencing order. On August 8, 2016, the court filed an abstract of judgment in both cases. On August 15, 2016, defendant, appearing in propria persona, filed a notice of appeal in both cases from the court’s August 3, 2016 sentencing order, in which he indicated he was challenging the validity of his plea. He stated as a basis for his appeal and his request for a certificate of probable cause from the court, “On 1/29/16 I signed a plea agreement to receive 6 years with a three year term to serve in custody and a three year probation. A split sentence, the Judge didn’t honor that agreement and I was given a 4 year sentence and never given an option to take my plea back.” The trial court did not issue a certificate of probable cause.
DISCUSSION
Defendant argues that the court erred in ruling that he willfully failed to appear for sentencing and, therefore, should have given him the sentence promised to him in his plea agreement. Specifically, he contends there was insufficient evidence that his failure to appear was willful.[2] We disagree.
Penal Code section 1192.5 provides in relevant part that when a person in defendant’s circumstances pleads no contest as part of a negotiated disposition of charges that have been brought against him, “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 . . . nolo contendere, . . . 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.”
The parties do not identify it as such, but the provision of their plea agreement that we have quoted above regarding defendant’s release and need to appear for sentencing is often referred to as a “[i]Cruz” or “Cruz/Vargas” waiver. As our Supreme Court has explained, “In People v. Cruz (1988) 44 Cal.3d 1247 [Cruz], we interpreted the provision of [Penal Code] section 1192.5 that permits a defendant who pleads . . . nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. We held that this provision applies even if the defendant fails to appear for sentencing. We noted in a footnote, however, that a defendant could expressly waive his or her rights under section 1192.5 at the time the plea was entered. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.” (People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2 (Masloski).) In other words, as stated in Cruz, “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,” provided that the waiver was knowing and intelligent, “obtained at the time of the trial court’s initial acceptance of the plea.” (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
Further, our Supreme Court has approved of a procedure whereby “a plea agreement validly could provide for a specified greater term to be imposed in the event the defendant failed to appear for sentencing.” (Masloski, supra, 25 Cal.4th at pp. 1219, 1220–1224 [approvingly discussing People v. Vargas (1990) 223 Cal.App.3d 1107].) That is, “ ‘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.’ ” (Masloski, at p. 1222, quoting People v. Casillas (1997) 60 Cal.App.4th 445, 451–452.)
It is undisputed that this procedure was properly used here and that, therefore, as specified in defendant’s plea agreement form, the trial court could impose up to a maximum term of seven years if defendant willfully failed to appear for sentencing. Nor does anyone dispute that defendant failed to appear and that the court imposed a sentence that was within this maximum. The only issue before us is whether there is sufficient evidence to support the trial court’s determination that defendant willfully failed to appear, as opposed to failed to appear for reasons beyond his control, thereby enabling the court to impose this sentence under defendant’s Cruz waiver.
We review this issue “under the substantial evidence test. ‘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 (2008) 168 Cal.App.4th 494, 509 [finding sufficient evidence that the defendant violated the “break no laws” condition of his release by committing spousal abuse, which led to a change in sentence under his Cruz/Vargas waiver].)
“The terms ‘willful’ or ‘willfully,’ as used in penal statutes, imply ‘simply a purpose or willingness to commit the act . . . . ,’ without regard to motive, intent to injure, or knowledge of the act’s prohibited character. ([Pen. Code,] § 7, subd. 1.)[[3]] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term ‘willful’ requires only that the prohibited act occur intentionally.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also CALCRIM No. 915 [“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage”]; CALCRIM No. 2700 [“Someone commits an act willfully when he or she does it willingly or on purpose”]; CALCRIM No. 2932 [Someone commits an act willfully when he or she does it willingly or on purpose”].)
Here, ample evidence supports the trial court’s determination that defendant willfully failed to appear for sentencing on February 25, 2016. First, defendant failed to appear despite admittedly being aware of the 9:00 a.m. time of the hearing and the importance of appearing at that time. Second, defendant offered no reasonable explanation for his failures to appear or to take any documented steps to surrender himself. While he offered a story to explain his conduct, it made no sense. He claimed that he had arranged for his sister to take him on the morning of the hearing to a bus station on her way to work, yet by his own admission he did not wake up until after she had left the house and already arrived at her own workplace. One would expect him to arise before his sister was scheduled to leave the house for a date this important, but he did not. Next, he claimed his sister could not find him because he was sleeping in a back room of the house. But one would expect him to indicate where he was sleeping, such as by posting a note somewhere in the house, if he truly intended to make it to this important court hearing. Next, defendant called his lawyer when he was late to the hearing, but he did not try to see her personally, nor did he take any documented steps to surrender himself that or any other day. He remained free until police found him and took him into custody in the first half of April, approximately one and a half months after the February 25, 2016, sentencing hearing. The trial court had every reason to reject defendant’s story and find he voluntarily and willingly failed to appear and, therefore, that his failure was willful.
For the most part, defendant repeats his contentions below about the mishaps between him and his sister that prevented him from appearing for sentencing. He contends that these facts are most similar to those discussed in People v. Zaring (1992) 8 Cal.App.4th 362. There, a trial court decided to send the defendant, Zaring, to prison rather than to a drug program because she appeared 22 minutes late for a hearing; although the trial court accepted her explanation that she had had unforeseen child care problems, it found her conduct was a willful violation of her probation. (Id. at pp. 365–367, 376–377.) The appellate court reversed for abuse of discretion, stating that judicial discretion “requires the application of sound judgment that takes into consideration that life is not always predictable and that things do not always go according to plan.” (Id. at p. 379.)
Zaring is inapposite because the trial court believed Zaring’s explanation for her late arrival, while here, the trial court doubted defendant’s credibility altogether, and for good reason. And Zaring indisputably appeared in court on the morning of her hearing, while here there is no evidence that defendant appeared in court before he was apprehended by police approximately six weeks after the hearing. Further Zaring is devoid of any post-hearing facts that further demonstrate a willful failure to appear, unlike in this case. Essentially, defendant asks that we reweigh the evidence and ignore the court’s doubts about his credibility, and that we also ignore that his explanation makes no sense. This is utterly unpersuasive.
Defendant also contends that the trial court should have found him to have acted willfully only if it concluded that he failed to appear “ ‘to achieve some additional purpose, i.e., to evade the process of the court.’ ” Defendant does not cite any apposite authority for this proposition. Instead, he relies entirely on a case discussing statutes that expressly provide a crime is committed when a person charged or convicted of a crime is released from custody and, “ ‘in order to evade the process of the court willfully fails to appear as required.’ ” (See People v. Wesley (1988) 198 Cal.App.3d 519, 523–524 [discussing Pen. Code, §§ 1320 [regarding misdemeanors], 1320.5 [regarding felonies].) As discussed in Wesley, the Legislature first adopted this language about evading the process of the court in Penal Code section 1320, thereby requiring a specific intent for the crime. (Wesley, at pp. 523–524.) Defendant fails to explain why this specific intent applies to his circumstances. He was not found to have committed a crime, but merely to have willfully failed to appear for sentencing, thereby enabling the court, pursuant to the terms of his plea agreement, to impose a different sentence.
Nonetheless, assuming for the sake of argument that this “evade the process of the court” standard does apply to defendant, it was satisfied. It can be reasonably inferred from the evidence that defendant willfully failed to appear for sentencing in order to evade the process of the court, i.e., in order to avoid being taken into custody. The trial court had good reason to doubt defendant’s credibility, he did not appear in court despite knowing he was required to do so, he took no documented steps to surrender himself, and he was not taken into custody for about a month and a half after the sentencing hearing. Defendant’s argument, therefore, lacks merit.
DISPOSITION
The rulings appealed from are affirmed.
STEWART, J.
We concur.
KLINE, P.J.
MILLER, J.
[1] Since there were no trials in the two cases, we summarize the factual background for the first case based on the preliminary hearing transcript and the probation department report. For the second case, we use the probation department report.
[2] Defendant’s no contest plea restricts the scope of the appeal before us. Since the lower court did not issue him a certificate of probable cause, defendant’s appeal is limited to “postplea claims, including sentencing issues, that do not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379.) He is not required to obtain a certificate if he is appealing “issues regarding proceedings held subsequent to the plea for the purpose of determining . . . the penalty to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant’s appellate arguments are limited to his sentence and, therefore, are about matters subsequent to his plea. To the extent he might intend his arguments to challenge the validity of his negotiated disposition itself, as is suggested in his second notice of appeal, we disregard these issues.
[3] Penal Code section 7, subdivision (1) states: “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.”
