Filed 12/14/17 P. v. Slaughter 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM CHARLES SLAUGHTER,

Defendant and Appellant.
C083390

(Super. Ct. No. CRF16-222)







Defendant William Charles Slaughter pleaded no contest to burglary of a residence when someone other than an accomplice was present and while a principal was armed with a firearm. (Pen. Code, §§ 459, 12022, subd. (a)(1), 667.5, subd. (c)(21).) He was released on his own recognizance after entering a Cruz waiver as part of the plea agreement. If defendant complied with the terms and conditions of the Cruz waiver he would receive three years. If he did not, he stipulated to the maximum sentence of seven years. The court found defendant violated the Cruz waiver by not timely reporting to the Yuba County Probation Department, one of the Cruz waiver conditions. He was sentenced to seven years in state prison.
On appeal, defendant contends the court erroneously relied on improper criteria when ruling on the Cruz waiver violation, and that insufficient evidence supports a finding defendant more likely than not intentionally failed to comply with the probation reporting requirement. He urges us to reverse and to direct the trial court to impose the lower three-year term under the plea bargain. After reviewing the record we conclude the trial court did not determine whether the violation was willful as required by law. We therefore vacate defendant’s sentence and remand the matter so the trial court may make the determination in the first instance. If the court finds a willful violation of the Cruz waiver, it may impose the upper seven-year term under the negotiated terms of the plea agreement. If no willful violation is found, defendant is entitled to the lower three-year term under the agreement.
FACTS AND PROCEEDINGS
On April 10, 2016, defendant and Kenneth Smith asked Kyle Wallingsford to drive them to an Olivehurst residence where Smith had arranged to purchase two pounds of marijuana from Randall Ordway and Daniel Peters. Wallingsford agreed.
On the way, Wallingsford stopped at Derek Stroughter’s house where Smith retrieved a firearm from Stroughter. After arriving in Olivehurst, defendant asked to be let out of the car because he had “a bad feeling something was going to happen.” Smith and Wallingsford let him out and then continued on to the residence where Smith arranged to purchase marijuana. Wallingsford waited in the car while Smith went inside carrying the gun.
When Smith entered the house, Ordway showed him two large bags of marijuana in the kitchen. Smith threw a green money bag containing napkins and tissues on the table, and when Ordway went to inspect the contents of the bag, Smith cocked and loaded his firearm.
Unknown to Smith, Ordway and Peters developed a system in which Peters would wait in the back room with a shotgun and emerge if Ordway uttered the code phrase, “Oh shit!” When Smith pulled out the gun, Ordway yelled, “Oh shit,” and tried to wrestle the firearm from Smith. Peters emerged from the back room with his shotgun. Smith shot at Peters, who returned fire killing Smith. Ordway then called police.
Wallingsford fled after hearing the gunshots. He picked up defendant on the way back to Sacramento and neither called the police. At the time, defendant was on felony probation in Sacramento County for a previous drug offense.
Defendant and Wallingsford were initially charged jointly with the first degree murder of Smith. (§§ 187, subd. (a), 189.) An amended complaint, later deemed an information, charged them with a single count of first degree burglary. (§ 459.) The information also alleged that a principal was armed with a firearm during the burglary and that another person other than an accomplice was present in the residence. (§§ 12022, subd. (a)(1), 667.5, subd. (c)(21).)
Defendant pleaded no contest to the residential burglary charge (§ 459) and admitted the armed principal enhancement (§ 12022, subd. (a)(1)) and the person-present, violent felony allegation (§ 667.5, subd. (c)(21)). Although the plea deal originally was for three years, against the advice of his counsel defendant agreed to a Cruz waiver whereby he stipulated to the upper term of seven years but would receive three years if he complied with all of the terms and conditions of the Cruz waiver.
Among other things, the written Cruz waiver form states: “I understand and agree as part of this plea agreement that upon the giving of a Cruz Waiver I will be released upon my own recognizance and as a condition of my release I will: [¶] . . . [¶] 2. Timely report to Yuba County Probation Department and make and keep the subsequent appointment with the probation officer.” Defendant initialed the statement, and later confirmed the initials were his.
At the plea hearing on August 19, 2016, the court confirmed defendant stipulated to the upper term of seven years in state prison if he failed to comply with the Cruz waiver. Defendant had no questions about the possible consequences of his plea or about the plea form. The court advised defendant of the Cruz waiver requirements, including the condition to report to the probation department.
Specifically, the court told defendant, “You’ll report to the Probation Department.” The court then asked counsel when defendant would be released from custody that day, and the prosecutor said defendant would be transported to Sacramento County on a hold. The court noted defendant might not get out of custody, and then instructed him, “[w]ithin 48 hours of your release from custody, be back.” The court set sentencing for 9:00 a.m. on September 19.
Defendant was released from custody in Yuba County on August 19 and then booked on an outstanding Sacramento County warrant and released to Sacramento County on August 22. Defendant was apparently released from the Sacramento County Jail on August 24 and reinstated on probation there. Upon his release from custody, defendant did not contact the Yuba County Probation Department or otherwise report to the probation office.
Defendant appeared at the sentencing hearing in Yuba County on September 19. Arguing that defendant had violated the Cruz waiver because he did not timely report to the Yuba County Probation Department as required, the prosecutor urged the court to impose the upper term of seven years under the terms of the plea agreement. After confirming with the probation officer that defendant did not contact the Yuba County Probation Department and he was not in custody as of September 7 when probation checked the Sacramento County jail inmate records, the court granted defense counsel’s request to brief the issue and continued the sentencing hearing.
Prior to the continued hearing, defendant filed an “invitation” with the court, arguing, among other things, the court should sentence him to the lower three-year term because his “trivial” violation of the agreement did not deprive the prosecutor of any significant benefit of the bargain. He also argued basic fairness mandated the lower sentence because he did not receive any documents or copies of the Cruz waiver when he was released from Yuba County, essentially intimating he did not know he must comply with the condition.
The prosecutor opposed the request, arguing the agreement clearly specified defendant must report timely to the Yuba County Probation Department as a condition of the Cruz waiver, and the court expressly advised defendant to report to probation within 48 hours of his release from custody when explaining the Cruz waiver conditions at the plea hearing. The prosecutor also noted defendant personally acknowledged this condition in his signed “Agreement to Appear[;] Release on Own Recognizance (O/R)” form, which provides, “Report to the Probation Department/Court: [¶] Within 48 hours . . . of release from custody . . . .” The OR release form includes a handwritten notation that “Defendant has a Sac. County hold.”
The court heard argument from counsel on the Cruz waiver issue at the continued sentencing hearing. According to defense counsel, defendant thought he had to report to probation in Sacramento County since that is where he was ultimately released from custody after being reinstated on probation there. He also knew he was not going to get probation in the instant matter. Counsel also noted the plea transcript mentioned probation, but did not specify the Yuba County Probation Department. Although he acknowledged the Cruz waiver form stated “Yuba County Probation Department,” counsel intimated defendant may have missed that information during the plea hearing. Counsel noted defendant complied with all other conditions of the Cruz waiver, including appearing at the initial sentencing hearing. The prosecutor, on the other hand, argued defendant bargained for the Cruz waiver and he violated the agreement without any lawful excuse.
Defendant’s mother submitted a letter on his behalf. She claimed defendant did not intentionally miss an appointment with the Yuba County Probation Department, and they were both surprised when they learned he had violated the Cruz waiver.
After considering the arguments of counsel, the court found defendant violated the Cruz waiver and sentenced him to the upper term of seven years. The judge gave two reasons for its ruling. First, responding to defendant’s argument the violation was trivial, the court found the condition requiring defendant to report to the Yuba County Probation Department was material because it allowed probation to monitor whether defendant was complying with other terms and conditions of the waiver. Second, the court felt the appropriate sentence for the crime was seven years because defendant was not a minimal player in the offense. The court noted, apparently incorrectly, it was defendant’s gun that Smith took into the house and fired at the occupants during the sham marijuana purchase. According to the sheriff’s report that served as the factual basis of the plea, Smith obtained the firearm from Stroughter not defendant Slaughter. Defendant timely appealed.
DISCUSSION
I
Violation of Cruz Waiver
Defendant contends the court erred in imposing the upper term of seven years under the plea agreement because it did not determine whether he willfully violated the Cruz waiver. He argues the court applied improper criteria, or an improper standard, when ruling on the Cruz waiver violation issue. We agree.
In Cruz, supra, 44 Cal.3d at page 1249, the Supreme Court interpreted the provision of 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 even if the defendant failed to appear for sentencing. The court emphasized, however, a defendant can expressly waive his or her rights under section 1192.5 when entering a plea. (Cruz, supra, at p. 1254, fn. 5.) “[I]f 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 the waiver was knowing, intelligent, and obtained at the time of the trial court’s initial acceptance of the plea. (Ibid.)
A plea agreement validly can provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. (People v. Masloski (2001) 25 Cal.4th 1212, 1223-1224.) “ ‘[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. 1222.)
It is undisputed that this procedure was properly used here, and that the court could impose the maximum term of seven years if defendant willfully failed to comply with the terms and conditions of the negotiated Cruz waiver. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) It is also undisputed that defendant did not timely report to the Yuba County Probation Department, and make and keep a subsequent appointment with the probation officer—one of the express conditions of the Cruz waiver. The issue, then, is whether the violation of the Cruz waiver condition was willful. (Ibid.)
“The terms ‘willful’ or ‘willfully,’ as used in penal statutes, imply ‘simply a purpose or willingness to commit the act. . . . 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. [Citations.]” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also § 7, subd. (1) [“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”].)
Although the People argue the court impliedly found a willful violation, after reviewing the record we conclude the court did not make the necessary determination. The court gave two reasons for imposing the upper term based on the admitted violation of the condition: (1) it found the condition material to the agreement, and (2) it believed defendant’s involvement in the underlying crime warranted the maximum sentence. Neither reason addresses whether defendant willfully violated the condition, however.
While we do not disagree with the court’s assessment that reporting to the probation department is material for purposes of monitoring those who are released on their own recognizance on a Cruz waiver, the materiality of the condition was not at issue. Read in its entirety, the record reveals the trial court’s reference to the condition’s materiality was in the context of addressing defendant’s argument that the condition was trivial. Thus, we do not fault the trial court for responding to an argument defendant himself raised. Nevertheless, the court was required to determine whether defendant willfully violated the condition regardless of the parties’ arguments. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
The court’s second reason for imposing the upper term under the agreement—defendant was more culpable in the offense than he admitted—was irrelevant to determining whether defendant willfully violated the Cruz waiver. It appears, moreover, the court mistakenly believed defendant gave Smith the gun. According to the sheriff’s report, which served as the factual basis for the plea, Smith retrieved the gun from Stroughter not defendant. Defendant himself did not accompany Smith and Wallingsford to the marijuana house, instead asking to be let out of the car before they arrived at the house.
While it is true, as the People argue, we review a factual finding a defendant willfully violated a Cruz waiver for substantial evidence (In re Jerry R., supra, 29 Cal.App.4th at p. 1438), it does not affirmatively appear on this record that the court ever actually determined whether the violation in this case was willful. We therefore remand the matter to the trial court to make the necessary willfulness determination in the first instance. We express no opinion on that issue.
II
Abstract of Judgment
As part of the plea agreement, defendant pleaded no contest to the principal armed with a firearm enhancement (§ 12022, subd. (a)(1)), and the person present enhancement (§ 667.5, subd. (c)(21)). The abstract of judgment, however, does not list either enhancement. We shall direct the trial court to prepare an amended abstract of judgment listing the enhancements found true under the plea agreement. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may correct errors and omissions in abstracts of judgment at any time].)
DISPOSITION
Defendant’s conviction is affirmed. Defendant’s seven-year sentence is vacated, and the matter is remanded for further proceedings so that the trial court may determine whether defendant willfully violated the Cruz waiver provision requiring him to report timely to the Yuba County Probation Department and to make and keep a subsequent appointment with the probation officer. If the court finds defendant willfully violated the Cruz waiver, the seven-year sentence is reinstated. If the court finds defendant did not willfully violate the Cruz waiver, the court shall impose the three-year sentence defendant bargained for in the plea agreement.
The court shall also prepare an amended abstract of judgment reflecting the enhancements to which defendant pleaded no contest. The court shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.



NICHOLSON , Acting P. J.



We concur:



HOCH , J.




RENNER , J.