P. v. Wright

Filed 5/16/06  P. v. Wright CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, and petition for writ of habeas corpus, John M. Thompson, Judge.  Judgment reversed and remanded; petition dismissed as moot.

Joseff James Wright pleaded guilty to various felony charges in two separate cases in exchange for a dismissal of other charges and a grant of probation subject to certain conditions.  After accepting the plea, the trial court did not immediately sentence Wright but instead released Wright on his own recognizance.  Wright failed to satisfy a condition of his release or appear for sentencing and the trial court found him in violation of the terms of his release.  When Wright later appeared for sentencing, the trial court sentenced him to prison based on the violation without first placing him on probation in accordance with the plea agreement or advising him of his right to withdraw his plea.

Wright claims that the trial court erred in (1) deviating from the plea bargain without advising him of his right to withdraw his plea and (2) finding him in violation of the terms of his release without providing him notice and an opportunity to be heard.  We agree, reverse the judgment and remand the matter for further proceedings.

In his petition for habeas corpus Wright contends, among other things, that he received ineffective assistance of counsel.  These claims are moot based on our disposition of the appeal and we dismiss the petition.

FACTUAL AND PROCEDURAL BACKGROUND

            Wright was charged with four counts of burglary (SCD183212) and, in a separate felony complaint, with six counts of burglary and four counts of uttering checks with insufficient funds, all committed while on bail (SCD183661).  While representing himself, Wright pleaded guilty to one count of burglary in the first complaint and one count of uttering a check with insufficient funds while on bail on the second complaint in exchange for the prosecution dismissing all other counts and allegations.  The parties also agreed that Wright would receive a stipulated five-year, eight-month prison term, stayed pending his successful completion of probation, with probation conditioned on an attached list of ten terms and any terms specified by probation.

            Specifically, Wright agreed that " [i]mmediately upon release from custody," he would enter and complete the " CRASH" residential drug treatment program, CRASH would report to probation and any " unauthorized absences [from CRASH] shall be deemed violations of Probation."   Wright initialed the box indicating his understanding that the court could sentence him to the agreed upon prison term if he violated any condition of probation.

            After the trial court accepted the plea agreement, Wright requested immediate sentencing because CRASH had an available bed, but the court refused because it lacked a probation report.  However, the trial court released Wright on his own recognizance, ordered him to report to CRASH and told him that failure to return for sentencing would result in the imposition of the agreed upon prison sentence.  It also ordered Wright to report to probation within 72 hours of his release, even though the signed plea agreement specified that CRASH would report to probation.

            Wright reported to CRASH as ordered, but CRASH representatives refused him admission because he used a narcotic pain medication.  Wright reported the problem to the district attorney, obtained a different prescription from his physician and again reported to CRASH after appearing in court.  In accordance with the court's order, Wright left CRASH to report to probation after purportedly obtaining permission from the CRASH representative.  Although Wright returned to the CRASH facility later in the day, his bed was no longer available and the program denied him admittance.  CRASH reported Wright's absence to the court, claiming it had advised Wright that his failure to remain would be a " walk-away" from the facility.  The court issued an ex parte order for Wright to again report to CRASH for admittance; however, there is no evidence in the record that Wright knew about this order.  Wright could not reach the prosecutor, claimed he suffered an exacerbation of his mental illness and did not appear for sentencing because he forgot the date.

            On November  8, 2004, the trial court found Wright in " violation," revoked probation and issued a bench warrant for his arrest.  When Wright failed to appear at the December 6, 2004 sentencing hearing, the court took the matter off calendar and left the outstanding warrant in place.  On December  28, 2004, Wright appeared in court on the warrant and the court remanded him to the custody of the sheriff.  On February 23, 2005, Wright appeared with counsel and the court deleted his pro per status and set a probation and sentencing hearing for the two cases in which Wright had pleaded guilty.

            At the probation and sentencing hearing, Wright asked to be placed into a different program, but never sought to withdraw his guilty plea.  The trial court ordered Wright to pay various fines and victim restitution and sentenced him to a total of four years, eight months in prison for both cases, one year less than the stipulated sentence because the trial court believed it could not give Wright the upper term without a " Blakely waiver."   (Blakely v. Washington (2004) 542 U.S. 296.)

            Wright filed the instant appeal and received a certificate of probable cause.  (Pen. Code, §  1237.5, all undesignated statutory references are to this code.)

DISCUSSION

            As a preliminary matter, we reject the People's assertion that Wright waived his right to appeal when he signed the plea agreement and initialed a paragraph providing that he waived " any right to appeal" because a general waiver of the right to appeal does not apply to errors occurring subsequent to the plea.  (People v. Sherrick (1993) 19 Cal.App.4th 657, 659; People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1663.)

            Wright contends that the trial court unilaterally imposed the terms of his release after it accepted the plea agreement, that the release provisions did not amount to a valid " Cruz waiver" (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz)) and even if there was a valid " Cruz waiver," it is unenforceable because he did not knowingly waive his rights under section 1192.5.  He further contends that the trial court erred when it failed to hold a hearing to determine whether he willfully violated the terms of his release and claims that under section 1192.5, he should be allowed either the benefit of his plea bargain or to withdraw his plea.  We agree with his latter contention.

            Section 1192.5 governs a trial court's approval of a guilty plea to certain felony violations and prohibits a trial court that has approved a plea agreement from sentencing the defendant " to a punishment more severe than that specified in the plea" or " proceed[ing] as to the plea other than as specified in the plea."   (§  1192.5.)  If the trial court withdraws its approval of a plea, the defendant must be permitted to withdraw the plea.  (Ibid.)  A defendant who does not appear for sentencing does not lose his or her rights under section 1192.5.  (Cruz, supra, 44 Cal.3d at pp. 1249, 1251-1254.)  A defendant's failure to appear for sentencing is not a " breach" of the plea agreement; rather, the failure to appear is a separate criminal offense under section 1320 (own recognizance release).  (Cruz, supra, 44 Cal.3d at p. 1253.)

            A defendant, however, 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.)  A Cruz waiver allows the trial court to withdraw its approval of a plea if a defendant willfully fails to appear for sentencing without allowing the defendant an opportunity to withdraw a guilty plea, provided that the defendant agreed to waive the protections of section 1192.5 when the trial court initially accepted the plea.  (People v. Masloski (2001) 25 Cal.4th 1212, 1219; Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)

            Here, Wright did not expressly waive his rights under section 1192.5.  As part of the plea bargain, Wright agreed he would immediately enter and complete the CRASH program, any unauthorized absences from CRASH would violate his probation and a probation violation would result in the imposition of the stipulated sentence.  After the trial court accepted the plea, it declined to immediately sentence Wright, but rather released him on his own recognizance and ordered him to enroll in CRASH, to report to probation within 72 hours of his release and to appear for sentencing on a specific day.  The trial court also informed Wright that it would impose the agreed upon prison sentence if he failed to return for sentencing.  These post-plea statements, however, were not part of the plea bargain; rather, they were unbargained for conditions of Wright's release.  (People v. Morris (1979) 97 Cal.App.3d 358, 363; compare, People v. Vargas (1990) 223 Cal.App.3d 1107, 1109, fn. 1 [parties negotiated a disposition to allow the defendant to remain free pending sentencing].)

            At the probation and sentencing hearing, the trial court deviated from the plea agreement when it refused to grant probation based on Wright's violation of his unbargained for release conditions.  Despite this deviation, the trial court failed to advise Wright of his right to withdraw his plea as required by section 1192.5.  Where, as here, the trial court withdraws its approval of a plea agreement, the defendant must be permitted to withdraw his plea if he so desires (People v. Masloski, supra, 25 Cal.4th at p. 1217) and absent a section 1192.5 admonition, a defendant's failure to affirmatively request a change of plea does not amount to a waiver of this right.  (People v. Johnson (1974) 10 Cal.3d 868, 872.)

            The People contend that the trial court's failure to advise Wright of his right to withdraw his plea was harmless because the trial court adhered to the agreement with the exception that it sentenced Wright to one year less than he bargained for.  This argument, however, ignores the fact that the plea agreement provided for probation.  Wright was never placed on probation and the trial court could not deviate from the plea agreement based on the purported violation of a probation condition.  Nor could the trial court deviate from the plea agreement based on Wright's violation of a condition of his release because Wright's release, and any conditions associated with it, were not part of the plea agreement.  (People v. Morris, supra, 97 Cal.App.3d at pp. 363-364.)

            Wright also argues that the trial court's failure to hold a hearing before finding him in violation of the terms of his release denied him due process and amounted to structural error.  We agree.  Had Wright been on probation, he would have been entitled to a probation revocation hearing with notice and the right to confront witnesses against him.  (People v. Vickers (1972) 8 Cal.3d 451, 455-461.)  Although Wright was not on probation, he violated the terms of his release and was subject to punishment for a separate crime if the violation was willful and done with the intent to evade the court's process.  (§§  1318, 1320; People v. Forrester (1994) 30 Cal.App.4th 1697, 1701.)  The trial court, however, could not base a prison term on this new offense without following minimal procedural requirements such as providing notice and a right to be heard.  (People v. Morris, supra, 97 Cal.App.3d at pp. 363-364.)

            The People argue that Wright waived any error because he had the opportunity to provide good cause for the violation at the sentencing hearing, but failed to do so.  We reject this argument because it fails to recognize that the trial court had already decided the factual issue of the violation at an earlier ex parte hearing.  Because the trial court had already decided the issue, it would have been pointless for Wright to attempt to controvert this finding at the sentencing hearing.

            The judgment must be reversed and the matter remanded for a hearing on the issue of whether Wright willfully violated the terms of his release.  Should the trial court later decide to deviate from the terms of the plea agreement by sentencing him to prison, Wright is entitled to the opportunity to withdraw his plea under section 1192.5.

DISPOSITION

            The judgment is reversed and the matter is remanded for further proceedings in accordance with this opinion.  The petition is dismissed as moot in light of the disposition on appeal.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

   AARON, J.

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