P. v. Jenkins

Filed 3/1/07 P. v. Jenkins CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Randolph Rogers and Carol Koppel, Judges. Affirmed.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

_____________

Jonathan Jenkins (defendant) appeals from the judgment following his negotiated plea of no contest to driving with a 0.08 percent blood alcohol level causing injury (Veh. Code, 23153, subd. (b)), with an admission that he had a prior conviction of a felony qualifying him for sentencing pursuant to the Three Strikes law. (Pen. Code,  667, subds. (b)-(i); 1170.12.)[1] The trial court sentenced him to six years in state prison.

He contends that the trial court erred during sentencing because when he failed to appear for sentencing, the trial court modified the terms of the negotiated plea without giving him an opportunity to withdraw his plea.

The contention lacks merit, and we shall affirm the judgment.

FACTS

The felony complaint charged defendant with felony driving under the influence of alcohol and/or a drug with bodily injury (Veh. Code, 23153, subd. (a); count 1) and with driving with a 0.08 percent blood alcohol level with injury (Veh. Code, 23153, subd. (b); count 2), each with the infliction of great bodily injury ( 12022.7, subd. (a)). The People amended the felony complaint to allege that defendant had suffered a January 6, 1986, conviction of first degree residential burglary ( 459) within the meaning of the Three Strikes law.

The facts underlying the offenses are taken from the supplemental probation report, which indicates that defendant drove when he was intoxicated. While driving, he rammed into another car at an intersection. He had his daughter and son in his car with him. They were seriously injured during the accident: the daughter had a possible lacerated liver, and the son suffered a frontal lobe hematoma.

I. The Plea

Before the preliminary hearing, on April 27, 2005, defendant entered into a negotiated and certified plea of no contest. By the terms of the plea bargain, defendant would plead no contest to count 2 and admit that he had a prior conviction requiring sentencing pursuant to the Three Strikes law. In exchange for his plea and admission, the trial court would impose a six-year term (a doubled upper term of three years) in state prison. The execution of that term would be suspended, and he would be granted five years of formal probation. He would be required to spend one year in jail as a condition of probation. An additional consequence of his plea was that the Department of Motor Vehicles would suspend his license to drive for one year.

After the prosecutor outlined the terms of the plea on the record for the magistrate, defense counsel told the magistrate that [t]he other thing were going to ask for is a 45‑day surrender day and sentencing day. Defense counsel asked for a 1:30 p.m. appearance. The magistrate inquired, Why would I do it at 1:30 p.m.? Defense counsel explained that defendant would be driving to court from Anaheim and that it would be difficult for him to arrive in court on time, early in the morning. Defense counsel added: Hes going to be out on a Cruz waiver. [People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).] I just dont want any problems. The magistrate ordered defendant to appear for sentencing at 2:00 p.m. on June 15, 2005. Defense counsel replied, Okay. The trial court asked the prosecutor, Ms. Chung? The prosecutor said, Thank you. Then the prosecutor took defendants plea.

During the plea, defendant waived the requisite constitutional rights and pursuant to the plea bargain entered his plea of no contest and the admission. Defendant acknowledged that he had filled out a superior court plea form and initialed and signed that form. (The superior court form did not contain a provision concerning defendants failure to appear on the date set for sentencing.) As requested, the magistrate put sentencing over to June 15, 2005. He advised defendant that he had to make sure that he was on time.

The magistrate also told defendant: You also have some other conditions of remaining on your own recognizance after entering this plea. Of course, no new offenses. But because of the nature of the charge, you cant drive with any measurable amount of alcohol or controlled substance in your blood, and you cant refuse to submit to any drug or alcohol or field sobriety test. Of course, you also have to appear timely for sentencing. If any of those conditions are violated, technically youre looking at six years. Okay?

Defendant replied, Okay.

On June 15, 2005, the date scheduled for sentencing, defendant appeared with counsel. The matter was put over to August 15, 2005. On August 15, 2005, defendant failed to appear. The trial court issued a bench warrant for defendants arrest. Defense counsel told the trial court that defendant was in custody in Orange County.

II. Sentencing Proceedings after the Failure to Appear

Almost a year later, on April 7, 2006, defendant was in custody and appeared on the bench warrant. The prosecutor informed the trial court that over the lunch hour he had updated defendants rap sheet. On May 19, 2005, defendant had picked up a felony possession of cocaine and was granted probation. Defendant had several outstanding warrants in Orange County. On August 4, 2005, defendant had pled guilty or no contest to violating a restraining order with the meaning of section 273.6. The prosecutor offered his opinion that the arrests or convictions violated the Cruz waiver. Further, because defendant had committed new offenses, the trial court should impose the six-year prison term.

The trial court put the matter over for the preparation of a supplemental probation report.

On April 24, 2006, the trial court held the sentencing hearing. It read and considered the supplemental probation report. The report said that on April 15, 2005, defendant had been arrested for making criminal threats ( 422) and that on April 28, 2005, he was convicted of that offense. On May 9, 2005, he was arrested for possessing a controlled substance, and respectively, on May 19, 2005, he was convicted of the possession offense. On August 18, 2005, his probation was revoked following his arrest for an August 3, 2005, violation of a restraining order, and he was sentenced to 16 months of imprisonment. On August 4, 2005, he was granted three years of probation for the section 273.6 offense.

The trial court concluded that defendant had failed to show up on the Cruz waiver.

Defense counsel argued that defendant had an excuse for his failure to appear as on August 15, 2005, he was in custody in Orange County. The trial court said that defense counsel was making no representation that defendant was continuously in custody, and it therefore found no excuse for the failure to appear. Defense counsel asked for credit for time served based on the Orange County prison commitment. He claimed that defendant was entitled to such credit because the authorities had failed to order defendant into court so that defendant could obtain a concurrent term in the instant case. The trial court declined to grant defendant section 2900.5 credit on that basis.

The trial court sentenced defendant pursuant to the agreement of the parties to a six-year prison term.

After he was sentenced, defendant complained that he had not fully understood the terms of the plea bargain and that at the time of the plea, he was unaware of the Cruz agreement.

The trial court reviewed the record and could not find a Cruz waiver. The prosecutor found the Cruz admonishment during the plea proceedings in the record. The prosecutor argued that defendant had violated his agreement to return for sentencing in two ways: defendant had committed a new violation of law, and he had failed to appear on the date set for sentencing.

Defense counsel complained that defendant had not obtained a hearing on the failure to appear. The trial court told counsel that they had just completed the sentencing hearing.

DISCUSSION

Defendant contends that the Cruz condition was grafted onto the plea bargain unilaterally by the magistrate, and therefore the trial court erred by failing to give him an opportunity at sentencing to withdraw from the plea bargain. We disagree.

In Cruz, supra, 44 Cal.3d at page 1249, the California Supreme Court held that a defendant who fails to appear for sentencing does not lose the protections of section 1192.5. The defendant in that case pled guilty pursuant to a plea agreement that gave him the option of a sentence of up to one year in the county jail with a maximum of five years probation or 16 months in prison without probation. The defendant failed to appear for sentencing. When he was apprehended more than six months later, the superior court refused to abide by the plea agreement, denied the defendants motion to withdraw his plea, and sentenced him to a term of two years in state prison. The Court of Appeal affirmed the resulting judgment, concluding that by failing to appear for sentencing, the defendant had breached the bargain . . . [and was] not entitled to either specific enforcement of that bargain or withdrawal of his guilty plea. (Cruz, supra, 44 Cal.3d at p. 1250, fn. omitted.) The Supreme Court granted review and reversed the judgment of the Court of Appeal. (Accord, People v. Masloski (2001) 25 Cal.4th 1212, 1217 [setting out the pertinent authorities that flesh out the rule in Cruz].)

In People v. Casillas (1997) 60 Cal.App.4th 445, 451-452, the Court of Appeal distilled the following principles from the rule set out in Cruz: First, when a defendant fails to appear at sentencing after entering a bargained plea with no discussion about a specific sanction for nonappearance, he or she is entitled to withdraw the plea if the court refuses to honor the plea bargain. Second, the same rule applies when, during the plea proceedings but after the parties have negotiated the basic plea bargain, the court imposes an additional condition providing a sanction for nonappearance. Third, 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.

The ultimate question will be not whether the bargain occurred in a hermetically sealed environment from which the judge was excluded, but whether the return provision resulted from the give-and-take of plea bargaining or was a judicially imposed afterthought. (People v. Casillas, supra, 60 Cal.App.4th at p. 452.)

In this case, defendant argues that the record shows that the no-return conditions were grafted onto the plea bargain by the magistrate and were not part of the negotiated plea. We conclude the record is to the contrary. After the prosecutor set out the conditions of the plea for the magistrates approval, defense counsel indicated that there was an additional aspect to the defendants agreement with the People. The defendant wanted to make it a condition of the plea that he was to be released on his own recognizance until sentencing and that sentencing be postponed for 45 days. Defense counsel indicated that the defendant was agreeing to a Cruz condition in the plea agreement with the prosecutor. The magistrate agreed that the proposed Cruz condition could be part of the plea agreement presented to it by the People.

This record indicates that the Cruz agreement did not originate with the magistrate and that it was not a separate, unilateral condition grafted by the magistrate onto the plea bargain before the magistrate would accept the terms of the plea. Consequently, when defendant failed to appear and presented to the trial court no good cause for failing to appear, the trial court properly executed the terms of the bargain by imposing a six-year prison term.

On appeal, defendant asserts that the trial court gave him no hearing on good cause for the failure to appear. The record shows that at sentencing, defendant had an ample opportunity to provide the trial court with any proof necessary to show that defendant was in custody continuously from before August 15, 2005, until April 7, 2006. Defendant had the two weeks between April 7, 2006, and the April 24, 2006, sentencing hearing to garner any proof he needed to persuade the trial court that he should not be penalized for a failure to appear. As the trial court observed, defense counsel and defendant made no claim that defendant was continuously in custody following August 15, 2005. Further, even if defendant had been continuously in custody after August 15, 2005, and thus had good cause for failing to appear, defendant had committed the two new criminal offenses after entering his plea. The commission of the new offenses also permitted the trial court to impose the six-year prison term.

We conclude that defendant was sentenced pursuant to the terms of the plea bargain. (People v. Masloski, supra, 25 Cal.4th at pp. 1224-1225.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

CHAVEZ

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] All further statutory references are to the Penal Code unless otherwise indicated.