People v. Smith CA2/1 ( 2016 )


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  • Filed 3/23/16 P. v. Smith CA2/1
    Received for posting 3/24/16
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
    THE PEOPLE,                                                          B248357
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. NA091592)
    v.
    SCOTT SMITH,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J.
    Ferrari, Judge. Reversed.
    ______
    Steven A. Brody, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
    General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
    David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
    ______
    Pursuant to a plea bargain, defendant Scott Smith pleaded no contest to a charge of
    possession of methamphetamine for sale and admitted a firearm allegation in exchange
    for a five-year prison sentence. At the time the court accepted the plea, it did not obtain a
    so-called Cruz1 waiver from defendant. When the defendant thereafter failed to appear
    for sentencing, the court sentenced defendant to eight years in prison and denied
    defendant’s request to withdraw his plea. Defendant contends that the court erred by
    imposing a sentence greater than the term of the plea bargain without allowing him to
    withdraw his plea. The Attorney General does not disagree. We agree and reverse.
    FACTUAL AND PROCEDURAL SUMMARY
    An information charged defendant with possession of methamphetamine for sale
    (count 1; Health & Saf. Code, § 11378); possession of a controlled substance while
    armed with a firearm (count 2; Health & Saf. Code, § 11370.1, subd. (a)); being a felon in
    possession of a firearm (count 3; Pen. Code, § 29800, subd. (a)(1));2 and being a felon in
    possession of ammunition (count 4; § 30305, subd. (a)(1)). The information further
    alleged that he was personally armed with a firearm and had been previously convicted of
    possession of a controlled substance for sale. (§ 12022, subd. (c); Health & Saf. Code,
    §§ 11370.2, subd. (c), 11378.) His maximum potential sentence was 12 years 4 months.
    On August 14, 2012, pursuant to a negotiated plea agreement with the District
    Attorney and approved by the court, defendant pleaded no contest to count 1 and
    admitted the firearm allegation in exchange for dismissal of the other charges and a
    sentence of five years in state prison. The court advised defendant of his constitutional
    rights, which defendant expressly waived, then accepted the defendant’s plea and, based
    on stipulated facts, convicted him of count 1 and found the firearm allegation true.
    The court dismissed the remaining counts.
    1
    People v. Cruz (1988) 
    44 Cal.3d 1247
     (Cruz).
    2
    All subsequent statutory references are to the Penal Code unless otherwise
    indicated.
    2
    After accepting the plea, the court ordered defendant to return for sentencing
    on October 4, 2012, and informed defendant: “[I]f you fail to appear on that date,
    the five[] years is off the table and you’re looking at the maximum time in custody.
    It’s absolutely, unequivocally essential that you . . . appear on that date.” Defendant said
    he understood.
    Defendant failed to appear for sentencing on October 4, 2012, and the court issued
    a bench warrant.
    In November 2012, defendant was arrested and the court ordered him held without
    bail.
    On February 22, 2013, in the presence of defendant, the court sentenced him
    to eight years in prison, consisting of the high term of three years on count 1, plus
    the high term of five years on the firearm allegation. The court told defendant it was
    imposing the high terms because: “You were told at the time of the plea if you failed to
    appear that date, the plea bargain was gone and you would receive the maximum time
    in custody. And not only did you not appear on the date, you managed to get yourself
    arrested on another offense.”
    Defendant apologized for not returning to court on October 4, 2012, and
    explained: “I was distraught, I was on drugs, I wasn’t thinking clearly,” and said he did
    not understand what he had admitted. The court denied his request to withdraw his plea.
    Defendant filed a notice of appeal, and the court denied his request for a certificate
    of probable cause.3
    3
    In his notice of appeal, filed by defendant in pro. per., defendant argued that he is
    entitled to withdraw his plea because his counsel was constitutionally deficient in
    advising him to accept the plea deal. He does not assert this argument in his brief on
    appeal.
    3
    DISCUSSION
    Under section 1192.5, when a defendant’s “plea is accepted by the prosecuting
    attorney in open court and is approved by the court, the defendant, except as otherwise
    provided in [that] 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.” (Italics added.)
    In Cruz, our Supreme Court held that when a defendant enters a plea pursuant
    to a plea agreement and the court subsequently withdraws its approval of the agreement
    because the defendant failed to appear at the sentencing hearing, the defendant retains
    the right to withdraw his or her plea. (Cruz, supra, 44 Cal.3d at pp. 1250, 1254; see
    People v. Masloski (2001) 
    25 Cal.4th 1212
    , 1215, fn. 2.) In this case, defendant entered a
    plea pursuant to a plea agreement, which the court approved. Defendant thereafter failed
    to appear at the sentencing hearing and, on that basis, the court withdrew its approval
    of the agreement. It proceeded to impose a sentence greater than the terms of the plea
    agreement without allowing defendant to withdraw his plea. Under Cruz, this was error.
    As Cruz acknowledged, a defendant can waive the protections provided by
    section 1192.5. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) Here, however, the
    defendant did not waive that right. Instead, as the Attorney General concedes, “the
    court unilaterally imposed a sanction for nonappearance at sentencing”; “[t]he court
    never explained the meaning of a Cruz waiver to defendant, nor was defendant provided
    with a statement of his rights under section 1192.5, including, most importantly, his right
    to withdraw his plea if the court chose not to sentence in accordance with the plea
    bargain.”
    4
    Defendant contends that we should order specific performance of the plea
    agreement and direct the trial court to sentence defendant in accordance with the
    agreement. We disagree. Upon remand, the court has the option to withdraw approval
    of the plea agreement. (See People v. Kim (2011) 
    193 Cal.App.4th 1355
    , 1365.) If it
    disapproves the agreement, it must give defendant the option of withdrawing his plea.
    (Ibid.)
    Finally, we agree with defendant that his appeal is not precluded by his failure to
    obtain a certificate of probable cause. Such a certificate is not required when, as here, the
    “defendant does not challenge the original validity of the plea but asserts that errors were
    committed in proceedings subsequent to the plea for the purpose of determining the
    penalty to be imposed.” (People v. Kaaneha (1977) 
    19 Cal.3d 1
    , 8; see also People v.
    Hernandez (2008) 
    166 Cal.App.4th 641
    , 646 [“A postplea question not challenging the
    validity of a guilty plea is a noncertificate issue that may be raised on appeal after a guilty
    or no contest plea without a certificate of probable cause.”].)
    DISPOSITION
    The judgment is reversed.
    NOT TO BE PUBLISHED.
    ROTHSCHILD, P. J.
    We concur:
    CHANEY, J.
    LUI, J.
    5
    

Document Info

Docket Number: B248357

Filed Date: 3/24/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021