People v. Moore CA1/2 ( 2023 )

Filed 4/24/23 P. v. Moore 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A165407
v.
JOSHUA MOORE, (Lake County
Super. Ct. No. CR957436)
Defendant and Appellant.
BACKGROUND
On October 15, 2020, the Lake County District Attorney filed an
information charging appellant Joshua Moore with entering a residence with
the intent to burglarize it, a felony, in violation of Penal Code1 section 459
(count one), and receiving stolen property, a misdemeanor, in violation of
section 496, subdivision (a) (count two). The information alleged that count
one was a serious violent felony (§§ 1192.7, subd. (c), 667.5, subd. (c)), and
also a violation of section 462, subdivision (a).
On January 20, 2021, Moore entered a negotiated plea under which he
pled no contest to count one in exchange for dismissal of count two. The plea
agreement provided for Moore to be placed on probation for three years, with
1 All further undesignated statutory references are to the Penal Code.
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a custody term of up to one year in county jail. On motion of the prosecutor,
and pursuant to the plea agreement, the court dismissed count two, and
continued the matter to February 16 for sentencing and referred the case to
probation for a presentencing report.
On February 16, the court referred the matter to veteran’s court for an
eligibility determination, and the sentencing date was continued, later to be
continued again to April 26.
During the process of determining Moore’s eligibility for veteran’s
court, defense counsel requested that Moore be released on his own
recognizance. And at the April 26 hearing, the court agreed to that release
under two conditions: first, that Moore successfully participate in veteran’s
court; and second, that Moore enter a Cruz waiver. (People v. Cruz (1988)
44 Cal.3d 1247 (Cruz).) Moore agreed, at which time the court told him that
in the event the court withdrew its approval of the plea because of his failure
to appear, the plea would become an open plea and “you will not be allowed to
withdraw your plea.”
The pertinent colloquy between the court and Moore regarding the
Cruz waiver was as follows:
“THE COURT: Okay. The People do have a concern that he’s not going
to appear in court. That’s a fair concern. I would be inclined to OR [own
recognizance] him on two conditions, one, that he successfully participate in
veteran’s court and comply with all rules and follow all directives of the
veteran’s court program. And number two, that he enter into a Cruz waiver
concerning both his effective participation in veteran’s court and appearances
at all future court dates meaning that if he fails to appear or doesn’t
participate in veteran’s court, his plea will become an open plea rather than a
promised grant of probation. Any thought concerning that? [¶] . . . [¶]
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“THE COURT: Any comments, Mr. Rotow?
“MR. ROTOW [the prosecutor]: No, Your Honor. I would just stress
that I think the—I’d have to look at the maximum, Your Honor, for a
[section] 459. I think that’s what the plea was to.
“THE COURT: Six years, first degree.
“MR. ROTOW: I’ve actually seen cases in the past where people have
failed to appear on Cruz waivers and they ended up getting the maximum. I
wish Mr. Moore the best, and I hope he understands he could get the
maximum. And I encourage him. But I do understand that it’s not really his
fault that they’re not getting the veteran’s court information quite yet. No
opposition, Your Honor.
“THE COURT: Okay. Mr. Moore, do you agree that if you fail to
appear at any future court date without a legal excuse or fail to effectively
participate in veteran’s court, your plea will become an open plea to the
Court, you will not be allowed to withdraw your plea, and you may be
sentenced up to the maximum allowed by law which in this case is six years
in state prison?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Okay. Any questions about that?
“THE DEFENDANT: No, sir.
“THE COURT: Okay. The defendant is released on his [own
recognizance] on the condition that he successfully participate in veteran’s
court and comply with all rules and follow all directives of the veteran’s court
program.
“Do you understand and accept those conditions of your release?
“THE DEFENDANT: Yes, Your Honor.”
The court set the matter for sentencing on May 24.
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On May 24, Moore failed to appear, and the court terminated his
pretrial release and issued a bench warrant. After Moore was in custody, his
sentencing was continued several times.
Meanwhile, Moore applied for mental health diversion, submitting a
report from a licensed psychologist that diagnosed Moore with bipolar
disorder, post-traumatic stress disorder, attention deficit disorder, and
substance abuse. And at a hearing on October 13, the court concluded that
Moore suffered from a mental disorder and granted him mental health
diversion.
Moore missed another court date on January 25, 2022, and the court
again issued a bench warrant for his arrest.
On March 15, the court terminated Moore’s mental health diversion
because he failed to participate in the program. Also at the March 15
hearing, the court found that Moore’s failure to participate in mental health
diversion and to appear in court subjected him to an “open plea.” This is the
exchange on that subject:
“THE COURT: I’m not sure what Judge Markham is referring to
because I’m looking at the plea form and there’s no Cruz waiver here.
“MR. ROTOW: My notes indicate a Cruz waiver. April 26th, 2021,
defendant is OR’d with a Cruz waiver.
“THE COURT: Oh, after the plea. The plea was in general.
“MS. POTTER [defense counsel]: I agree with counsel that there was
an oral waiver administered on that date. [¶] . . . [¶]
“THE COURT: April 26th. Okay. Yeah, so the original plea did not
have a Cruz waiver, but on April 26th he entered a Cruz waiver. So then this
legally would be an open plea.”
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The matter was continued for sentencing, and on April 11, the court
denied probation and sentenced Moore to the middle term of four years in
state prison, with 912 days of presentence custody credit.
On June 7, Moore filed his notice of appeal.2
DISCUSSION
Moore argues that the court erred in imposing a sentence greater than
that agreed upon by the parties in the plea agreement. We agree—as does
the Attorney General.
Under section 1192.5, if the court approves a plea agreement, the
defendant “cannot be sentenced on the plea to a punishment more severe
than that specified in the plea . . . .” (People v. Masloski (2001) 25 Cal.4th
1212, 1217, quoting § 1192.5.)3 The reason is “[a] negotiated plea agreement
is a form of contract, and it is interpreted according to general contract
principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767.) Section 1192.5
2According to the CDCR website, Moore was set to be released in
January 2023. Moore’s opening brief here was filed on October 31, 2022, and
the People’s respondent’s brief on February 27, 2023.
3 Section 1192.5 provides in relevant part:
“(b) When 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.
“(c) If the court approves 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
the plea if the defendant desires to do so. The court shall also cause an
inquiry to be made of the defendant to satisfy itself that the plea is freely and
voluntarily made, and that there is a factual basis for the plea.”
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further provides that if the court subsequently withdraws its approval of the
plea agreement, “ ‘the defendant shall be permitted to withdraw his or her
plea if he or she desires to do so.’ ” (People v. Masloski, supra, 25 Cal.4th at
p. 1217.)
Although a defendant who is fully advised of his or her rights under
section 1192.5 at the time of sentencing may waive such rights, Cruz held
that “[a]ny such waiver, of course, would have to be obtained at the time of
the trial court’s initial acceptance of the plea, and it must be knowing and
intelligent.” (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5 [emphasis added].)
Absent waiver obtained at the time of sentencing, a defendant who fails to
appear for sentencing does not lose the protections of section 1192.5. (Cruz,
supra, 44 Cal.3d at p. 1253.) In short, to be valid a Cruz waiver must be
entered at the time of sentencing. (Cruz, at p. 1254, fn. 5; People v. Casillas
(1997) 60 Cal.App.4th 445, 452.)
Here, the Cruz waiver was not obtained until three months after Moore
entered his plea on January 20, 2021, at which time he pled no contest to
count one (felony burglary) in exchange for dismissal of count two (receiving
stolen property), with a negotiated sentence of three years probation and up
to one year in county jail. Because the Cruz waiver requiring Moore to
participate in veteran’s court and appear at all future proceedings was made
after the court’s initial acceptance of the plea, it could not be imposed at
sentencing.
Moore also argues that the Cruz waiver was not entered knowingly,
intelligently, and voluntarily, also relying on Cruz, where the Supreme Court
held that a valid Cruz waiver must not only be obtained at the time of the
plea, but also be made knowingly and intelligently. (Cruz, supra, 44 Cal.3d
at p. 1252, 1254, fn. 5.)
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When the trial court obtained Moore’s Cruz waiver three months after
it accepted his plea, it admonished him that “if you fail to appear at any
future court date without a legal excuse or fail to effectively participate in
veteran’s court, your plea will become an open plea to the Court, you will not
be allowed to withdraw your plea, and you may be sentenced up to the
maximum allowed by law which in this case is six years in state prison.”
Thus, as Moore puts it, “This affirmative and erroneous instruction by the
trial court made any waiver of his rights under section 1192.5 unintelligent
and unknowing.” Again, we agree—as does the Attorney General.
The Attorney General has filed a comprehensive 27-page brief that
after describing in detail all the proceedings below, first cites cases holding
Moore’s claim was not forfeited. There follows a lengthy discussion of the
applicable cases setting forth the “legal principles underlying a defendant’s
waiver of . . . rights under . . . section 1192.5,” all to agree with Moore that
his “Cruz waiver was invalid because it was not part of his original plea
agreement, and because it was not knowing and intelligent under the totality
of the circumstances.”
And so the Attorney General’s brief concludes: “Since [Moore] did not
enter the Cruz waiver at the time he entered his original plea, and because
his waiver was not knowing and intelligent under the totality of the
circumstances, the Cruz waiver was invalid. Accordingly, the trial court
violated [Moore’s] rights under section 1192.5 when it did not permit him to
withdraw his original plea and sentenced him to a term in excess of the
three-year grant of probation and one year in county jail promised in the
original plea agreement. The proper remedy is to remand the matter to give
[Moore] the opportunity to withdraw his plea if the sentencing court decides
to impose a sentence in excess of the three years of probation and maximum
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of one year in county jail promised in the original plea agreement, or to allow
the trial court to resentence him in accordance with the original plea bargain.
(People v. Rodriguez (1987) 191 Cal.App.3d 1566, 1570−1571.)”
We agree, and the matter is so remanded.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Markman, J. *
People v. Moore (A165407)
*Superior Court of Alameda County, Judge Michael Markman,
sitting as assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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