People v. Delatorre CA2/4 ( 2022 )

Filed 4/26/22 P. v. Delatorre CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B311095
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. NA107197,
v. 7LB00401)
OSCAR DELATORRE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura Laesecke, Judge. Affirmed.
Rachael A. Robinson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Colleen M. Tiedemann
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Oscar Delatorre pled no contest to second
degree robbery and a firearm enhancement. (Pen. Code, § 211,
12022.5, subd. (a).1) The parties agreed Delatorre would be
sentenced to a total of 10 years, and also agreed he would be
released temporarily, surrender in November 2019, and be
sentenced in January 2020. Delatorre failed to surrender as
agreed. After he was apprehended more than a year later, the
court sentenced him to 15 years.
Delatorre asserts on appeal that the trial court abused its
discretion in sentencing him for a term higher than the
bargained-for term. He asks that we remand the case and order
the trial court to sentence him to 10 years. Notably, Delatorre
does not seek to withdraw his plea. Delatorre is not entitled to
the remedy he seeks. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2018 the People filed an information
charging Delatorre and two codefendants with crimes committed
on August 19, 2017. Delatorre was charged with felony second
degree robbery (§ 211, count 1), assault with a firearm (§ 245,
subd. (a)(2), count 2), and possession of a firearm by a felon (§
29800, subd. (a)(1), count 3). The People also alleged as to count
1 that Delatorre personally used a firearm (§ 12022.53, subd. (b),
(e)(1)), and as to counts 1 and 2 that the crimes were committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
Delatorre initially pled not guilty, but on the date set for
trial, October 21, 2019, the parties announced they had reached a
plea bargain. The following exchange occurred in court:
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
“The court: Oscar Delatorre, it’s count 1, which is the
robbery, high term of five years, plus – People, you’re going
to amend to add a 12022.5(a)?
“Mr. Smith [prosecutor]: Yes, your honor.
“The court: Okay. And there is a midterm of five years for
that. So it’s a total of ten years state prison.
“Mr. Delatorre, I will allow you to be out for a little bit
longer to get your affairs in order, but you’re going to need
to surrender the week before the week of Thanksgiving,
and then it sounds like everybody wants to be sentenced
after the holidays. So I’ll formally sentence you after the
holidays, but you have to surrender during that week of
November 18.
“Is that your understanding of the plea agreement, sir?
“Defendant Oscar Delatorre: Yes.
“The court: Is this an offer that you want to take?
“Defendant Oscar Delatorre: Yes.”
The court discussed the plea agreements of the
codefendants, then confirmed with each defendant that he
understood the consequences of his plea. The court then took the
defendants’ pleas; Delatorre pled no contest to count 1 and
admitted the gun allegation. The court noted that the parties
had agreed that the sentencing hearing would be on January 7.
The following exchange then occurred:
“The court [to Delatorre’s counsel]: What date is your
client going to be surrendering?
“Mr. Cook: November 21st.
“The court: All right. So Oscar Delatorre, it’s important
that you understand that this plea will be retracted and
will go back to all of the original charges if you don’t show
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up on November 21st. Okay. So all bets are off. You could
be sentenced to the max. I know you have always made
your court dates. You have been good about that. This
would be a bad time for you to miss a court date. It would
also be a bad time for you to pick up any new cases. So
make sure you don’t have any last celebrations, last hurrah
that ends up with the police being called or any other new
charges.
“Do you understand, sir?
“Defendant Oscar Delatorre: Yes, ma’am.
“The court: If that happens, if there were new charges,
again, this deal will be off the table, we would start fresh,
and you could potentially face even new charges being filed.
“Okay.
“Do you have any questions?
“Defendant Oscar Delatorre: No.”
Delatorre did not surrender on November 21, 2019. He was
arrested pursuant to a bench warrant issued for his failure to
appear. In January 2021, his counsel filed a sentencing
memorandum requesting “leniency in this matter” and asking
“that the original plea bargained sentence be imposed with no
further sanction.” The memorandum stated that at the time the
nonappearance warrant was issued, Delatorre was parent to a
newborn, the child’s mother was unemployed, and “Mr. Delatorre
felt that his obligation was to provide food and housing for his
newborn.” Delatorre did not request to withdraw his plea.
At the sentencing hearing on January 27, 2021, the court
acknowledged Delatorre’s sentencing memorandum and asked
counsel if he had anything to add. Delatorre’s counsel said that
Delatorre’s purpose in not surrendering was to continue working
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to provide for his family. Delatorre told the court he was sorry
for not going “about things the right way,” and now he was ready
to “clear my time and get back to my family.” The court said,
“Mr. Delatorre, it’s a little too late for apologies at this point. You
knew exactly what would happen if you didn’t show up. You
made that choice. We talked about it.” The court acknowledged
that sentence in the plea agreement had been for 10 years, but
sentenced Delatorre to five years for the robbery, plus 10 years
for the firearm enhancement, for a total of 15 years on count 1.
The court dismissed counts 2 and 3 pursuant to the plea
agreement.
Delatorre timely appealed. He did not obtain a certificate
of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).)
DISCUSSION
Delatorre asserts that the court abused its discretion by
imposing a longer sentence, because he was “not given the benefit
of the bargain.” He asks that this court vacate his sentence,
remand, and instruct the trial court to impose the plea agreement
sentence of 10 years. He states that he is not seeking to
withdraw his plea; he is asserting only that the court’s
“unilateral decision to impose a higher sentence than that which
was negotiated by the parties” was an abuse of discretion. “We
review a trial court’s sentencing decisions for an abuse of
discretion, evaluating whether the court exercised its discretion
‘in a manner that is not arbitrary and capricious, that is
consistent with the letter and spirit of the law, and that is based
upon an “individualized consideration of the offense, the offender,
and the public interest.”’” (People v. Panozo (2021) 59
Cal.App.5th 825, 837.)
5
A court’s obligation to comply with the terms of a plea
agreement is addressed in section 1192.5. In general, “[u]nder
section 1192.5, if a plea agreement is accepted by the prosecution
and approved by the court, the defendant ‘cannot be sentenced on
the plea to a punishment more severe than that specified in the
plea....’ The statute 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 (2001) 25 Cal.4th 1212,
1217.) A defendant may waive section 1192.5 rights in what is
commonly called a “Cruz waiver.” (See People v. Cruz (1988) 44
Cal.3d 1247, 1254 fn. 5 (Cruz) [a “defendant fully advised of his
or her rights under section 1192.5 may . . . expressly waive those
rights”].)
Delatorre does not cite or rely on section 1192.5, although
he asserts that he never executed a Cruz waiver.2 He did not
seek to withdraw his plea below, and does not seek to do so on
appeal. Delatorre acknowledges he did not obtain a certificate of
probable cause (§ 1237.5), and asserts that his appeal involves
only “matters occurring after the plea . . . that do not affect the
validity of the plea.” (Cal. Rules of Court, rule 8.304(b)(2)(B); see
also People v. Rabanales (2008) 168 Cal.App.4th 494, 501 [where
the defendant alleges “breach of the plea agreement by the court,
which . . . occurred after entry of the plea and pertains only to a
2 Delatorre asserts in passing that the court did not provide
“an express opportunity to waive his right to withdraw his plea”
at the time of the plea agreement, but he does not contend this
was error. Notably, “advisement error and violation of a plea
bargain are two different things.” (People v. Villalobos (2012) 54
Cal.4th 177, 185.)
6
matter involving sentencing,” review may be appropriate without
a certificate of probable cause].)
The remedy for violation of a plea agreement “depends on
the circumstances of each case,” and the “typical remedy is to
allow the defendant to withdraw his or her guilty plea and go to
trial on the original charges.” (People v. Renfro (2004) 125
Cal.App.4th 223, 233; see also People v. Kim (2011) 193
Cal.App.4th 1355, 1362.) “The goal in providing a remedy for
breach of [a plea] bargain is to redress the harm caused by the
violation without prejudicing either party or curtailing the
normal sentencing discretion of the trial judge. The remedy
chosen will vary depending on the circumstances of each case.
Factors to be considered include who broke the bargain and
whether the violation was deliberate or inadvertent, whether
circumstances have changed between entry of the plea and the
time of sentencing, and whether additional information has been
obtained that, if not considered, would constrain the court to a
disposition that it determines to be inappropriate.” (People v.
Mancheno (1982) 32 Cal.3d 855, 860 (Mancheno).)
“[A] defendant should not be entitled to enforce an
agreement between himself and the prosecutor calling for a
particular disposition against the trial court absent very special
circumstances. The preferred remedy in that context is to permit
a defendant to withdraw his plea and to restore the proceedings
to the original status quo. . . . [I]t is not intended that a
defendant and prosecutor be able to bind a trial court which is
required to weigh the presentence report and exercise its
customary sentencing discretion.” (People v. Kaanehe (1977) 19
Cal.3d 1, 13-14; see also People v. Loya (2016) 1 Cal.App.5th 932,
949-950.) Thus, “California courts . . . generally disfavor the
7
remedy of specific enforcement of a failed plea bargain when
‘specifically enforcing the bargain [will limit] the judge’s
sentencing discretion in light of the development of additional
information or changed circumstances between acceptance of the
plea and sentencing.’” (In re Alvernaz (1992) 2 Cal.4th 924, 942;
see also People v. Calloway (1981) 29 Cal.3d 666, 671 [“ordering
specific performance would prevent the trial court from
exercising its sentencing discretion, forcing the court to impose a
sentence it expressly rejected as inappropriate”]; Mancheno,
supra, 32 Cal.3d at p. 861 [“Specific enforcement is appropriate
when it will implement the reasonable expectations of the parties
without binding the trial judge to a disposition that he or she
considers unsuitable under all the circumstances”).)
Delatorre does not cite any authorities supporting his claim
that the trial court was required to impose the plea bargain
sentence under the circumstances. Instead, he relies exclusively
on cases focused on section 1192.5, even though he neither cites
section 1192.5 nor seeks the remedy that section provides.
Delatorre cites two cases with parallel fact patterns, People v.
Morris (1979) 97 Cal.App.3d 358 (Morris) and People v. Jensen
(1992) 4 Cal.App.4th 978 (Jensen), in which the defendants
agreed to plea bargains that included agreements that the
defendants would be released and submit to sentencing at a later
date. The courts purported to approve of the plea deals, but
instead of sentencing the defendants to the agreed-upon terms,
the courts followed general “policies” intended to ensure the
defendants’ return: they sentenced the defendants to higher
terms, stayed the sentences, and told the defendants that if they
appeared at sentencing the higher term would be vacated and the
agreed-upon term would be imposed, but if they did not appear at
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sentencing the higher sentence would be remain in place.
(Morris, supra, 97 Cal.App.3d at p. 360 and fn. 1; Jensen, supra, 4
Cal.App.4th at p. 980.) Both defendants failed to appear, and
after they were apprehended, they moved to withdraw their
pleas. The courts denied the motions and imposed the higher
sentences. (Morris, supra, 97 Cal.App.3d at p. 362; Jensen,
supra, 4 Cal.App.4th at p. 981.)
The Court of Appeal reversed both judgments, finding that
the courts’ policies of sentencing defendants without regard to the
plea agreements violated section 1192.5. The Jensen court,
relying on Morris, stated that “the trial court maintained a
return policy similar to those criticized in the Morris line of cases
and sentenced appellant pursuant to such policy rather than the
plea bargain agreement reached between appellant and the
district attorney.” (Jensen, supra, 4 Cal.App.4th 978, 982.) The
remedy in both cases was to allow the defendant to withdraw the
plea. As the Morris court stated, “Since the defendant was not
accorded the full benefits of the negotiated plea bargain,
unhindered by the invalid condition, he was entitled to withdraw
his plea of guilty and enter a new and different plea to the
original charges upon reinstatement.” (Morris, supra, 97
Cal.App.3d at p. 364; see also Jensen, supra, 4 Cal.App.4th at p.
984 [remanding “with directions to the trial court to set aside
appellant’s guilty plea, reinstate the original charges, and
conduct such further proceedings as may be appropriate”].)3
3Delatorre also cites People v. Barrero (1985) 163
Cal.App.3d 1080, a section 1192.5 case similar to Morris, in
which the court also remanded to allow the defendant to
withdraw his plea.
9
Delatorre states that the facts of Jensen and Morris are
indistinguishable, and that those cases support his position.
First, he asserts that here, “the return provision was never a
valid part of the plea bargain.” However, the record makes clear
that the parties agreed to the delayed sentencing schedule as
part of their plea negotiations. The court recited the terms of the
agreement to the parties, including the release, return, and
sentencing schedule (“you’re going to need to surrender the week
before the week of Thanksgiving,” “it sounds like everybody
wants to be sentenced after the holidays”), and confirmed that
this schedule was part of the agreement (“Is that your
understanding of the plea agreement, sir? [Delatorre]: Yes.”).
This record is sufficient to show that the return and sentencing
dates were part of the parties’ agreement. (See, e.g., People v.
Casillas (1997) 60 Cal.App.4th 445, 453 (Casillas) [the transcript
left “no doubt” that a plea agreement with specific terms had
“already had been negotiated off the record”].)
Second, Delatorre asserts that the trial court’s “unilateral”
imposition of a longer sentence mirrors those in Jensen and
Morris, even though here the court “did not explicitly state that
its increased sentence was based on a policy.” We disagree. The
record demonstrates that court’s sentence was based on facts
specific to this case. The court clearly considered the length of
Delatorre’s absence, his explanation for why he did not appear for
sentencing, and the fact that the parties had negotiated to
dismiss counts 2 and 3. The sentence was therefore unlike the
harsher sentences in Jensen and Morris, which were imposed at
the time of pleading and based only on information known at the
time of the plea, not any later breach of the plea agreement. A
sentence that is not “a de facto summary punishment for
10
nonappearance” but instead is “the result of trial court discretion
based on all the circumstances” is “responsive to the concerns
voiced by” Morris and similar cases. (Casillas, supra, 60
Cal.App.4th at pp. 452-453.)
Even assuming for the sake of argument, however, that the
trial court’s imposition of a longer sentence was comparable to
the policies imposed in Jensen and Morris, those cases do not
support the remedy Delatorre seeks. Jensen and Morris rely on
section 1192.5, and hold that the courts’ errors entitled
defendants to withdraw their pleas. Here, Delatorre does not
assert any rights under section 1192.5; he states that he “is not . .
. seeking to withdraw his plea,” but that “the sentencing court
was bound by the plea agreement.” Neither Jensen, Morris, nor
any other source cited by Delatorre supports such a remedy
under the circumstances. To the contrary, Delatorre asks this
court to order specific enforcement of the plea agreement without
regard to his own breach of the plea agreement and other events
occurring after the plea was entered, thereby “prevent[ing] the
trial court from exercising its sentencing discretion, forcing the
court to impose a sentence it expressly rejected as inappropriate”
at the time of the sentencing hearing. (People v. Calloway, supra,
29 Cal.3d at p. 671.) We decline to do so.
Delatorre has not shown that he is entitled to be sentenced
to the term in the plea agreement despite his failure to appear.
Because he does not invoke his right under section 1192.5 to
withdraw his plea (presumably to avoid exposure to renewed
prosecution of the dismissed charges), we do not consider whether
11
such a remedy would have been appropriate, had he requested
it.4
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
4 Because we reject Delatorre’s contentions, we do not reach
the Attorney General’s alternative argument that the longer
sentence following nonappearance was enforceable because it was
part of the parties’ original plea agreement.
12