People v. King CA1/2 ( 2023 )

Filed 2/2/23 P. v. King CA1/2
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A164289
v.
KENNETH LEE KING, (Solano County
Super. Ct. No. FCR352975)
Defendant and Appellant.
Defendant Kenneth Lee King’s counsel requests that this court
independently review the record pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende). King was informed of his right to file a supplemental
brief and has not done so. Upon our independent review of the record
pursuant to Wende, we conclude there are no arguable appellate issues
requiring further briefing and affirm.
BACKGROUND
A felony complaint filed on July 22, 2020, charged King with one count
of felony identifying information theft with a prior. (Pen. Code, § 530.5,
subd. (c)(2).)1
On May 21, 2021, the parties reached a plea agreement in this case and
another (case No. FCR351744), filed in January 2020, in which King had
1 The underlying facts of the offense are not relevant to this appeal.
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been charged with a separate violation of section 530.5, subdivision (c)(2).
The plea agreement specified that King would plead no contest to one count
of felony identifying information theft in each of the cases and would be
sentenced to “16 m concurrent, 8 m on home detention, LCA, ASP . . . [¶] 8 m
supervision.” King agreed to a provision known as a Cruz waiver (People v.
Cruz (1988) 44 Cal.3d 1247) which stated: “I understand and agree that if I
fail to appear on the date set for . . . sentencing without a legal excuse, . . . my
plea will become an ‘open plea’ to the court, I will not be allowed to withdraw
my plea, and I may be sentenced up to the maximum term of
imprisonment . . .” of three years and eight months.2
At the hearing on May 21, King confirmed he had reviewed the plea
form with his attorney, understood his rights and waived them, and
understood the possible consequences of the plea. The trial court accepted
King’s pleas and set sentencing for July 1, 2020. After King verbally
promised to return to court, the court told him, “If you fail to make that
promise, the deal you’ve reached, eight months in/eight months out, the
A.S.P., I’m not bound on that. If you keep your promise, then I’m bound to
keep mine.” King said he understood.
On July 1, however, King did not appear for sentencing. His attorney
had “no representations” and the court issued a no-bail bench warrant.
On November 15, King appeared in court and his attorney stated that
King had met with probation after the May hearing to get his ankle monitor
set up and failed to appear for sentencing because “he was under the
2 Absent such a waiver, when a trial court withdraws its approval of a
plea bargain because the defendant fails to appear for sentencing, the
defendant must be permitted to withdraw his or her plea. (Cruz, supra,
44 Cal.3d at p. 1249, 1254, fn. 5; Pen. Code, § 1192.5.)
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impression that probation would get in contact with him and let him know
what the next steps were.” King was remanded without bail.
At a sentencing hearing three days later, defense counsel argued that
King had never previously failed to appear, this was “a new thing for him”
and “there appears to have been a major mixup in regards to this failure to
appear.” Counsel asked the court to honor the plea agreement and, if it was
not willing to do so, to impose a low term sentence; the prosecutor argued the
court should not reinstate the plea and should impose a middle term
sentence. The court stated that it was no longer bound by the plea
agreement due to the Cruz waiver and failure to appear, and “based on the
changed circumstances” it did “not think continuing to abide by that plea
agreement would be in the interest of justice. Finding that the aggravating
and mitigating factors “balance out,” the court imposed the middle term of
two years in the present case and the same term in case No. FCR351744, to
run concurrently.
King, through counsel, filed a timely notice of appeal, stating the
appeal was “based on the sentence or other matters occurring after the plea
that do not affect the validity of the plea.”3
DISCUSSION
We have reviewed the record and found no arguable issues.
King signed a plea agreement containing a Cruz waiver that expressly
informed him the court would not be bound by his plea agreement if he failed
to appear for sentencing without legal excuse. The court orally advised him
to the same effect at the plea hearing. King failed to appear, in violation of
3 King filed a separate notice of appeal in case No. FCR351744. That
appeal, case No. A164288, was heard and decided by Division One of this
court.
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the Cruz waiver. King was represented by counsel who argued ably on his
behalf. The court stated the reasons for its sentencing choice and acted well
within its discretion in imposing the middle term sentences. (Pen. Code,
§ 1170, subds. (b) & (c).)
Accordingly, we agree with King’s counsel that there are no issues that
could undermine the judgment.
DISPOSITION
The judgment is affirmed.
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STEWART, P.J.
We concur.
MILLER, J.
MARKMAN, J. *
People v. King (A164289)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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