P. v. Askew

Filed 8/25/09 P. v. Askew CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Pursuant to a plea agreement, defendant Nathaniel Askew pleaded no contest to possession of cocaine for sale (Health & Saf. Code, 11351), and resisting an executive officer (Pen. Code, 69). The plea agreement provided that defendant would receive a two-year eight-month state prison sentence, but that if he failed to appear for sentencing, the plea would be open. Defendant failed to appear for sentencing, was eventually apprehended, and was sentenced to serve three years eight months in prison, representing the midterm of three years on the drug offense, and eight months (one-third the midterm) on the resisting an officer count.

Defendants principal argument on appeal is that he was deprived of constitutional rights to a jury determination that any failure to appear was willful. He maintains in this regard that his plea agreement did not contain any Cruz [People v. Cruz (1988) 44 Cal.3d 1247] waiver. Defendant also argues that: imposition of a greater sentence for [his] alleged failure to appear was Cunningham [Cunningham v. California (2007) 549 U.S. 270] error; he was deprived of constitutional rights to notice and a hearing in connection with his violation of the plea agreement; and the court failed to comply with Penal Code section 1192.5.[1] We find no error and affirm the judgment.

I. BACKGROUND

Defendant signed a plea form stating that the offenses to which he was pleading carried a maximum sentence of four years eight months, and that: The following promises have been made to me as a condition of my plea(s). No other promises have been made. I understand that if the Court refuses to follow this plea bargain then I will be allowed to withdraw my plea(s) of guilty or no contest and enter a not guilty plea. [] 2 years 8 [months] state prison [] If [defendant] fails to appear for sentencing or probation appointment or commits new offense, plea is open [] minimum fines [] remaining charges and allegations dismissed [] time for sentencing waived, sentencing date 6/22/07 8:30. The italicized language was apparently added at the plea hearing, where the matter of the open plea was discussed as follows:

[Prosecutor]: This will be an open plea. If he fails to check in with probation or violate[s] any laws

The Court: So do you want that to also read that he has to make a probation appointment?

[Prosecutor]: Yes.

The Court: Any objection [defense counsel]?

[Defense counsel]: Thats fine.

The Court: If defendant fails to appear for sentencing or his probation appointment or commits a new offense, the plea is open.

[Prosecutor]: Thank you, your Honor.

Defendant also had confirmed with the court that he had reviewed the plea form with his counsel, and did not have any questions about the form or what was happening.

The sentencing hearing was continued to July 6, 2007, and then to July 31, 2007. Defendant did not appear for the July 31 hearing. Defense counsel presented documentation showing that defendant had received medical treatment on that date. The prosecution objected to a further continuance, and the court replied, I know its been pending a long time, but based on the evidence before me I have to conclude that there was some medical emergency today, and that it appears to excuse his presence today. The court continued the sentencing to August 7, 2007. Defendant failed to appear on August 7, and the defense presented further evidence of health problems that allegedly prevented his attendance. The prosecutor argued that it was time to pull the plug on [defendant]. Lets get him in custody. Well advise everyone that he has . . . medical issues, and see if they really exist once hes in custody . . . . The court issued a warrant for defendants arrest.

Defendant was arrested in April 2008, and came before the court for sentencing on July 14, 2008. The court asked the parties whether they agree[d] that this is an open plea now, and defense counsel said, I guess [defendant] would probably want me to argue that it is not, because his view is that he didnt voluntarily fail to appear, that he had been tak[ing] care of his medical issues. That he was not present at the very last sentencing date, that is true. The court responded, Okay. Then Im going to treat this as an open plea, and proceeded to impose the three-year eight-month sentence.

II. DISCUSSION

Defendant cites Cruz, supra, 44 Cal.3d at page 1253, for the proposition that a defendant has a right to a jury trial on any alleged failure to appear. Defendant submits that his plea agreement included no Cruz waiver, and thus that he was entitled to a jury trial on whether his failure to appear for sentencing as agreed was willful. (See id. at p. 1254, fn. 5 [defendant may agree at time of plea that court can impose greater punishment if defendant willfully fails to appear for sentencing].)

Defendant forfeited this argument by failing to raise it in the trial court. Defendant was advised that he could withdraw his plea if the court did not follow the plea agreement. However, he did not move to withdraw the plea, and thereby waived his right to object on appeal to the alleged deviation from the plea agreement. (People v. Murray (1995) 32 Cal.App.4th 1539, 1546.) If the defendant shows good cause for objection by showing that he or she has been denied a right reserved by the plea bargain, not merely that he or she is disappointed with the outcome, the defendant should seek withdrawal. Unless the motion is made in the trial court, the defendant is precluded from seeking relief on appeal. (2 Erwin et al., Cal. Criminal Defense Practice (2008) Arraignment & Pleas, ch. 42.44, p. 42-154.12 (rel. 62-12/2008), fns. omitted.)

The argument also fails on the merits because a defendant does not have the right to a jury trial on the issue in question. For nearly 20 years, since the decision in People v. Vargas (1990) 223 Cal.App.3d 1107, 1109, 1113 (Vargas), courts have enforced defendants agreements to the imposition of greater punishment if they willfully violate the conditions of their release. Defendant cites no reported case during that time, and we are aware of none, where a jury determined whether the defendant had good cause for failing to appear, or otherwise breaching a Cruz/Vargas agreement. Defendants have, if anything, fewer due process rights in connection with Cruz and Vargas waivers than they do in the context of revocation of probation (see People v. Carr (2006) 143 Cal.App.4th 786, 789 (Carr)), where they have no right to a jury trial ( 1203.2, subd. (b)).

No support for the alleged jury trial right can be found in Cruz, which paved the way for cases like the one at bench where a defendant effectively agrees to an open plea in the event of his nonappearance at sentencing. (E.g., People v. Masloski (2001) 25 Cal.4th 1212, 1215, 1223-1224 (Masloski).)[2]Cruz noted that the failure to appear must be willful (Cruz, supra, at p. 1254, fn. 5), but did not address how willfulness would be determined.

Apart from Cruz, defendants jury trial argument rests on cases involving plea forms where Cruz and Vargas waivers are set forth at length and defendants acknowledge among other things that any willful violation of these terms [exposing the defendant to greater punishment] will be decided by the sentencing judge without a jury and by a preponderance of the evidence. (E.g., People v. Rabanales (2008) 168 Cal.App.4th 494, 505 (Rabanales); People v. Vargas (2007) 148 Cal.App.4th 644, 652 (Vargas II).) While some language in these cases suggests the existence of a jury trial right on the willfulness issue,[3] the statements were made in the course of rejecting defense arguments for a jury trial. Thus, neither of these cases nor any others establish that defendant had the jury trial right he posits.

Cruz, Vargas, and their progeny serve the objective that plea bargains implement the reasonable expectations of the parties . . . . (Vargas, supra, 223 Cal.App.3d at p. 1112, quoting Cruz, supra, 44 Cal.3d at p. 1250, fn. 2.) While it may be good practice for the plea agreement to spell out that the judge will decide whether the agreement has been willfully violated, that understanding was implicit here, just as it was implicitly understood that the failure to appear had to be willful to permit the imposition of a greater sentence. These understandings were confirmed by the parties conduct: they argued whether the failures to appear were excusable, and never broached the subject of a jury trial. (See Rabanales, supra, 168 Cal.App.4th at pp. 502-503 [ A negotiated plea agreement is a form of contract . . . . [I]f the terms of a promise are in any respect ambiguous or uncertain . . . [t]he mutual intention . . . is determined by objective manifestations of the parties intent, including . . . the subsequent conduct of the parties. ].) [T]he trial court merely implemented the reasonable expectations of the parties (Carr, supra, 143 Cal.App.4th at p. 794) in deciding whether defendant had good cause for failing to appear for the sentencing.

Defendants argument for a jury trial right under Cunningham, supra, 549 U.S. 270 is also untenable. We agree in this respect with the Rabanales court, which wrote: A violation of a Vargas waiver is a breach of the agreement. A trial courts determination as to whether there was a breach of the agreement is not the same as making a finding in aggravation or a discretionary sentencing choice as contemplated by Cunningham or the other . . . Supreme Court cases leading up to Cunningham. (Rabanales, supra, 168 Cal.App.4th at p. 502.) Defendant argues that Rabanales is distinguishable because the plea agreement in that case provided for a specific sentence in the event of a breach, whereas the open plea provision here contemplated a further exercise of judicial discretion in setting the sentence, but the above-quoted reasoning is equally persuasive in either situation. Cunningham, supra, 549 U.S. 270 is inapposite for the additional reason that it pertains to imposition of upper term sentences, not a midterm sentence like the one defendant received here. (See People v. Black (2007) 41 Cal.4th 799, 809.)

We also reject defendants claim that he was deprived of rights to notice and a hearing with respect to the finding that he willfully failed to appear for sentencing. There was no confusion as to the issue before the courtwhether sickness excused defendants absencesand the defense was given the opportunity to present evidence and argument on that issue. (See Carr, supra, 143 Cal.App.4th at p. 791 [record showed that defense had adequate notice and opportunity to contest alleged Vargas waiver violation].)

Nor did the court violate section 1192.5. Because the sentence imposed here was consistent with the plea agreement [t]he provisions of section 1192.5 that permit a defendant to withdraw his or her plea if the court withdraws its approval of the plea agreement were not implicated . . . . (Masloski, supra, 25 Cal.4th at p. 1224.)[4]

III. CONCLUSION

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Graham, J.*

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[1] Subsequent statutory references are to the Penal Code.

[2] Since defendants agreement is indistinguishable from the one enforced in Masloski, Masloski confirms, contrary to defendants argument, that he entered into a valid Cruz waiver.

[3] Rabanales observed among other things that the defendant did not indicate a clear intent to preserve his right to a jury trial on any alleged violations of the conditions of his release. (Rabanales, supra, 168 Cal.App.4th at pp. 506, 507, italics added.) Vargas II held that, in the quoted language from the plea form, the defendant had expressly waived his right to have a jury decide whether he committed the robbery which is the fact that supported the trial courts upper term sentence in this case. (Vargas II, supra,148 Cal.App.4th at p. 652, italics added.)

[4] In view of the foregoing conclusions, we need not determine whether defendant waived any of his arguments by virtue of the phrasing of the notice of appeal or the failure to obtain a certificate of probable cause.

* Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.