P. v.
Cross
Filed 3/7/13 P. v. Cross CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
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THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
DENNIS
DEON CROSS,
Defendant and Appellant.
E055055
(Super.Ct.Nos. BLF004863 &
BLF004992)
OPINION
APPEAL from the Superior Court of
County. Thomas N.
Douglass, Jr., Judge. (Retired judge of
the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, §
6 of the Cal. Const.)
Affirmed.
Renee Paradis, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Andrew Mestman and Steve Oetting, Deputy Attorneys General,
for Plaintiff and Respondent.
Defendant and appellant Dennis Deon
Cross was charged with numerous offenses.
He agreed to plead guilty to one felony charge, admit one strike prior
and three prison term priors, in exchange for dismissal of the remaining
counts. Pending sentencing, defendant
was released on his own recognizance pursuant to a “Cruz waiver.â€
name="_ftnref1" title="">[1]
That is, defendant promised to appear for sentencing and agreed to an
additional three years of incarceration if he did not appear as promised. Defendant failed to appear for sentencing,
and became subject to the increased sentence under the Cruz waiver.
Now, however, defendant claims he
should be allowed to withdraw his plea, asserting that a mistake in the amount
of presentence custody credits he may
be awarded was a material part of the plea bargain. We affirm.
FACTS
AND PROCEDURAL HISTORY
The Blythe Police Department was
conducting an investigation into some complaints of identity theft involving
fictitious checks. By May
22, 2008, the
investigating officers had focused their suspicions on defendant. Officer Scott Adams had learned that
defendant was residing with his girlfriend in her apartment, so he and Corporal
Heriberto Cavazos went there to conduct a parole search of defendant’s
residence. As the officers entered the
apartment to conduct the search, defendant fled out a window.
The search turned up mail addressed
to persons who had been victims of identity theft and a laptop computer
connected to a printer, with blank checks loaded into the printer. The blank checks corresponded to other,
completed checks that had been created in the names of some of the identity
theft victims. The victims had not authorized
checks to be written on their accounts to the payees of the completed
checks. The officers also found drugs
and drug paraphernalia in the master bedroom, as well as two rounds of firearm
ammunition.
As a result of the investigation,
and after a preliminary hearing,
defendant was held to answer on charges of receiving stolen property (Pen.
Code, § 496, subd. (a), counts 1, 2 & 3); possession of
counterfeiting apparatus (Pen. Code, § 480, subd. (a), count 4);
unlawful use of another person’s information (Pen. Code, § 530.5, subd. (a),
counts 5, 6 & 7, identity theft); possession of a blank check with intent
to defraud (Pen. Code, § 475, subd. (b), count 8); possession of a
completed check with intent to utter and defraud (Pen. Code, § 475,
subd. (c), count 9); conspiracy to utter fraudulent checks (Pen. Code,
§§ 182, 476, count 10); conspiracy to commit identity theft (Pen. Code,
§§ 182, 530.5, count 11); possession of methamphetamine (Health & Saf.
Code, § 11377, count 12); being a felon in unlawful possession of firearm
ammunition (Pen. Code, § 12316, subd. (b), count 13); and
& Saf. Code, § 11364, count 14, the sole misdemeanor charge). The amended information also alleged that
defendant had suffered one prior strike conviction and four prior separate
prison term convictions. In addition,
the amended information alleged that defendant had suffered numerous prior
felony convictions for purposes of Penal Code section 1203, subdivision (e)(4).
Later, the People moved to
consolidate these charges with other charges (possession of stolen property and
possession of drug paraphernalia). The
court granted the joinder motion.
Shortly before the date jury trial
was set to begin, defendant changed his plea.
He agreed to plead guilty to count 4 (possession of counterfeiting
equipment, Pen. Code, § 480), and admitted his prior strike conviction, as
well as three prison term priors. The
plea agreement provided that defendant would be sentenced to a second-strike
prison term of six years (three-year aggravated term, doubled) upon his
surrender at sentencing. The remaining
charges would be held open pending defendant’s timely surrender. Pursuant to a Cruz waiver, defendant would be subjected to an additional three
years’ imprisonment for the prior prison terms if he did not appear as ordered
for sentencing. Defendant’s exposure was
a minimum of six years and a maximum of nine years. The plea agreement form awarded defendant
credit for pretrial custody time served of 382 actual days in custody, and 382
days of conduct credits under Penal Code sections 4019 and 2933, for a total of
764 days.
On the date of the sentencing
hearing (March 11, 2010), defendant failed to appear, and a bench warrant was
issued. Defendant did not appear in
court again until nearly a year later, in February 2011. In August 2011, defense counsel filed a
motion in the trial court to withdraw defendant’s guilty plea on the ground of
alleged incompetence of trial counsel:
“defendant’s prior trial counsel did not make any meaningful
investigation of the facts and merely advised defendant that his only choice
was to plead guilty. Defendant was not
fully advised as to the elements of the charged offenses and the available
defenses. Defendant pled guilty, despite
his desire to go to trial because he was told that pleading guilty was the only
way he could get released to see his child that had been born while he was in
custody awaiting trial.†In addition,
defendant asserted that, when he pleaded guilty, “he believed he would be
eligible to earn good time/work time credits totaling 50% toward the completion
of his sentence and this is not true as a matter of law.†Defendant filed a declaration averring, to
the same effect, that his attorney had not investigated the facts of the case
or advised defendant of the elements required to be proven nor any defenses
available. Defendant had falsely told
the court that he had discussed these matters with counsel, because the
attorney told defendant the only way he could get a brief release from custody
was to plead guilty. Defendant claimed
he was under extreme emotional distress because he had been in custody awaiting
trial for over a year, and in that interval his child had been born. He had never been able to see or hold his
child. Defendant also averred that he
“believed that, due to a change in the law, I would be eligible to earn good
time/work time credits that amounted to day for day credits toward the entire
sentence. Instead, I have now learned
that the maximum credits I may earn toward completion of the sentence are
20%. I would not have pled guilty if I
knew the truth about my eligibility for credits.â€
The People opposed the motion. The prosecutor argued that defendant had
failed to establish clear and convincing proof of good cause to withdraw the
guilty plea. Defendant’s motion amounted
to a claim of ineffective assistance of counsel, but failed to take account in
the record of the evidence of the offenses, and the steps taken by prior
counsel. The police reports and
preliminary hearing testimony showed the evidence against defendant on the
charged offenses. Defendant already had
a lengthy criminal record, evidenced by numerous prior convictions and prison
terms. Any potential testimony defendant
could have offered would be subject to impeachment with these prior
offenses. Crime scene photos
substantiated the items of evidence found during the search, and those items
closely tied defendant to the charged offenses.
Prior counsel had also pursued a motion to suppress the evidence found
during the parole search; the attorney was actively involved in this
on-the-record assessment of the strengths and weaknesses of the prosecution’s
case. The record of the change-of-plea
hearing showed that the trial court expressly examined defendant to determine
whether he had a full opportunity to discuss the matter with his attorney and
to be advised of the consequences of his plea; defendant assented on the record
to both these propositions. Defendant’s
only evidence to contradict the record was that he lied in his responses to the
court at that hearing. The People also
represented that, during some of the proceedings, defendant had spoken directly
to the prosecutor, with defense counsel present, seeking to persuade the
prosecutor to grant probation or drug treatment; in none of these negotiations
did defendant claim innocence.
The trial court denied defendant’s
nine-year sentence defendant had agreed to upon his Cruz waiver.
Defendant filed a notice of appeal
specifying the ground that, “Acceptance of [the] plea was based on incorrect
calculation of more credits that Defendant ended up receiving.†He requested a certificate of probable cause
on the ground of “ineffective assistance of counsel, failure to advise of the
correct maximum sentence for charges to which pleas were entered and incorrect
amount of credits I would receive and incorrect percentage of time which I was
led to believe I would serve for the sentence.â€
The trial court granted the certificate of probable cause.
ANALYSIS
I. Defendant Failed to Establish Good Cause
to Withdraw His Plea
Defendant contends that a material
provision of his plea bargain was that he would be granted “two-for-twoâ€
custody credits, because, at the time of his plea, he was expressly awarded 382
days of actual custody credit, and an equal number, 382 days, of conduct
credits. After defendant failed to
appear for sentencing, and he was ultimately returned for sentencing, the trial
court awarded him 588 days of actual custody credit (382 days as calculated on
the day of the plea bargain, plus 206 days between February 14, 2011, and the
date of sentencing on September 7, 2011), plus 294 total days of presentence
conduct credits. The trial court
calculated the conduct credits on the basis of a six-for-four ratio in relation
to the 588 days of actual custody credit (588÷4=147; 147x2=294).
Defendant complains that the 294
days of conduct credits was even less than the 382 days of conduct credits
previously stated in the plea agreement.
He argues that he is due, at a minimum, 88 additional days of conduct credits
(382-294=88), if he is to receive what he was actually awarded pursuant to his
plea bargain. He further argues that the
plea bargain effectively awarded him two-for-two credits explicitly on all his
presentence conduct credits, and implicitly promised the same rate of conduct
credits for any time he would serve (i.e., state prison custody).
Under the terms of the law, however,
defendant was statutorily ineligible for two-for-two presentence conduct
credits because he had a prior strike conviction. Defendant contends that, if the trial court
is unable to fulfill the terms of the plea bargain awarding two-for-two conduct
credits because such an award violates the applicable statutes, then the only
remedy is to allow him to withdraw his plea.
That is, if specific performance of the bargain cannot be granted, then
he must be permitted to withdraw his plea.
(In re Williams (2000) 83
Cal.App.4th 936, 944, 946.)
The People respond that the
presentence conduct credits were not a material part of the plea bargain and
resulted from trial court error that occurred after the plea agreement had been
made. The written plea agreement
provided that defendant would plead guilty to a three-year aggravated term on
count 4,
title="">[2] and that he would admit one strike prior and
three prison term priors. Three one-year
terms would be added to defendant’s prison sentence if he failed to appear at
sentencing pursuant to the Cruz
waiver. When defendant completed and
signed the change-of-plea agreement, the credits to be awarded were listed as
382 days of actual custody, 190 days of conduct credit, for a total of 572 days
of credit. At the change-of-plea
hearing, however, the following sequence of events took place:
First, the court recited the terms
of the bargain: Defendant would plead
guilty to count 4, and admit one strike and three prior prison terms. The maximum exposure on the pleaded charge
was nine years. Defendant would be
released from custody on a Cruz
waiver, and if he returned at the time of sentencing, he would receive a
six-year sentence. If he did not return
on time, he would receive nine years.
Defendant acknowledged that this was the bargain he had agreed to. No mention was made of custody credits.
Second, the court went over the
meaning of the Cruz waiver, and
specified the penalty that defendant would pay if he did not return for
sentencing as ordered. Defendant stated
that he understood.
Third, the trial court reviewed the
rights defendant had waived and the consequences of defendant’s guilty plea to
a felony offense. The court also
inquired whether defendant had entered into the agreement freely. Defendant stated that he had. Again, up to this point, no mention had been
made of any custody credits.
Fourth, defendant pleaded guilty to
count 4, and admitted the facts underlying the offense (possession of computer
equipment to create blank checks).
Defendant also admitted the strike prior and the three prison term
priors.
Fifth, the court accepted
defendant’s pleas.
Sixth, the court recited again the
terms of the Cruz waiver, and
defendant’s release on his own recognizance.
He also took an Arbuckle
waiver (People v. Arbuckle (1978) 22
Cal.3d 749) so that defendant could be sentenced before a different judge, at a
court that was more convenient for defendant.
Seventh, the court reviewed the
expected sentence that would be imposed when and if defendant appeared for
sentencing on the appointed date: “If
[defendant] shows up as indicated, he will be sentenced as follows: On the 480, he will be sentenced to the upper
term of three years in state prison.
Pursuant to the strike allegation, that will be doubled for a total of
six. The 667.5(b) priors one year will
be imposed but stricken. The total term
. . . would be six years, and the credits, as of today, are actually wrong.
With the change in the credits, it is 382 plus 382. Okay.â€
(Italics added.) Obviously, it
was only then that the court crossed out the figures that had been entered on
the written plea form and wrote in the figure “382†for conduct credits, and
“764†as the total number of credits. Up
to that point, there had been no mention whatsoever of custody credits or
conduct credits.
Manifestly, the award of 382 days of
presentence conduct credit was never contemplated as a material part of the
plea bargain. Rather, as the People
contend here, that was simply a “gift,†a mistake on the part of the trial
court, and a matter that had never been considered in the negotiation of the
plea. When defendant made his bargain,
and signed the papers, the agreement recited an entirely different (and
correct) amount of conduct credits and total credits.
Defendant counters that the trial
court should be bound by the written plea agreement, which “clearly and
explicitly specifies that [defendant] will receive 382 days of conduct
credit.†He argues that the plain
language of the written agreement governs, and no further interpretation of the
agreement is necessary or permitted.
(Citing Buckley v. Terhune
(9th Cir. 2006) 441 F.3d 688, 695-697.)
Defendant posits that “nothing on the face of the agreement itselfâ€
shows that it was the court, and not the district attorney, or defense counsel,
or defendant himself who struck out the earlier number and wrote in “382†as
the number of conduct credit days.
The parol evidence rule will exclude
evidence of a prior or contemporaneous agreement that contradicts the terms of
an integrated writing. (
(1991) 234 Cal.App.3d 973, 1000, overruled on another point in
Production Credit Assn. (2013) 55 Cal.4th 1169, 1179.) “In applying the rule, courts employ a
two-step process to determine whether (1) the writing is an integration
and (2) the collateral agreement is consistent with the written agreement. [Citation.]â€
(Take Me Home Rescue v. Luri
(2012) 208 Cal.App.4th 1342, 1351.)
Here, the plea agreement form provided that, “All the promises made to
me are written on this form, or stated in
open court.†(Italics added.) The writing alone was expressly not a wholly
integrated statement of the agreement; the agreement was intended to include
other terms made express by oral statements in open court. The agreement itself contemplates that the
record of proceedings in open court will be examined to determine if any terms
have been changed, added, or deleted from the written plea bargain form. The examination of the record of the hearing
belies defendant’s facile speculation that it was a party other than the court
that altered the conduct credit calculation, and that the change may have
preceded defendant’s guilty plea.
The calculation of 382 days of
presentence conduct credit was not a bargained for term of the agreement. It was not a material term contemplated at
the time defendant entered into the plea bargain. Rather, the alteration was a (mistaken)
afterthought of the court.
Penal Code section 1018 provides, in
part: “On application of the defendant
at any time before judgment . . . the court may . . . for a
good cause shown, permit the plea of guilty to be withdrawn and a plea of not
guilty substituted. . . .
This section shall be liberally construed to effect these objects and to
promote justice.†The burden of proof
for such a motion lies squarely on the defendant: “The defendant has the burden to show, by
clear and convincing evidence, that there is good cause for withdrawal of his
or her guilty plea.†(
1409, 1415-1416.) Further, “The decision
to grant or deny a motion to withdraw a guilty plea is left to the sound
discretion of the trial court.
[Citations.] ‘A denial of the
motion will not be disturbed on appeal absent a showing the court has abused
its discretion.’ [Citations.] ‘Moreover, a reviewing court must adopt the
trial court’s factual findings if substantial evidence supports them.’ [Citation.]
[¶] To establish good cause to
withdraw a guilty plea, the defendant must show by clear and convincing
evidence that he or she was operating under mistake, ignorance, or any other
factor overcoming the exercise of his or her free judgment, including
inadvertence, fraud, or duress.
[Citation.] The defendant must
also show prejudice in that he or she would not have accepted the plea bargain
had it not been for the mistake.
[Citation.]†(
Defendant’s showing here failed on
both prongs of the test. Taking the
prejudice claim first, defendant did aver that he would not have pleaded guilty
had he known that he would not receive two-for-two conduct credits, but the
trial court was not required to accept such a self-serving statement at face
value. We defer to the trial court’s
factual findings, including its determination that defendant’s claim of
prejudice was not credible. As we have
seen, defendant fully entered into the bargain well before anything was said or
done to (mistakenly) award him two-for-two presentence custody credits. In addition, the bargain defendant received
was significantly favorable without an award of two-for-two credits. In fact, at the change-of-plea hearing, the
court remarked on the matter: “I don’t
know how you worked this out, but your maximum exposure was . . .
close to 18 years the way I figured it out.
Your sentence is one third of that.
Typically, when you are facing that much time, the normal rule of thumb
is figure out what the maximum exposure is and cut it in half, so, in my
opinion, what was due to you is nine years in state prison, so you worked out a
disposition for six. That was
great. . . . This is a
great disposition for you.†Defendant’s
claim—that he would not have pleaded guilty had he known he would not get
two-for-two conduct credits—strains credulity in the face of the number of
charges and the total possible exposure he faced.
Defendant also failed to show that
he was operating under any mistake, ignorance, or other factor that overcame
his free judgment concerning whether to accept the plea. Again, as determined ante, defendant was never, as part of the plea negotiations,
promised anything with respect to the earning of presentence custody
credits. The mistake was the trial
court’s, and it took place after defendant had already made his bargain and
pleaded guilty.
Even if defendant might have
entertained the after-the-fact notion that he was to receive two-for-two
nothing whatever in the record to support the idea that he had any right or
reason to believe or expect to receive an equally favorable credit ratio
against his prison term. Although defendant
claimed that his attorney told him he would only have to serve half his
sentence, we note the complete absence from defendant’s moving papers of any
declaration from former trial counsel concerning the plea negotiations or any
promises made to defendant.
To the extent defendant argued that
he was coerced into pleading guilty because he had been in custody for a year
and had not been able to see or hold his new child, the trial court clearly
found the claim not credible. As the
prosecutor pointed out at the hearing motion, “the argument that he was afraid
that he would never see his son . . . is somewhat specious because
everybody knows, especially [defendant], having been to prison before that,
there was no problem with him seeing his children in a prison scenario at the
visiting center, or even here at the jail he would be able to see his son.â€
The prosecutor further represented
to the court that, contrary to defendant’s representations in his declaration
that he was innocent of the charges, “defendant had requested to speak to me directly,â€
during plea negotiations, because, “I’ve had considerable experience and
knowledge of [defendant], having prosecuted him since 2003 on numerous cases
. . . .†When defendant
spoke directly to the prosecutor, “the topic of the conversation wasn’t that he
wasn’t being properly represented or that he was innocent or anything like
that, [it] was that . . . he wanted . . . some kind of
probation deal.â€
None of the grounds that defendant
presented to withdraw his plea were credible.
Defendant did not bargain for two-for-two conduct credits as part of his
plea agreement; the mistaken award of presentence conduct credits was not a
material term of the plea bargain.
Defendant was not eligible for two-for-two credits, for either
presentence custody or prison custody.
It is ludicrous to believe that defendant regarded the issue of
presentence credits as a critical term, without the promise of which he would
not have pleaded guilty. As the trial
court pointed out, the bargain he did receive was extraordinarily favorable
under the circumstances, and he had fully entered into that bargain and pleaded
guilty before he received the windfall of extra presentence conduct
credits.
We are mindful also that defendant
failed to appear for sentencing, and did not return to California for nearly a
year thereafter. After avoiding his
rightful sentence for over a year, and now that he must suffer increased
punishment as a consequence of failing to abide by his Cruz waiver, defendant’s claim that the promise of custody credits
was essential to the bargain rings particularly hollow. This is a classic case of buyer’s remorse,
now that defendant subjected himself to a nine-year rather than a six-year
prison term. We are not required to
permit defendant to trifle with the courts in such a fashion. The trial court did not abuse its discretion
in denying defendant’s motion to withdraw his guilty plea.
DISPOSITION
The trial court properly denied
defendant’s motion to withdraw his guilty plea.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] People
v. Cruz (1988) 44 Cal.3d 1247, 1249.
name="_ftn2" title=""> [2] At the sentencing hearing, the trial court
noted that the sentence range for the pleaded offense was two, three and four
years, not 16 months, two years and three years. The court imposed the agreed-upon sentence of
six years, based on the middle term, not the aggravated term, doubled as a
second-strike offense.
