P. v. Islas

Filed 8/1/08 P. v. Islas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT:^*

Appellant, Guillermo Mata Islas, pleaded guilty to two counts each of making a fraudulent representation for the purpose of obtaining compensation within the meaning of Labor Code section 3207, presenting false or misleading information on an insurance claim, and failure to disclose or concealing an event affecting the right or entitlement to an insurance benefit. Islas was sentenced to six years in state prison and he contends the trial court failed to provide a statement of reasons supporting the imposition of the aggravated term.

Before the court took Islass plea in this case, counsel stated he explained a Cruz^[1]waiver to Islas. As the court took the plea, Islas waived his right to a jury trial, to confront and subpoena witnesses, to testify on his own behalf, and his right not to be compelled to incriminate himself. Islas acknowledged that he understood that the maximum sentence was six years, but he had agreed to a two-year term in state prison. The court recited the factual basis for the plea and made a finding that Islas made a knowing, voluntary, and intelligent waiver of his constitutional rights. Islas also agreed to waive his right to be sentenced within 20 court days and the court said, The court will permit you to remain out on the same bail bond pending sentencing and also on the condition that you take a waiver under People versus Cruz, which means that if you fail to show up on January 19th, 2007, for sentencing or you commit another crime in the interim, that you will be sentenced to six years in the state prison, and you could have that will happen without the benefit of a hearing or any other due process rights.

Unfortunately, Islas failed to appear at the sentencing hearing. When he was apprehended almost six months later, Islas explained that after he pleaded guilty, he went to Mexico to take money to his family. While in Mexico, he was kidnapped, and the money that was intended for his family, was used to pay his ransom. Islas explained that he was released in Guatemala and it took him quite a bit of time to get back to the United States. According to Islas, he wanted to contact his attorney but didnt have his telephone number and he had only been in the United States three days when he was apprehended and before he had a chance to work everything out.

At the conclusion of the sentencing hearing, Islas was sentenced to six years which was calculated by imposing the upper term for fraudulent representation to obtain compensation in count 1 of the information, and a consecutive one-year term for the same offense alleged in count 4. The remaining counts were stayed pursuant to Penal Code section 654^[2]. Islas contends that despite the trial courts discretion to impose the upper term based on the Cruz waiver, the trial court is still required to provide a statement of reasons supporting the imposition of the aggravated term, and the total lack of reasons supporting imposition of the upper term in this case requires the matter be remanded for resentencing.

As a preliminary matter, respondent contends Islass claim is not cognizable on appeal because he failed to successfully obtain a certificate of probable cause. Pursuant to section 1237.5, [n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] . . . [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

When the issue on appeal challenges the defendants sentence following a guilty plea or plea of nolo contendre, the determining factor in deciding whether the issue arose before entry of the plea such that a certificate of probable cause is required is whether the plea agreement specifies a particular sentence or whether it specifies a sentence range. [A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself and thus requires a certificate of probable cause. [Citation.] (People v. Vargas (2007)

148 Cal.App.4th 644, 651.)

Although Islas contends he is not contesting the validity of his plea, he is in fact challenging the very sentence he negotiated on the basis that the trial court failed to provide a statement of reasons to justify imposing the upper term, which is in substance, an attack on the validity of his plea. (People v. Cuevas (July 10, 2008, S147510) __ Cal.4th ___.) Because a Cruz waiver is considered an integral part of defendants plea agreement [,] [ ] defendants challenge to the agreed-upon sentence is a challenge to the validity of his plea and such a challenge requires a certificate of probable cause. [Citation.] (People v. Vargas, supra,148 Cal.App.4th at p. 652.)

On August 15, 2007, Islas filed a timely notice of appeal from the sentencing hearing conducted on August 7, 2007. According to the clerks transcript, at the time Islas filed his notice of appeal, he also made a request for a certificate of probable cause. A footnote in appellants opening brief filed in January 2008, states, appellant sought the issuance of a Certificate of Probable Cause, but the request was never signed. Apparently through inadvertence, the superior court failed to act on the request within 20 days as required in rule 8.304(b)(2) of the California Rules of Court, which states, [w]ithin 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate.

In June, 2008, appellant sent a letter to the superior court explaining that Islas timely sought the issuance of a certificate of probable cause, but the superior court never acted upon the request. Islas asked the superior court to either grant the request, or at the very least, act on the request one way or the other at the earliest possible date. Two days later, the superior court granted appellants request.

Although People v. Mendez (1999) 19 Cal.4th 1084, holds that a defendant may not obtain review of certificate issues unless he has complied with section 1237.5 and rule 31(d) [renumbered 8.304(b)(2)], first paragraph, fully, and, specifically, in a timely fashion, . . . (Id. at p. 1099) the state, which establishes the time limit for appeals, may not frustrate those within its control from meeting the requirement. (People v. Riser (1956) 47 Cal.2d 594, 595; See People v. Slobodion (1947) 30 Cal.2d 362, 366-367.) As such, we will not penalize Islas for the trial courts failure to comply with rule 8.304(b)(2), and we reach the merits of the appeal.

As a secondary matter, respondent urges the court to affirm the judgment on the basis that Islas waived the sentencing error. The waiver doctrine applies when counsel fails to object when the trial court neglects to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353.) In this case, we find the waiver doctrine does not apply for the simple reason that the trial court sufficiently explained that Islass sentence was based on the fact that he violated a term of his plea agreement.

Based on Islass explanation and the bail bondsmans declaration detailing his efforts to locate and apprehend Islas over a period of time that seemed to be much longer than the three days claimed by Islas, the trial court disbelieved Islass explanation and considered his nonappearance as a willful[ ] violat[ion] [of] the terms of [the] agreement. The court stated, . . . [B]ased on what I have heard and the state of the evidence, and the facts in the declaration filed by the bail bondsman, your version of the events is not credible, I am not persuaded with respect to why you were not here in court, Mr. Islas. It appears to the court that you not only willfully violated the terms of your agreement to show up for sentencing, but you violated the terms of your bail bond by going into Mexico, you didnt even have the right to do that. [] The other items are self-serving and not credible. I dont know what the circumstances were behind the fact that you have been in the United States, even how long you have been in here, but it is clear that you have been in the United States for a while, and didnt contact anyone, and left your attorney hanging throughout the course of the time that this eight-month period went on. You have no idea, and you cant provide the court with any credible explanation of your willful failing to appear for sentencing. [] Which takes me to my waiver with you on November 6th, 2006, when you stood right in front of me with your lawyer. And I explained to you the consequences if you didnt show up for your sentencing. I mean I took a chance on allowing you to remain free on bond, pursuant to your representation that you understood the conditions of your bond, the bond remained in effect, and also that you would be sentenced to the maximum without the benefit of a hearing if you failed to show up. [] So what you have effectively done is you have tripled your sentence, you have gone from a two-year commitment to six, which is what the court feels that you are deserving of.

The court continued to explain, I see nothing at all that is defective about the waiver. You were assisted by an interpreter, you knew what the consequences were if you didnt show up, you willfully failed to show up, so you are going to be sentenced accordingly, which is five years, the upper aggravated term on count 1.

Despite this explanation, Islas contends the trial court failed to provide a statement of reasons supporting the imposition of the aggravated term. However, a violation of a Cruz waiver is the breach of an agreement, and not a fact used to impose a higher sentence.

In People v. Cruz, supra, 44 Cal.3d 1247, (Cruz ), the defendant pleaded guilty pursuant to a plea agreement that gave him the option of a sentence of up to one year in the county jail with a maximum of five years probation or 16 months in prison. When the defendant failed to appear for sentencing, the court refused to abide by the plea agreement, denied the defendants motion to withdraw his plea, and sentenced the defendant to two years in state prison. Cruz holds that a defendant who fails to appear for sentencing does not lose the protection of section 1192.5, which allows a defendant to withdraw his plea if the court intends to sentence the defendant to a punishment more severe than specified in the plea agreement. Cruz also holds that a defendant fully advised of his or her rights under section 1192.5 could expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendants plea and impose a sentence in excess of the bargained-for term. Any 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. (Id., at pg. 1254, fn. 5.) [W]hen the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction. (People v. Casillas (1997) 60 Cal.App.4th 445, 452; People v. Vargas (1990) 223 Cal.App.3d 1107, 1111-1112.)

In this case, Islas had been advised of the higher sentence that would be imposed by the court if he failed to comply with the terms of the agreement and went forward with the plea. The violation of the waiver is used to impose a higher sentence as a result of a voluntary plea agreement, as opposed to a factual finding to determine an involuntary, judge-imposed sentence. As such, a trial court making a Cruz violation determination is not making a finding in aggravation.

Islas is also estopped from complaining of a sentence to which he agreed. Islas concedes the validity of the plea agreement and Cruz waiver. He also acknowledges that he negotiated the plea agreement for a specified term that allowed him to be released on bond and to avoid a harsher sentence. Islas also understood that if he failed to comply with the terms of the agreement, he would be sentenced to six years in prison. With respect to Islass claim that this matter should be returned to the trial court for resentencing because the trial court failed to state its reasons for imposing the upper term, People v. Hester (2000) 22 Cal.4th 290, holds that when a defendant pleads guilty in return for a specified sentence, appellate courts will not find error, even if the trial court acted in excess of jurisdiction, or as Islas claims in this case, failed to state reasons for imposing the agreed upon term.

Hester explains that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] (Id. at p. 295.) As in Hester, Islas received what he negotiated and agreed to under the plea agreement, and he must abide the terms of the agreement. [Citation.] (People v. Cuevas, supra, __ Cal.4th ___.) When Islas failed to return to court for the sentencing hearing as promised, his failure to comply with the terms of the plea agreement, upon which his release was conditioned, automatically triggered the increased sentence from the voluntary plea agreement, thus implement[ing] the reasonable expectations of the parties. (People v. Carr (2006) 143 Cal.App.4th 786, 794. As such, Islas will not be allowed to trifle with the court by returning to the trial court for resentencing with the expectation that he will better his sentence by convincing the trial court that there are no facts in the record to support the upper term in this case. For the foregoing reasons, the judgment is affirmed.

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^* Before Rylaarsdam, Acting P. J., Fybel, J., and Ikola, J.

^[1]People v. Cruz (1988) 44 Cal.3d 1247.

^[2] All further statutory references are to the Penal Code.