Filed 9/16/26 P. v. Pavelko CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B348616
(Super. Ct. No. 2025012658)
Plaintiff and Respondent, (Ventura County)
v.
BRIAN NICHOLAS
PAVELKO,
Defendant and Appellant.
Brian Nicholas Pavelko appeals a judgment following his
guilty plea to making criminal threats, a felony. (Pen. Code,1
§ 422, subd. (a).) Pursuant to a plea bargain, the trial court
would reduce the offense to a misdemeanor at sentencing. The
court released Pavelko pending sentencing pursuant to a “Cruz
waiver” (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz)) with a
promise that he would appear for sentencing. Pavelko
subsequently did not appear for sentencing. The court found he
1
Undesignated statutory references are to the Penal Code.
violated his Cruz waiver and placed him on probation for his
felony conviction.
We conclude the trial court erred because it did not find
that Pavelko willfully violated his Cruz waiver. The People “had
the burden to prove by admissible evidence that appellant
willfully failed to appear for sentencing” (People v. Jones (2026)
119 Cal.App.5th 261, 265 (Jones)) and did not meet that burden.
We reverse and remand.
FACTUAL AND PROCEDURAL HISTORY2
On May 12, 2025, Pavelko entered Joe’s Quick Shop and
“created a disturbance.” The manager, Michael L., made a report
to the police. Nine days later, Pavelko returned, opened the door
to the shop and told Michael L., “[Y]ou wanna call the cops? Call
the cops. I’m gonna kill you and I’m gonna kill them.” The
People filed a felony complaint alleging that Pavelko committed
the crime of criminal threats. (§ 422, subd. (a).)
Pavelko entered into a negotiated plea agreement where he
agreed to plead guilty. Part of the plea agreement specified that
Pavelko’s conviction would be reduced to a misdemeanor at
sentencing and he would be placed on probation with credit for
time served. At the change of plea hearing, the court accepted
Pavelko’s plea, stating, “I’m going to let you out of custody
pending that sentencing date if you’re willing to enter into a Cruz
waiver with me.” The court explained that a Cruz waiver
required Pavelko to “report to probation as ordered, stay out of
trouble,” and “come back here” for sentencing. “If you do those
three, then I’m obligated to give you the sentence that your
lawyer has negotiated for which is a reduction to a misdemeanor
2 Because Pavelko pleaded guilty, the factual history is
based on the probation report.
2
and credit for time served.” “[I]f you break one of those three
promises . . . all bets are off with respect to what the sentence
might be. . . . [T]hen your misdemeanor’s gone, and I can
sentence you up to the maximum, which is three years in prison.”
Pavelko agreed to the “Cruz waiver” and checked a box in
his signed plea form stating, “I understand that if, after my plea
and before sentencing, I commit another crime, violate any
condition of my release, or willfully fail to appear for my
probation interview or my sentencing hearing, the negotiated
sentence portion of this agreement will be canceled. I will be
sentenced unconditionally up to the maximum sentence allowed
under the law, and I will not be allowed to withdraw my guilty
plea(s).” Pavelko was released from custody on June 30 and
ordered to return for sentencing on August 4, 2025.
Pavelko reported to probation on July 15 but did not appear
at the August 4 sentencing hearing. The trial court issued a
bench warrant. The next day, defense counsel told the court
Pavelko was in custody “but authorized [him] to appear 977[3] on
his behalf.” The sentencing hearing was continued to August 7.
At the August 7 sentencing hearing, with Pavelko present
and in custody, counsel stated he “would like to make a
record . . . .” He said, “I believe that [Pavelko’s] failure to appear
was not willful. He did get on the wrong bus. It went the wrong
way. By the time he got here, court was over and the warrant
had been issued.” The prosecutor said, “There’s a Cruz waiver
violation in this case . . . . “He failed to appear at sentencing on
August 4th. There’s a willful failure to appear because he’s
responsible for getting here. And so the People ask that the
3 See section 977, subdivision (b).
3
Court sentence the defendant to two years formal probation with
credit for time served.”
The trial court did not make a finding on whether Pavelko’s
failure to appear on August 4 was willful. It stated, “[w]ithout
the reduction from the People, this matter is going to stay a
felony.” It placed Pavelko on two years felony probation with
credit for time served.
DISCUSSION
Cruz waiver
Pavelko contends the trial court erred by finding he
violated his Cruz waiver agreement because there was no
evidence that his failure to appear was willful. We agree.
“In People v. Cruz, supra, 44 Cal.3d at page 1249, our
Supreme Court held a defendant who pleads guilty pursuant to a
plea bargain that is subsequently disapproved by the trial court
for defendant’s failure to appear is entitled to withdraw his or her
plea. But ‘if the defendant willfully fails to appear for sentencing
the trial court may withdraw its approval of the defendant’s 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.’ ” (Jones, supra, 119 Cal.App.5th at p.
264.)
Here, the trial court did not advise Pavelko of his right to
withdraw his plea if the court imposed a more severe sentence.
(See § 1192.5, subd. (c).) Nor did the court advise Pavelko that
his conviction would not be reduced to a misdemeanor if he
“willfully” failed to appear for sentencing. But Pavelko’s written
plea form states that he “will not be allowed to withdraw [his]
4
guilty plea” and that his negotiated disposition would be
“cancelled” if he willfully failed to appear at sentencing.
To deprive him of the benefit of his plea bargain, the trial
court must find that Pavelko willfully failed to appear at his
August 4 sentencing hearing. A defendant acts “willfully” if he
knows what he is doing and intends to do it. (§ 7, subd. (b)(1);
People v. Atkins (2001) 25 Cal.4th 76, 85–86.) “[T]he term
‘willful’ requires only that the prohibited act occur intentionally.”
(In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.)
We recently held in Jones that it is the People’s burden to
prove a defendant willfully failed to appear for sentencing after
being released pursuant to a Cruz waiver. (Jones, supra, 119
Cal.App.5th at p. 265.) Thus, we concluded that this burden
requires the People to present “admissible evidence.” (Ibid.)
Here, the People concede they “did not present sufficient evidence
to show appellant willfully failed to appear for sentencing.” In
fact, they presented no evidence. The People relied on the
prosecutor’s conclusion that “There’s a willful failure to appear
because [Pavelko’s] responsible for getting here.”
From our review of the record, it does not appear that the
trial court found, explicitly or implicitly, that Pavelko’s failure to
appear was willful. We presume that a trial court understands
and properly carries out its duties. (Evid. Code, § 664; People v.
Stowell (2003) 31 Cal.4th 1107, 1114.) But the trial court’s
statements here suggest that it did not consider whether
Pavelko’s failure to appear was willful. The court did not
properly advise Pavelko that he could withdraw his plea
(§ 1192.5, subd. (c)), did not advise him that his conviction would
not be reduced to a misdemeanor if he “willfully” failed to appear
at sentencing, and stated the conviction would “stay a felony”
5
“without reduction from the People.” On this record, we must
conclude that the trial court imposed the greater term of a felony
conviction exclusively on the fact of Pavelko’s failure to appear on
August 4, 2025, without determining whether the failure to
appear was willful.
The People suggest that Pavelko should have made a
showing that he did not willfully fail to appear for sentencing.
But the sentencing hearing preceded the guidance in Jones,
supra, 119 Cal.App.5th 261. And Pavelko’s counsel made an offer
of proof to support that claim by representing to the trial court
that he mistakenly got on the wrong bus and arrived too late for
the sentencing hearing on August 4. The prosecutor did not
object to the offer of proof, present evidence to challenge it, or
claim that counsel’s statements were not credible. The
prosecutor’s position was that Pavelko did not appear and
therefore he necessarily willfully violated his Cruz waiver. That
position is a conclusory accusation that cannot prove a willful
failure to appear. We vacate the sentence and remand to the
trial court to determine whether Pavelko’s failure to appear on
August 4, 2025, was willful.
DISPOSTION
The judgment is reversed. The matter is remanded to the
superior court so that it can give the parties the opportunity to
present evidence and to make a finding of whether Pavelko’s
6
failure to appear at his August 4, 2025, sentencing was willful.
(Jones, supra, 119 Cal.App.5th at p. 266.)
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
CODY, P. J.
YEGAN, J.
7
Ferdinand Inumerable and David M. Hirsch, Judges
Superior Court County of Ventura
______________________________
Christina Vanarelli, Inc. and Christina Vanarelli, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.