P. v Goodman
Filed 2/24/12 P. v Goodman CA1/2
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL A.
GOODMAN,
Defendant and Appellant.
A131674
(Solano
County
Super. Ct.
Nos. VCR 208837 & 196547
Defendant
Daniel A. Goodman appeals from the judgment and sentence imposed following his
entry of a no-contest plea on charges of false personation and receiving stolen
property. Defendant’s appellate counsel
has filed a brief pursuant to
436, and requests that we conduct an independent
review of the record. Defendant was
informed of his right to file a supplemental brief and did not file such a
brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) We have conducted the review requested by
appellate counsel and, finding no arguable issues, affirm the judgment.
Factual and Procedural Background
In
March 2010, the
County District Attorney (DA) filed a felony information in case number
VCR196547, alleging that in March 2008 defendant committed
of Penal Code, section 529,
name="_ftnref1" title="">[1]
and possessed methamphetamine (count 2), in violation Health and Safety Code,
section 11377.
According
to the probation report, the false personation charge arose from an incident on
March 6, 2008, when Vallejo
police officers responded to reports of a disturbance. Officers contacted defendant and asked if his
name was “Danny.” Defendant replied it
was not, and then gave different names, birth dates and social security numbers
that could not be verified by dispatch.
After officers found identification for a person named E.K. in
defendant’s pocket, defendant told officers he was E.K. Defendant was taken into custody for
providing false information. Police ran
a photo-check on E.K. at the station, but the photograph that came back did not
match defendant. When E.K. arrived at
the station, he told police that he allowed defendant to stay in his house for
several days but never gave defendant permission to possess or use his
identification.
In
September 2010, the DA filed a single-count, felony complaint in case number
VCR208837, alleging that sometime between August 27 and August 31, 2010, defendant received a stolen Ford
Bronco motor vehicle, in violation of section 496d, subdivision (a). Also, the complaint alleged that defendant
committed the offense charged while released from custody on bail in case
number VCR196547, within the meaning of section 12022.1. Further, the complaint alleged defendant
failed to remain free of prison custody for five years following a prior prison
term, within the meaning of section 667.5.
According
to the probation report, this charge arose after defendant attempted to sell
J.R. a used transmission from a Ford Bronco.
On August 31, 2010, defendant dropped the transmission off in the
driveway of J.R.’s house, and was supposed to return to sign a contract for the
sale prepared by J.R. A couple of days
later, two men, M.D. and L.S., contacted J.R. and told him they were awaiting
payment for removing the transmission from the Bronco. They told J.R. where the Bronco was parked
and gave him the VIN number. J.R. called
the police. Police confirmed the Bronco
had been reported stolen and subsequently recovered the vehicle. J.R. positively identified defendant as the
person who attempted to sell him the Bronco transmission. M.D. and L.S. positively identified defendant
as the person they saw towing a Bronco with his tow truck who offered them $100
each to remove the transmission.
On
October 25, 2010, defendant appeared with counsel at the preliminary
examination scheduled for case number VCR208837. Counsel for defendant announced defendant
wished to enter a plea in both pending matters by admitting to false
personation (count 1) in VCR196547, receiving stolen property as alleged in
VCR208837, as well as the allegation he committed the latter offense while free
on bail. In return, defendant would receive a suspended sentence of five years
and eight months in state prison with immediate release on felony probation for
a period of three years. Defendant
acknowledged he read the waiver of rights and plea forms he had signed, and
that he understood all the rights and consequences set forth therein. Defendant pleaded no contest to falsely
personating E.K., in violation of section 529, no contest to receiving stolen
property, in violation of 496d, subdivision (a), and no contest to the
allegation he committed the latter offense while free on bail. Defense counsel stipulated there was a
factual basis for the plea in the record.
The DA dismissed remaining counts and allegations in both matters with a
Harvey waiver.
defendant knowingly and intelligently waived his constitutional rights,
accepted the plea, and found him guilty of the charges. Defendant was released on his own
recognizance pending sentencing, and a sentencing
hearing was set for December 7, 2010.
The
record shows that defendant failed to appear for sentencing on December 7
and that in his absence the trial court issued a
on the bench warrant and was remanded into custody. On January 19, 2011, defendant appeared
for sentencing and the matter was continued upon his request to file a motion
to withdraw his plea.
Defendant appeared with counsel at the
continued sentencing hearing on February 15, 2011. Counsel for defendant informed the court
defendant no longer wished to withdraw his plea and “would like to avail himself
of the indicated sentence that the court gave him.” In case number VCR196547 (false personation in
violation of section 529), the court denied probation and sentenced defendant
to the low term of 16 months in state prison.
In case number 208837 (receiving stolen property in violation of section
496d), the trial court imposed the low term of 16 months, to be served
concurrently with the sentence imposed in VCR196547. An abstract of judgment reflecting the prison
sentences imposed in the court’s oral pronouncement of judgment was filed on February 23,
2011. Defendant filed a timely notice of
appeal on April 4, 2011. Following
a hearing regarding custody credits, an amended
abstract of judgment was entered on May 24, 2011.
Discussion
One
possible issue is whether defendant’s state prison sentence violated his plea
agreement, which provided for a probationary sentence. Under section 1192.5, where a trial court has
approved a plea agreement, the defendant cannot be sentenced “to a punishment
more severe than that specified in the plea” and the court may not proceed as to the plea other than
that specified in the plea.” (§ 1192.5.)
If the trial court withdraws its approval of a plea, the defendant must
be permitted to withdraw the plea. (Ibid.) Where, as here, a defendant does not appear for
sentencing, the defendant does not lose his or her rights under section
1192.5. (People v. Cruz (1988) 44 Cal.3d 1247, 1251-1254 (
Rather, a defendant’s failure to appear is a separate criminal offense
under section 1320 (own recognizance release) and not a “breach” of the plea
agreement. (See Cruz, supra, 44 Cal.3d at p. 1253.)
Nevertheless,
a defendant can expressly waive his or her rights under section 1192.5,
commonly called a “Cruz waiver,” as
part of a plea bargain. (See
5; see also People v. Vargas (2007) 148 Cal.App.4th 644, 646.) A Cruz
waiver allows the trial court to withdraw its approval of a plea if a defendant
willfully fails to appear for sentencing without allowing the defendant an opportunity
to withdraw a guilty plea, provided that the defendant agreed to waive the
protections of section 1192.5 when the trial court initially accepted the
plea. (People v. Masloski (2001) 25 Cal.4th 1212, 1219.)
Here,
defendant’s signed waiver of rights, which the court accepted at the
change-of-plea hearing, and which defendant acknowledged he had read and
understood, contains a Cruz waiver
stating, in bold type, “I understand the above promises are not binding if I
fail to appear at any subsequent hearing, commit any crime prior to my judgment
and sentencing, violate any terms of my release, or if placed on probation,
violate any probation term.” In all
events, even the absence of a Cruz
waiver in this case would be immaterial, because the record shows that at the
sentencing hearing defendant told the court he did not wish to withdraw his
plea and would rather “avail himself of the indicated sentence that the court
gave him.” Thus, the court’s imposition
of the low term of sixteen months imprisonment on each count, to be served
concurrently, did not violate defendant’s plea agreement.
Also,
in the request for certificate of
probable cause dated March 29, 2011 (attached to the notice of appeal
filed April 4, 2011), defendant states that his guilty plea “was
conditioned upon a grant of custody credits amounting to time served, for both
cases, and was so stated on the record I would be released. . . . [¶] However, I remain in custody some 45
days later, with a release date of September 3, 2011. Therefore I am appealing the sentence, the
credits as reported on the Abstract of Judgment (at least one case must have
“0” days pretrial custody credits), and consider the error to be a breach of my
plea agreement, making my plea agreement void, under the 5th and 14th
Amendments to U.S. Constitution.” It is
unclear what issue defendant attempts to raise in his request for certificate
of probable cause. To the extent it is
an issue challenging the validity of the plea, such issue is not cognizable on
appeal because the trial court did not grant the request for certificate of
probable cause. (See
381 [certificate of probable cause required for any issue which “in substance
[is] a challenge to the validity of [the] plea”].) To the extent defendant challenges the
custody credits, the record demonstrates that after defendant filed his notice
of appeal on April 4, 2011, the trial court held a hearing on custody
credits and filed an amended abstract of judgment on May 24, 2011. In all events, the issue of custody credits
is now moot, because total credits in the amended abstract of judgment (488
days) equal the sentence imposed of sixteen months, meaning defendant has
already been released.
Having
conducted an independent review of the record, we find no arguable issues. Thus, having ensured defendant has received
adequate and effective appellate review, we affirm the trial court's judgment. (People
v. Kelly, supra, 40 Cal.4th at pp. 112–113; People v. Wende, supra, 25 Cal.3d 436.)
Disposition
The
judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
name="_ftn1" title="">[1] Further statutory references are to
the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] People
v. Harvey (1979) 25 Cal.3d 754.
