Filed 10/5/26 P. v. Oseguera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F090228
Plaintiff and Respondent,
(Super. Ct. No. 24CR-01659)
v.

RAMON OSEGUERA, JR., OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Brian L.
McCabe, Judge.
Matthew S. Lopas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P. J., Harrell, J. and Guerra, J.
 Defendant Ramon Oseguera, Jr., contends on appeal that the sentence must be
vacated and the matter remanded with directions to the trial court to impose the term
specified in the negotiated plea agreement, or alternatively, to extend an opportunity to
defendant to withdraw his plea, because the trial court erred in imposing a sentence
exceeding the term specified in the plea bargain without allowing defendant to withdraw
his plea. Defendant further contends that a certificate of probable cause is unnecessary
for our court to address the issues raised on appeal because the issues arose after entry of
plea and address an error in sentencing, rather than the validity of the plea. The People
agree, as do we, but contend the judgment must be reversed and the matter remanded for
defendant to have the opportunity to withdraw his plea. We reverse the judgment and
remand the matter to the trial court to allow defendant the opportunity to withdraw his
plea.
PROCEDURAL SUMMARY
On April 24, 2024, the Merced County District Attorney filed a complaint
charging defendant with burglary (Pen. Code,1 § 459; count 1). It was further alleged
defendant suffered two prior strikes (§§ 667, subd. (b) –(j), 1170.12, subd. (b)) and three
aggravating factors (Cal. Rules of Court,2 rule 4.421). Defendant pled not guilty and
denied the allegations.
On May 1, 2024, the trial court held a plea hearing. Defendant entered into a
West3 plea. He pled no contest to count 1 (§ 459) and admitted the validity of the prior
strike conviction. In exchange for the plea, defendant was to receive a term of 32 months
(the low term, doubled pursuant to the Three Strikes law). The court struck the factors in

1 All further statutory references are to the Penal Code, unless otherwise noted.
2 All further rules references are to the California Rules of Court.
3 People v. West (1970) 3 Cal.3d 595 (West) [no recitation of fact underlying the
crime due to the nature of the plea and no preliminary hearing].)

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aggravation. After defendant entered his plea, the trial court addressed whether
defendant desired immediate sentencing. Defendant requested a “Cruz waiver.”4 The
terms of the “Cruz Waiver” allowed the court to impose the upper term of three years,
doubled for the prior strike conviction, if defendant failed to return to jail custody by 5:00
p.m. on May 8, 2024, after his release on that same day. The court stated it “can
sentence” defendant to a term of up to six years. The matter was continued until May 9,
2024, for sentencing.
On May 8, 2024, defendant failed to return to custody.
On May 9, 2024, defendant failed to appear at the scheduled sentencing hearing.
The trial court noted his failure to appear and ordered a no bail warrant to issue.
On June 25, 2025, the trial court held a sentencing hearing. Defendant was
brought back to court on the no bail warrant only.5 The court reappointed defense
counsel and the matter was continued.
On July 31, 2025, the trial court held the continued sentencing hearing. Defense
counsel stated he “won’t deny there was a Cruz Waiver,” but disagreed with the
imposition of the upper term absent any aggravating factors being proven or admitted to
by defendant. Defense counsel argued for the trial court to impose the 32-month
sentence contemplated by the plea agreement, or at most, for the midterm, doubled
pursuant to the Three Strikes law, to be imposed because there was no stipulation to
aggravating factors. The prosecution argued for the imposition of the upper term, as
contemplated by the “Cruz Waiver.” The trial court then sentenced defendant to six
years (the upper term, doubled pursuant to the Three Strikes law) as a result of not

4 As discussed below, the parties agree the judicially crafted post-plea agreement
was not a valid Cruz waiver. (See People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5
(Cruz).).
5 There were no allegations that defendant had committed any new violations of law
since his May 8, 2024 failure to appear.

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returning to custody after entering a “Cruz waiver.” Defendant made an oral request to
withdraw his plea. The court denied defendant’s request without explanation but without
prejudice. The trial court did not give defendant a section 1192.5 advisement or allow
him to withdraw his no contest West plea.
On July 31, 2025, defendant timely filed a notice of appeal.
DISCUSSION6

I. Nonappearance Sanction
Defendant contends the trial court erred when it imposed a sentence greater than the
sentence agreed to in the negotiated plea agreement without first giving defendant an
advisement pursuant to section 1192.5 or an opportunity to withdraw his plea.7 The
People agree, as do we.
A. Background
On May 1, 2024, the trial court held a plea hearing. Defendant entered into a West
plea and pled no contest to count 1 and admitted the validity of the prior strike
conviction. In exchange for the plea, defendant was to receive a term of 32 months (the
low term, doubled pursuant to the Three Strikes law). The court struck the factors in
aggravation. After defendant entered his plea, the trial court addressed whether
defendant desired immediate sentencing. After the no contest plea was taken, the trial
court asked if there would be immediate sentencing, and defense counsel requested
defendant be released to attend a medical appointment on May 8, 2024. The trial court
stated it would grant the request and indicated that in this judicially crafted, post-plea

6 As the facts of defendant’s underlying offense are irrelevant to his appeal, we omit
them from our opinion.
7 Defendant also contends he did not forfeit his right to withdraw his plea by failing
to object at sentencing because he never received a section 1192.5 advisement. As we
agree with the parties that the trial court erred by imposing a sentence greater than agreed
upon without first giving defendant a section 1192.5 advisement, we need not address
this issue.

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agreement it could impose a six-year term if defendant did not return to jail custody on
time. Defendant requested a “Cruz Waiver.” The terms of the alleged “Cruz Waiver”
allowed the court to impose six years (the upper term, doubled pursuant to the Three
Strikes law) if defendant failed to return to jail custody by 5:00 p.m. on May 8, 2024,
after his release on May 1, 2024. The matter was continued until May 9, 2024, for
sentencing.
After entering defendant’s plea, the following colloquy occurred:
[THE COURT:] I’m willing to grant request for a Cruz waiver for
the following reasons: The strike prior allegations that are listed in
enhancement one that which was admitted to and the other are both
more than 10 years old. [¶] In addition to that, this offense is a—
itself a nonviolent offense. The circumstances of the offense having
reviewed the bail review report are concerning; however, they do
appear driven by the defendant’s transience and not by a violent
inclination.… Based upon that, we will come back for sentencing on
May 9th at 8:30 a.m. [¶] … [¶]
THE COURT: The matter’s referred to probation for credits and
fines only. The release order will be as follows. Release at 8:00
a.m. on May 8th. [¶] Are you at Sandy Mush?

DEFENDANT: Downtown.

THE COURT: You’re at the main jail?

DEFENDANT: Yes.

THE COURT: All right. From the main jail. So the appointment’s at
10:30?

DEFENDANT: Yes.

THE COURT: In what city?

DEFENDANT: In Madera.

THE COURT: You are to return to the county jail no later than
5:00 p.m. on May 8th.

DEFENDANT: Yes, ma’am.

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 THE COURT: If you fail to go back to jail on May 8th, then a
warrant for your arrest will issue if you’re not in court on the 9th and
this Court can sentence you up to six years at the Department of
Corrections. Right now there’s an agreement for 32 months. If you
go back to jail by 5:00 p.m. on the 8th, I’ll follow that agreement,
but if you fail to do so, six years. You understand that?
DEFENDANT: I understand. [¶] … [¶]

THE COURT: That will be this Court’s order. The minute order
could note the [prosecution’s] objection to the Cruz Waiver and the
fact that the Cruz Waiver has been entered by the defendant
personally and that he understand[s] the consequences of failing to
return to the jail.”
Defendant failed to appear at the May 9, 2024 sentencing hearing. The trial court
noted his failure to appeal and ordered a no bail warrant to issue. On June 25, 2025, the
trial court held a sentencing hearing. Defendant was brought back to court on the no bail
warrant only and the court continued the hearing.
On July 31, 2025, the trial court held the continued sentencing hearing. Defense
counsel stated he “won’t deny there was a Cruz Waiver” but disagreed with the
imposition of the upper term absent any aggravating factors being proven or admitted to
by defendant. Defense counsel argued for the trial court to impose the 32-month
sentence contemplated by the plea agreement, or at most, for the mid-term, doubled
pursuant to the Three Strikes law, to be imposed because there was no stipulation to
aggravating factors. The prosecution argued for the imposition of the upper term, as
contemplated by the “Cruz Waiver.”
The trial court then sentenced defendant to six years (the upper term, doubled
pursuant to the Three Strikes law) because he did not return to custody after entering the
“Cruz Waiver.” Discussing the “Cruz Waiver,” the trial court quoted portions of the
transcript of the plea colloquy and subsequent discussion regarding defendant’s release
from the May 1, 2024 plea hearing and addressed the aggravating factors.8 It stated,

8 Prior to the sentencing hearing, the trial court obtained and reviewed a transcript
from the May 1, 2024 plea hearing.

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 “[T]he Court having taken judicial notice of the file has read the file as
evidence by the reading of the procedural history and delving into the
transcript of the felony that was taken at the felony plea and specifically
honing in on the Cruz waiver, notes that [the judge at the plea hearing]
began by indicating, as the courts always do, what the maximum exposure
is if they fail to comply, and then later in her discussion was definitive in
what she indicated as a means of highlighting what her intent was.

“This Court notes first and foremost it [has] reviewed the Felony
Advisement of Rights Waiver and Plea Form filed May 1st, 2024, and notes
items number 32, the Arbuckle waiver9 was initialed, which allows this
Court to impose the sentence.

“Two, this Court isn’t bound by what the other Court may or may
not have said or done. It can use its own independent judgment in
reviewing the content of the file and in the totality of the circumstances
what it appears to this Court to be appropriate under the circumstances.

“Next, the Court finds that the defendant stipulated to the aggravated
term as a condition of his release on the Cruz Waiver. Although, the
original plea was for the low term; and, therefore, either had in ignoring or
striking the enhancement two, which was the … rule 4.421, factors in
aggravation.

“This Court notes that from the reading of the transcript, it was clear
that that was resurrected only for the Cruz Waiver and only would apply if
the defendant failed to comply with the terms and conditions of the Cruz
Waiver, which was to report back to jail on the 8th [of May 2024] and,
therefore, be in court on the 9th[ of May 2024].

“So although counsel correctly raises that issue as if he had returned
on the Cruz Waiver and was being sentenced, the deal was low term
doubled because the factors [in] aggravation weren’t in place because they
weren’t part of the deal, but the Cruz Waiver reopened that, made that a
possibility. And it’s clear from the record that was specifically done and
specifically addressed by [the trial court judge] with the defendant who voir
dired quite carefully and quite artfully in this Court’s opinion as to what
this means, what the ramifications are if you fail to appear. And it was
apparent to this Court, as well, that he was told what the maximum
exposure was, what it could be, and what [the judge’s] inclination was at
the end, which was the upper term.

9 People v. Arbuckle (1978) 22 Cal.3d 749.

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 “Consequently what the Court’s going to do and believes i[s]
appropriate under the terms and conditions of this is that the failure to
appear, the Cruz Waiver negates the lower term.”
Defendant made an oral request to withdraw his plea. The court denied
defendant’s request without explanation but without prejudice.
The trial court did not give defendant a section 1192.5 advisement or allow him to
withdraw his no contest West plea.
B. Law
Cruz Waiver
People v. Cruz provides a narrow exception where a trial court may withdraw its
approval of the defendant’s plea and impose a sentence in excess of the bargained-for
term, in cases where a defendant willfully fails to appear for sentencing after having been
advised of his rights under section 1192.5 and choosing to expressly waive them. (Cruz,
supra, 44 Cal.3d at p. 1254, fn. 5.)

Section 1192.5 Advisement
Section 1192.5 provides in pertinent part:

“(b) When the plea is accepted by the prosecuting attorney in open court
and is approved by the court, the defendant, except as otherwise provided in
this section, cannot be sentenced on the plea to a punishment more severe
than that specified in the plea and the court may not proceed as to the plea
other than as specified in the plea.

(c) If the court approves of the plea, it shall inform the defendant prior to
the making of the plea that (1) its approval is not binding, (2) it may, at the
time set for the hearing on the application for probation or pronouncement
of judgment, withdraw its approval in light of further consideration of the
matter, and (3) in that case, the defendant shall be permitted to withdraw
the plea if the defendant desires to do so. The court shall also cause an
inquiry to be made of the defendant to satisfy itself that the plea is freely
and voluntarily made, and that there is a factual basis for the plea.”
(§ 1192.5.)
Appellate courts have recognized that, when there is a plea agreement between
parties, and the plea is accepted by the court, that “[d]ue process requires that both the

8.
defendant and the prosecution, abide by the terms of the plea agreement and that the
punishment imposed not significantly exceed that which the parties agreed upon.”
(People v. Silva (2016) 247 Cal.App.4th 578, 587–588 (Silva), overruled on different
grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183; People v. Woods (2017) 12
Cal.App.5th 623, 630 [the accused and the People are entitled to the benefit of the plea
bargain]; see People v. Mancheno (1982) 32 Cal.3d 855, 860 [due process applies not
only to the procedure of accepting the plea, but also to the implementation of the bargain
itself; a violation of the bargain raises a constitutional right to some remedy].)
Further, “[i]t has long been the rule that if the trial court disapproves of the negotiated
disposition and seeks to modify it, the court must expressly tell the defendant he or she
can withdraw the plea if the defendant is unwilling to accept the modified terms.”
(People v. Silva, supra, at p. 587.)

Failure to Appear
“ ‘A defendant who fails … to appear without justification is subject to
punishment upon conviction of the separate offense of a willful failure to appear
[citation] in an action brought at the discretion of the prosecutor, not by peremptory
judicial fiat.’ ” (Cruz, supra, 44 Cal.3d at p. 1253.)
Further, “a defendant who fails to appear for sentencing does not lose the
protections of section 1192.5.” (People v. Masloski (2001) 25 Cal.4th 1212, 1219
(Masloski).) As the California Supreme Court stated in Cruz,

“[S]ection 1192.5 provides that a defendant who pleads guilty pursuant to a
plea bargain which is subsequently disapproved by the trial court shall be
permitted to withdraw the plea if he or she so desires. The issue before us
is whether this provision applies when the trial court withdraws its approval
because the defendant fails to appear for sentencing. We conclude that the
statute applies even to the fleeing defendant, against whom separate
sanctions are available under … sections 1320 and 1320.5.” (Cruz, supra,
44 Cal.3d at p. 1249.)

9.
Section 1192.5 Waiver
A plea agreement may provide for an alternate, increased sentence if the defendant
fails to appear for sentencing. (Cruz, supra, 44 Cal.3d at pp. 1250–1252.) However, to
do so, a waiver of the defendant’s section 1192.5 rights must be obtained at the time of
the court’s initial acceptance of the plea and must have occurred after an advisement
under section 1192.5. (Cruz, at pp. 1250–1252; Masloski, supra, 25 Cal.4th at p. 1214.)
In Cruz, the California Supreme Court explained,

“We do not mean to imply by this holding that a defendant fully
advised of his or her rights under section 1192.5 may not expressly waive
those rights, such that 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.”
(Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
However, if a court should fail to inform a defendant of his right to withdraw his
guilty plea, even the defendant’s acceptance of the trial court’s terms will not be enough
to make them a part of the plea bargain under section 1192.5. (Cruz, supra, 44 Cal.3d at
p. 1251.)
In cases where a defendant has not been fully advised of his rights under section
1192.5 and has not expressly waived those rights, a trial court may still impose a longer
term for failure to appear, so long as it does not “ ‘seek to repudiate the plea bargain or to
impose a sentence more onerous than that which defendant had agreed to accept as part
of the bargain itself.’ ” (Masloski, supra, 25 Cal.4th at p. 1219.)

Standard of Review
“In reviewing a challenge involving a plea bargain, we apply the standards of
review applicable to contracts, generally. [Citation.] ‘ “[T]he ‘interpretation of a
contract is subject to de novo review where the interpretation does not turn on the

10.
credibility of extrinsic evidence.’ ” ’ ” (People v. Woods, supra, 12 Cal.App.5th at p.
631.)
“ ‘The process of plea bargaining which has received statutory and judicial
authorization as an appropriate method of disposing of criminal prosecutions
contemplates an agreement negotiated by the People and the defendant and approved by
the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty in
order to obtain a reciprocal benefit, generally consisting of a less severe punishment than
that which could result if he were convicted of all offenses charged…. Judicial approval
is an essential condition precedent to the effectiveness of the “bargain” worked out by the
defense and the prosecution.’ [Citation.] Because the charging function is entrusted to
the executive, ‘the court has no authority to substitute itself as the representative of the
People in the negotiation process and under the guise of “plea bargaining” to “agree” to a
disposition of the case over prosecutorial objection.’ ” (People v. Clancey (2013) 56
Cal.4th 562, 569–570.)
“It is of course axiomatic that when a plea bargain is made the defendant is
entitled to withdraw his plea if the negotiated bargain is incapable of actual fulfillment.
[Citations.] Under the provisions of the authorizing statute, once the plea specifying the
punishment is accepted by the prosecutor and approved by the court, the defendant
cannot be sentenced on such plea ‘to a punishment more severe than that specified in the
plea and the court may not proceed as to such plea other than as specified in the plea.’
(Pen. Code, § 1192.5.)” (People v. Morris (1979) 97 Cal.App.3d 358, 362.)
The question when distinguishing between bargained-for provisions and judicially
imposed terms “will be not whether the bargain occurred in a hermetically sealed
environment from which the judge was excluded, but whether the return provision
resulted from the give-and-take of plea bargaining or was a judicially imposed
afterthought.” (People v. Casillas (1997) 60 Cal.App.4th 445, 452.) “A trial court must

11.
accept the negotiated plea or reject the bargain outright, but it cannot come up with its
own number” with regard to sentencing. (People v. Stamps (2020) 9 Cal.5th 685, 708.)
C. Analysis
Here, we agree with the parties that the trial court erred in imposing a sentence
greater than the sentence agreed upon in the plea bargain without first advising defendant
of his section 1192.5 rights or affording him the opportunity to withdraw his plea.
At the May 1, 2024 plea hearing, defendant entered into a West plea, pled no
contest to count 1 and admitted the validity of the prior strike conviction, and in exchange
for the plea, was to receive a term of 32 months (the low term, doubled pursuant to the
Three Strikes law). The court struck the factors in aggravation.
After defendant entered his plea, the trial court addressed whether defendant
desired immediate sentencing, and defendant requested a “Cruz Waiver.” The terms of
the “Cruz Waiver” allowed the court to impose the term of six years (the upper term,
doubled pursuant to the Three Strike law) if defendant failed to return to jail custody by
5:00 p.m. on May 8, 2024, after his release on May 1, 2024.
At the sentencing hearing on July 31, 2024, the trial court sentenced defendant to
six years, pursuant to the “Cruz Waiver,” for failing to appear at the May 9, 2024
sentencing hearing.
The trial court did not give defendant a section 1192.5 advisement or allow him to
withdraw his no contest West plea.
Here, whether the proffered plea was acceptable was within the exclusive
discretion of the court. (§ 1192.5; see People v. Orin (1975) 13 Cal.3d 937, 942–943;
People v. Smith (1971) 22 Cal.App.3d 25, 30.) However, the discretion to conditionally
approve the negotiated plea bargain did not sanction the wholly unrelated and
unbargained condition interjected by the court concerning an increased sentence of six
years (the upper term, doubled) for defendant’s failure to appear at sentencing, as the
increased sentence was imposed after the plea was accepted as a precondition to the

12.
court’s acceptance of the “Cruz Waiver,” without input from the prosecution, who
objected to the waiver. The provision was therefore not a part of the plea agreement, not
a valid Cruz waiver, and not enforceable.
In Masloski, supra, 25 Cal.4th 1212, the California Supreme Court reiterated that
the Cruz waiver must be obtained at the time of the court’s initial acceptance of the plea
and must have occurred after an advisement under section 1192.5. (Id. at pp. 1217–
1219.) As the Masloski court stated, there is a distinction “ ‘between (1) a plea
agreement that provides alternate sentences depending upon whether the defendant does
or does not appear for sentencing as ordered, and (2) a sanction for nonappearance that is
unilaterally imposed by the trial court.” (Masloski, supra, 25 Cal.4th at p. 1220.) The
Masloski court explained,

“ ‘First, when a defendant fails to appear at sentencing after entering a
bargained plea with no discussion about a specific sanction for
nonappearance, he or she is entitled to withdraw the plea if the court refuses
to honor the plea bargain. Second, the same rule applies when, during the
plea proceedings but after the parties have negotiated the basic plea
bargain, the court imposes an additional condition providing a sanction for
nonappearance. Third, when 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.” (Masloski, supra, 25 Cal.4th at pp. 1221–1222.)
Here, the nonappearance sanction of a six-year term (the upper term, doubled)
imposed by the trial court was not a part of the plea bargain. Defendant’s situation falls
within the second category of cases outlined in Masloski, where “ ‘during the plea
proceedings, but after the parties have negotiated the basic plea bargain, the court
imposes an additional condition providing a sanction for nonappearance.” (Masloski,
supra, 25 Cal.4th at p. 1222.) As stated above, after the no contest plea was taken here,
the trial court asked if there would be immediate sentencing, and defense counsel
requested defendant be released to attend a medical appointment on May 8, 2024. The
trial court stated it would grant defendant’s request but that, if defendant failed to return

13.
to jail custody on time, the judicially crafted, post plea agreement allowed the court to
impose six years. It then asked defendant if he understood the “Cruz Waiver” on those
terms and defendant said he understood.
However, the waiver was not a valid “Cruz Waiver,” because the sanction of the
six-year term insisted upon by the court for defendant not returning to custody and
nonappearance at sentencing was not a term or condition of the plea bargain agreed to by
defendant and the prosecution. The trial court here did not withdraw its approval of the
plea as required for a valid Cruz waiver. Rather, it instead sought to impose the higher
sentence under the terms of the supposed “Cruz waiver.” Nothing in the terms of the plea
bargain indicated that the parties agreed defendant would be subject to increased
punishment if he failed to return to jail custody or appear at his sentencing. Defendant’s
no contest plea was taken and accepted by the trial court before the issue of a sanction for
nonappearance at sentencing was raised. The nonappearance sanction was then raised by
the trial court immediately after accepting defendant’s plea.
Accordingly, the six-year term as a sanction for nonappearance insisted upon by
the trial court was a clear and material breach of the plea agreement because it was not a
negotiated term or condition of the parties’ plea agreement.
Further, the trial court failed to provide the required section 1192.5 advisement
and did not give defendant an opportunity to withdraw his plea when the court decided to
impose a six-year rather than 32-month term. Pursuant to section 1192.5 and due
process, the trial court was required to advise defendant of his right to withdraw his plea
and give him the opportunity to execute that right. Section 1192.5, subdivision (b)
provides that a defendant cannot be sentenced on an accepted plea to a punishment more
severe than that specified in the plea. Section 1192.5, subdivision (c) provides that if “the
court approves of the plea, it shall inform the defendant prior to the making of the plea
that (1) its approval is not binding, (2) it may, at the time set for the hearing on the
application for probation or pronouncement of judgment, withdraw its approval in the

14.
light of further consideration on the matter, and (3) in that case, the defendant shall be
permitted to withdraw the plea if the defendant desires to do so.” (§ 1192.5, subd. (c).)
As discussed above, “the trial court may not ‘unilaterally modify[] the terms of the
bargain without affording … an opportunity to the aggrieved party to rescind the plea
agreement and resume proceedings where they left off.’ ” (People v. Silva, supra, 247
Cal.App.4th at p. 587.) “The required explanation and defendant’s right to have his plea
withdrawn apply both at the time of entering the plea and at sentencing.” (People v.
Jackson (1980) 103 Cal.App.3d 635, 638.) Accordingly, even if the court’s imposition of
the upper term functioned as a withdrawal of its approval, the court erred in imposing a
sentence exceeding the terms of the plea agreement because defendant had not waived his
section 1192.5 rights. Accordingly, there was a prejudicial violation of section 1192.5
and defendant’s due process right to the implementation of the plea bargain negotiated
and agreed to by the defendant and the prosecution.
Defendant’s case is similar to People v. Morris. There, the defendant accepted a
plea bargain that guaranteed a dismissal of some charges along with a promise that the
court would not sentence him to prison, but after the defendant entered a plea, the court
crafted its own agreement with the defendant by stating that it would sentence him to
prison if he failed to appear for sentencing as ordered. (People v. Morris, supra, 97
Cal.App.3d at pp. 360–361.) Like defendant here, the defendant in Morris agreed to the
court’s condition but failed to appear at sentencing. (Id. at pp. 361–362.) At sentencing,
the trial court in Morris sentenced the defendant to state prison and did not advise the
defendant that he would be allowed to withdraw his plea pursuant to section 1192.5
should it later determine that it would not approve of the plea bargain. (Id. at pp. 361–
362.) The reviewing court found that there was no section 1192.5 advisement and that
the separate agreement with the trial court to impose an increased sentence if the
defendant failed to appear at sentencing was not part of the plea bargain. (Id. at pp. 362–
365.) The Morris court stated that the trial court’s acceptance of the plea agreement “did

15.
not sanction the wholly unrelated and unbargained condition interjected by the court,”
and reversed the judgment. (Id. at p. 363.)
Likewise, in People v. Murray (1995) 32 Cal.App.4th 1539, the appellate court
reversed the judgment where the defendant accepted a plea agreement that set his
maximum prison term at four years, but after the entry of plea, the trial court indicated
that it would grant the defendant’s request to voluntarily surrender two weeks on
condition that the court could exceed the four-year maximum prison term if the defendant
failed to appear at sentencing, and when the defendant failed to appear he was sentenced
to six years and four months. (Id. at pp. 1540–1546.) The Murray court found the trial
court erred in sentencing because “ ‘the plea bargain itself did not contemplate a sentence
higher than the four-year middle term’ … [and] [t]he sanction for non appearance was
imposed by the court’s ‘separate and apart from the plea agreement.’ ” (Masloski, supra,
25 Cal.4th at p. 1545.)
Here, as in Murray and Morris, the nonappearance sanction was not a part of the
plea agreement. Rather, the nonappearance sanction was contained in a judicially crafted
post-plea agreement with the court. Further, and the trial court failed to give defendant a
section 1192.5 advisement, and upon a rejection of that plea bargain by the trial court, the
trial court denied defendant’s oral request to withdraw his plea. Accordingly, we vacate
the six-year sentence imposed by the trial court and remand the case with directions to
the trial court to allow defendant the opportunity to withdraw his no contest plea.

II. Certificate of Probable Cause
Defendant further contends that a certificate of probable cause is unnecessary for
our court to address the issues raised on appeal because the issues arose after entry of
plea and address error in sentencing, rather than the validity of the plea. The People
agree, as do we.

16.
 Typically, a defendant may not appeal from a judgment of conviction upon a plea
of guilty or nolo contendere without first obtaining a certificate of probable cause.
(§ 1237.5.) Where a defendant raises a claim that a negotiated sentence is
unconstitutional or that the trial court lacked authority to impose the negotiated sentence,
the challenge is, in substance, an attack on the validity of the plea, requiring a certificate
of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 769–771; People v.
Panizzon (1996) 13 Cal.4th 68, 79.)
However, “[e]xempt from this certificate requirement are postplea claims,
including sentencing issues, that do not challenge the validity of the plea.” (People v.
Cuevas (2008) 44 Cal.4th 374, 379.) “A certificate of probable cause is not required if
the issue on appeal arose after the entry of the plea and does not affect the validity of the
plea.” (People v. Vargas (2007) 148 Cal.App.4th 644, 651.)
Here, as the parties agree, defendant is challenging the nonappearance sanction,
which was imposed by the court after its acceptance of the plea and was not a part of the
plea agreement. Accordingly, defendant does not need a certificate of probable cause to
challenge its imposition. We reverse the judgment and remand the matter to allow
defendant the opportunity to withdraw his plea.10
DISPOSITION
The judgment is reversed and the matter remanded to allow defendant the
opportunity to withdraw his plea.

10 “ ‘[A] defendant should not be entitled to enforce an agreement between himself
and the prosecutor calling for a particular disposition against the trial court absent very
special circumstances. The preferred remedy in that context is to permit a defendant to
withdraw his plea and to restore the proceedings to the original status quo.’ ” (People v.
Calloway (1981) 29 Cal.3d 666, 671.)

17.