Filed 10/21/14 P. v. Patton CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Lassen)
                                                            ----



THE PEOPLE,                                                                                  C075013

                   Plaintiff and Respondent,                                     (Super. Ct. No. CR030785)

         v.

FRANK TIM PATTON, JR.,

                   Defendant and Appellant.




         Defendant Frank Tim Patton, Jr., pleaded guilty to transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for a stipulated
county jail term of two years (Pen. Code, § 1170, subd. (h); undesignated statutory
references are to the Penal Code) and dismissal of two related counts and an on-bail
enhancement (§ 12022.1). On the written plea form, defendant expressed his
understanding “that the court [was] allowing [him] to surrender at a later date to begin
serving time in custody” and expressed his agreement “that if [he failed] to appear on the
date set for surrender without a legal excuse, [his] plea [would] become an ‘open plea’ to
the court, [he would] not be allowed to withdraw [his] plea, and [he might] be sentenced

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up to the maximum allowed by law.” In lieu of taking an Arbuckle waiver (People v.
Arbuckle (1978) 22 Cal.3d 749 (Arbuckle)) and setting a sentencing date, the trial court
immediately sentenced defendant to the stipulated two-year jail term and did not remand
him into custody.
         After defendant failed to turn himself in as required, the trial court resentenced
him to three years in local custody. Defendant did not obtain a certificate of probable
cause.
         On appeal, defendant contends there was no Cruz waiver (People v. Cruz (1988)
44 Cal.3d 1247 (Cruz)) and the trial court had no jurisdiction to sentence him the second
time. He claims the three-year sentence is statutorily unlawful and a violation of federal
due process.
         We have no occasion to decide whether the first sentencing erected a statutory or
due process bar to the second sentencing. The written plea form says that defendant can
be sentenced to a maximum term if he fails to surrender, and his claim that he cannot be
so sentenced attacks what the plea form says. Because defendant did not obtain a
certificate of probable cause, his appeal must be dismissed.
                                           FACTS1
         On May 1, 2013, at 10:22 p.m., officers stopped defendant’s truck and determined
that he was under the influence of methamphetamine and his driver’s license was
suspended. Police subsequently found methamphetamine in the truck and at defendant’s
house, where an electronic scale was also found. Defendant admitted that he was selling
methamphetamine.




1 Because the matter was resolved by plea and defendant waived referral to the probation
department, our statement of facts is taken from the prosecutor’s written statement of the
case.

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                                        DISCUSSION
Defendant’s contention requires a certificate of probable cause.
       Defendant contends there was no Cruz waiver and the trial court lacked
jurisdiction to sentence him the second time. He claims the three-year term is statutorily
unlawful and a violation of federal due process.
       The People respond that defendant’s challenge to the second sentencing is in
substance a challenge to the plea insofar as the plea allowed resentencing following the
failure to surrender. The attack on the plea makes the appeal subject to section 1237.5,
which requires a certificate of probable cause. We agree with the People.
       Background
       Defendant entered into a written plea agreement in which he pleaded guilty to
transportation of methamphetamine in exchange for a two-year county jail term and
dismissal of all remaining counts and enhancements. The plea agreement provided that
defendant faced a maximum time of imprisonment of four years. The plea agreement
also provided, in relevant part:
       “10. AFTER THE PLEA
       “[Defendant’s initials]. a. Surrender: I understand that the court is allowing me
to surrender at a later date to begin serving time in custody.
       “[Defendant’s initials.] If the box to the left is initialed, I agree that if I fail to
appear on the date set for surrender without a legal excuse, my plea will become an ‘open
plea’ to the court, I will not be allowed to withdraw my plea, and I may be sentenced up
to the maximum allowed by law.”
       Before defendant entered his plea, the trial court inquired whether there was an
Arbuckle waiver and the prosecutor stated that “[t]here should be.” In response,
defendant’s counsel said “there could be an Arbuckle waiver or in the alternative . . . if
the Court wanted to sentence today, [defendant] is prepared to enter into a Cruz waiver
which if the Court would be willing to let him turn himself in next Thursday at 7:00 p.m.,

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I explained to him in the event he fails to turn himself in or in the event he picks up a new
case in the interim, his plea would no longer be an [sic] low term stipulation, it would
turn into an open plea allowing the Court to have full discretion as to it’s [sic] sentence in
this case, either two, three or four years [sic] term in the felony matter[2] and [defendant]
indicates he understands that and he’s prepared to enter into that Cruz waiver, and he did
so on the plea form, Your Honor.” (Italics added.)
       Defendant entered his guilty plea and the trial court sentenced him to the low term
of two years.
       The trial court then informed defendant that he was required to turn himself in by
September 5, 2013. If he failed to do so, he “could be subject to the full term in both of
these cases to run consecutive with one another.” Defendant assured the court that he
understood.
       On September 9, 2013, the Lassen County Sheriff’s Office filed a request for an
arrest warrant based on defendant’s failure to surrender to jail on September 5, 2013.
       On October 1, 2013, defendant appeared in the trial court. Defense counsel
objected that, in lieu of imposing sentence at the time of the plea, the court should have
postponed sentencing until the turn-in date. Counsel asked the court to follow the
sentence that already was imposed.
       The prosecutor responded that “the Cruz waiver is in essence a contractual
agreement between the defendant and the Court and the People whereby he agrees to turn
himself in, we agree to honor it and if he breaches that, then obviously there’s an issue
there and so it’s plain that that’s what the defendant did.”




2 In a separate case, No. CR030442, defendant agreed to plead guilty to a misdemeanor
violation of section 243, subdivision (d), and serve one year of incarceration concurrently
with the sentence imposed in this case.

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       The trial court acknowledged that it “imposed the sentence and then took the Cruz
waiver later.” The court explained that the Cruz waiver “was based on the contract
between the Court and the People and the defendant that it was the defendant who didn’t
want to be remanded that day and wanted to turn himself in at a later date for whatever
reason . . . and the reason why the court agreed to it was because the defendant entered
into the Cruz waiver that he could serve up to five years should he not turn himself in and
that the defendant chose to take that path. So now, to come back to the Court and say
well, you can’t do anything else is just not true, the Court can and the Court intends to.”
The court sentenced defendant to prison for three years pursuant to section 1170,
subdivision (h).
       Analysis
       “[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.” (Cruz, supra, 44 Cal.3d at p. 1249, italics
added.) Cruz held that “the statute applies even to the fleeing defendant, against whom
separate sanctions are available under Penal Code sections 1320 and 1320.5.” (Cruz, at
p. 1249.) Cruz “noted in a footnote . . . that a defendant could expressly waive his or her
rights under section 1192.5 at the time the plea was entered. [Citation.]” (People v.
Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2 (Masloski).) Strictly speaking, this “Cruz
waiver” is a section 1192.5 waiver because the defendant intentionally relinquishes his or
her right to withdraw a plea where the plea bargain has been disapproved.
       But the phrase “Cruz waiver” is not always used in this strict sense. In Masloski,
“the trial court carefully described the terms of the agreement, which included what the
court referred to as a ‘Cruz waiver.’ The court later explained that a ‘Cruz waiver’
signified that defendant could receive an increased sentence of up to six years in prison in
the event she failed to appear for sentencing.” (Masloski, supra, 25 Cal.4th at p. 1222.)
The “terms of the plea agreement [included] the provision for an increased sentence in

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the event [the] defendant failed to appear.” (Id. at p. 1223.) “The trial court listed the
‘Cruz waiver’ as one of the terms of the plea agreement, and [the] defendant clearly
understood that part of the agreement was that her sentence could be increased in the
event she failed to appear for sentencing.” (Ibid.) When the defendant failed to appear
on the date set for sentencing, “the superior court did not disapprove the plea agreement.”
(Ibid.) Rather, it sentenced the defendant “to a term of four years in prison, in
accordance with the terms of the plea agreement. The provisions of section 1192.5 that
permit a defendant to withdraw his or her plea if the court withdraws its approval of the
plea agreement were not implicated, because the court adhered to the terms of the plea
agreement by sentencing [the] defendant to a prison term that did not exceed (and in fact
was less than) the maximum sentence authorized by the plea agreement in the event that
[the] defendant failed to appear on the date set for sentencing.” (Masloski, at pp. 1223-
1224, italics added.)
       Masloski is similar to the present case. The parties used the phrase “Cruz waiver”
to refer to part 10 of the plea agreement set forth above. This is seen clearly in defense
counsel’s remark that defendant was “prepared to enter into that Cruz waiver, and he did
so on the plea form, Your Honor.” (Italics added.)
       When defendant failed to surrender on September 5, 2013, the trial court “adhered
to the terms of the plea agreement” by sentencing defendant to a three-year term that was
less than the four-year maximum. Section 1192.5 was “not implicated.” (Masloski,
supra, 25 Cal.4th at p. 1224.) Whether the first sentencing terminated defendant’s right
to withdraw his plea following court rejection of the plea agreement is academic, because
the court never rejected the agreement.
       The remaining question is whether defendant can challenge part 10 of the plea
agreement, which was the sole basis for the three-year sentence, without a certificate of
probable cause. The answer is no.



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       “[S]ection 1237.5 provides that a defendant may not appeal ‘from a judgment of
conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to
the trial court for, and the trial court has executed and filed, ‘a certificate of probable
cause for such appeal.’ [Citation.] ‘Despite this broad language, we have held that two
types of issues may be raised on appeal following a guilty or nolo plea without the need
for a certificate: issues relating to the validity of a search and seizure, for which an
appeal is provided under . . . section 1538.5, subdivision (m), and issues regarding
proceedings held subsequent to the plea for the purpose of determining the degree of the
crime and the penalty to be imposed.’ [Citation.] [¶] . . . [¶] . . . ‘[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. Shelton (2006) 37 Cal.4th 759, 766 (Shelton); see People v.
Panizzon (1996) 13 Cal.4th 68, 79.)
       Defendant argues that his “challenge is to the penalty that was imposed, and not to
the plea bargain.” He reasons that he “does not challenge the sentence term agreed to in
the plea bargain, and for that reason does not challenge the validity of the plea.” But as
we have seen, the plea bargain included the three-year sentence as well as the two-year
sentence. Defendant “negotiated” the penalty for his failure to surrender as part of the
plea bargain and his challenge to the negotiated penalty is a challenge to the validity of
the plea. Thus, his claim requires a certificate of probable cause. (Shelton, supra,
37 Cal.4th at p. 766.)
                                       DISPOSITION
       The appeal is dismissed.
                                                              RAYE               , P. J.
We concur:

          BUTZ               , J.

          MAURO              , J.


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