Filed 8/7/13 P. v. Church CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                   DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062490

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF29014)

GRANT DONALD CHURCH,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa,

Judge. Reversed.



         Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Grant Donald Church contends the trial court erred when

it sentenced him to the upper term of three years in state prison instead of the two-year

term negotiated in his plea agreement after Church violated his condition of release.

Church contends this matter should be remanded for resentencing in accordance with his

plea bargain or, if the trial court chooses not to impose that bargained-for sentence, to

allow him to withdraw his guilty plea. We agree.

                  FACTUAL AND PROCEDURAL BACKGROUND1

       On or about June 19, 2012, two soft drink vending machines located at a store in

El Centro, California were found to have their outside metal shells cut and their bill and

coin collection boxes removed. An estimated $171 in currency was missing from the

vending machines, each of which was valued at about $2,500.

       The following day, El Centro police officers stopped Church driving a truck.

Police found a handheld circular saw and pry bars in the bed of the truck and 65, $1 bills

on Church's person. Church initially admitted the saw belonged to him but changed his

story when officers told him they were investigating the vandalism to the vending

machines from the previous day. Church then told officers he might know who was

responsible for the vandalism. Cut marks on the metal shell of the vending machines

matched the cutting disc of the circular saw found in the truck being driven by Church.



1      The factual summary is derived from the probation officer's report. The parties
stipulated there was a factual basis for Church's plea as Church admitted only that
witnesses would testify under oath that he possessed and controlled property he knew
was stolen.
                                              2
       A felony complaint charged Church with receiving stolen property (Pen. Code,2

§ 496, subd. (a); count 1); felony vandalism (§ 594, subd. (a); count 2); and misdemeanor

possession of burglar's tools (§ 466; count 3). As to counts 1 and 2, the complaint further

alleged Church had a prior conviction for a serious felony. (§ 667, subd. (a)(1).)

       On July 10, 2012, Church entered into a negotiated plea agreement in which he

pled no contest to count 1 for receiving stolen property in exchange for a two-year

midterm suspended prison sentence, imposition of formal probation on the condition he

enroll in a one-year residential drug treatment program at Turning Point, and dismissal of

counts 2 and 3 and the prior conviction allegation. The change of plea form did not

include a Cruz waiver.3 The court set sentencing for July 24, 2012, and Church remained

in custody.

       On July 24, the court granted Church's request for a continuance of the sentencing

hearing to July 27. The prosecutor involved in the plea negotiation was unavailable on

July 27, and the court continued sentencing to July 30. In so doing, the court agreed to

release Church to the "direct custody [of] any representative from the Turning Point

program," inasmuch as there was a bed then available for him, "under the conditions that

he obeys all laws, makes all court appearances and follows the instructions of the Turning

Point program."




2      All statutory references are to the Penal Code.

3      See People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), discussed post.
                                             3
        Before the July 27 hearing concluded, the People asked for a Cruz waiver. In

response, the court explained to Church the meaning of a Cruz waiver as follows:

        "That Cruz waiver, Mr. Church, is really important and I'm kind of a stickler for.

What it is is this. If you don't come to court when you are supposed to and are ordered to

come, unless you have a good excuse -- we call it good cause -- then all bets are off.

Whatever agreements have been reached before in return for your plea are no longer.

The People are no longer bound by them. So if you agreed to X, now it can be double,

triple. You will get sentenced to whatever the Court[] feels is appropriate. If you had

agreed on probation, the judge can say, 'Forgot about probation. Send you to state

prison,' if that is something the law allows.

        "I'm not saying that will happen. I want to make sure you understand all bets are

off -- all bets -- if you don't return. And that will be a condition of your release. [¶]

Okay.

        "[Mr. Church]: Yes.

        "THE COURT: Any comment, [defense counsel]?

        "[Defense counsel]: No.

        "THE COURT: I'll release you. However, it's not strictly speaking just releasing

you on the streets. I'll release you to the representatives of Turning Point."

        Church and his defense counsel both signed the Cruz waiver file-stamped July 27,

2012. It provides: "Negotiated Disposition pursuant to Penal Code [section] 1192.5: [¶]

I [Church] understand that if pending sentencing I am arrested for or commit another


                                                4
crime, violate any condition of my release, or willfully fail to appear for my probation

interview or for my sentencing hearing, the sentence portion of this agreement will be

cancelled. I understand that I will be sentenced unconditionally, and I will not be

allowed to withdraw my guilty/no contest plea."

       At the conclusion of the hearing on July 27, the court cautioned Church that he

was required to "obey all laws and follow the instructions and rules over at Turning

Point."

       In the evening of July 27, after spending less than two hours at Turning Point,

Church walked away from the program and turned himself in to law enforcement on July

30. That same day, the court remanded Church into custody for leaving the Turning

Point program, set his bail at $100,000 and continued the sentencing hearing to August 7.

       The court on August 7 sentenced Church to the upper term of three years in state

prison on count 1, to be served in county jail pursuant to section 1170, subdivision (h).

                                      DISCUSSION

       As noted ante, Church contends either that the plea bargain should be specifically

enforced with his sentence being two years in state prison or that he should be permitted

to withdraw his guilty plea.

       A. Governing Law

       Courts "often have noted that plea agreements are a recognized procedure under

our judicial system [citations] and a desirable and essential component of the

administration of justice. [Citations.] Commentators are in accord, noting that '[b]oth the


                                             5
state and the defendant benefit from plea bargains, the defendant by lessened punishment,

the state by savings in cost of trial, increased efficiency, and flexibility of the criminal

process.' [Citation.] Additionally, the enactment of sections 1192.3 and 1192.5,

governing plea agreements, reflects the Legislature's approval of the practice.

       "Under section 1192.5, if a plea agreement is accepted by the prosecution and

approved by the court, the defendant 'cannot be sentenced on the plea to a punishment

more severe than that specified in the plea . . . .' The statute further provides that if the

court subsequently withdraws its approval of the plea agreement, 'the defendant shall be

permitted to withdraw his or her plea if he or she desires to do so.'[4] [Citations.]

       "In People v. Cruz, supra, 44 Cal.3d 1247, 1249, [our high court] held that a

defendant who fails to appear for sentencing does not lose the protections of section

1192.5. The defendant in that case 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 without probation. The defendant failed to

appear for sentencing. When he was apprehended more than six months later, the

superior court refused to abide by the plea agreement, denied the defendant's motion to

4       "Section 1192.5 provides, in relevant part: 'Where 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. [¶] 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 light of further consideration of the matter, and (3)
in that case, the defendant shall be permitted to withdraw his or her plea if he or she
desires to do so.'"
                                               6
withdraw his plea, and sentenced him to a term of two years in prison. The Court of

Appeal affirmed the resulting judgment, concluding that by failing to appear for

sentencing, the defendant '"breached the bargain . . . [and] is not entitled to either specific

enforcement of that bargain or withdrawal of his guilty plea."' (People v. Cruz, supra, 44

Cal.3d at p. 1250, fn. omitted.) [Our Supreme Court] granted review and reversed the

judgment of the Court of Appeal, relying upon a line of Court of Appeal opinions that

began with People v. Morris (1979) 97 Cal.App.3d 358.

       "In People v. Morris, pursuant to a plea agreement, the defendant pleaded guilty to

two counts of aggravated assault in exchange for the dismissal of the three remaining

counts of aggravated assault and a promise that a prison term would not be imposed.

Defense counsel noted that the court had agreed to release the defendant on his own

recognizance pending sentencing. The court stated that, in order to ensure that

defendants who had been released on their own recognizance appeared for sentencing, it

had adopted a practice of sentencing such defendants to prison but staying execution of

the sentence until the date set for formal sentencing. As the court explained to the

defendant: '"That way, you see, I don't have to get the O.R. people to interview you and

all that. All I do is say if you come back, we'll do what the probation report recommends

and what I decide is appropriate on those two counts. But if you don't come back, a

warrant will go out, you'll go to State Prison. And that means you're sure to come back,

right?"' (People v. Morris, supra, 97 Cal.App.3d at p. 361, fn. 1.)




                                               7
       "The defendant agreed to this arrangement, entered his plea, and was sentenced to

prison. Execution of the sentence was stayed, and the defendant was released on his own

recognizance until the date set for sentencing. The court reiterated that if the defendant

appeared for sentencing, '"I will rescind the State Prison sentence and proceed in

accordance with the plea bargain. If he doesn't appear, I'll leave the State Prison sentence

outstanding and issue a warrant and send everybody out to find him."' (People v. Morris,

supra, 97 Cal.App.3d 358, 361, fn. 3, italics omitted.) The defendant failed to appear for

sentencing and was apprehended two months later. The superior court denied the

defendant's motion to withdraw his plea and remanded him to begin serving the

previously imposed prison sentence.

       "The Court of Appeal in Morris reversed, concluding that the superior court

lacked the authority to impose 'such an unusual sentencing-release procedure' and that the

lower court's authority to approve the terms of the plea agreement 'did not sanction the

wholly unrelated and unbargained condition interjected by the court concerning

defendant's candidacy for immediate O.R. release pending contemplated formal

sentencing proceedings.' (People v. Morris, supra, 97 Cal.App.3d 358, 363.) The court

in Morris concluded that the defendant was entitled under section 1192.5 to withdraw his

plea in the event the terms of the plea agreement were not enforced.

       "Similarly, in People v. Barrero (1985) 163 Cal.App.3d 1080, the defendant

pleaded guilty to felony joyriding pursuant to an agreement that he would receive a

sentence of 16 months in prison. The defendant was told that if he failed to report to the


                                             8
probation department or failed to appear for sentencing, he '"would receive either two or

three years in prison, but he would not be allowed to back out of the plea bargain."' (Id.

at p. 1082.) Defendant failed to report to the probation department and failed to appear

for sentencing. After being apprehended, he was sentenced to three years in prison.

Relying upon the decision in People v. Morris, supra, 97 Cal.App.3d 358, the Court of

Appeal reversed, rejecting the People's argument that Morris was distinguishable because

Barrero had 'bargained away his right to withdraw his guilty plea.' (People v. Barrero,

supra, 163 Cal.App.3d at p. 1085.) In the court's view, the sanction for nonappearance

had been '"engrafted"' upon the terms of the negotiated plea agreement and was

ineffective. (Ibid.) As . . . observed in Cruz, because Barrero, like Morris, had not been

advised of his right to withdraw his plea under section 1192.5 if the plea agreement was

disapproved, 'he could not be deemed to have bargained away his right to withdraw his

guilty plea. [Citation.]' (People v. Cruz, supra, 44 Cal.3d 1247, 1252.)

       "Following the decision in Morris, [our high court] held in Cruz that a defendant

who fails to appear for sentencing does not breach the terms of the plea agreement, but

commits 'a separate offense of failure to appear. (See §§ 1320 and 1320.5.)' (People v.

Cruz, supra, 44 Cal.3d 1247, 1253.) Accordingly, [the court] held, as noted above, that a

defendant who fails to appear for sentencing does not lose the protections of section

1192.5. In a footnote, [it] added the following caveat: '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


                                              9
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.' [Italics added.] (People v. Cruz, supra, 44 Cal.3d at p. 1254,

fn. 5.)

          "In People v. Vargas (1990) 223 Cal.App.3d 1107, the Court of Appeal

distinguished our decision in Cruz and held that a plea agreement validly could provide

for a specified greater term to be imposed in the event the defendant failed to appear for

sentencing, and to a specified lesser term if the defendant did appear. Vargas pleaded

guilty to two counts of possession of controlled substances pursuant to a plea agreement

that called for a total sentence of two years in prison if he appeared for sentencing but a

total term of five years in prison if he failed to appear for sentencing. The prosecutor

described this arrangement as '"a negotiated disposition agreed upon by both sides solely

to allow [the defendant] to remain free till the probation and sentence date . . . ."' (People

v. Vargas, supra, 223 Cal.App.3d at p. 1109, fn. 1.) The defendant and defense counsel

confirmed that this was their understanding of the terms of the plea agreement, but

defendant was not advised of his right under section 1192.5 to withdraw his plea if the

court subsequently withdrew its approval of the plea agreement. The defendant failed to

appear for sentencing and was apprehended 14 months later. The court denied the

defendant's motion to withdraw his plea and sentenced him to a total term of five years in

prison.


                                              10
          "The Court of Appeal affirmed the resulting judgment, rejecting the defendant's

contention that the sentence violated section 1192.5 as construed in Cruz. The court in

Vargas distinguished 'the Morris line of cases and Cruz' on the basis that the superior

court in Vargas 'did 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.'

(People v. Vargas, supra, 223 Cal.App.3d 1107, 1113.) The provisions of section 1192.5

did not apply because '"the court didn't change the bargain."' (People v. Vargas, supra,

223 Cal.App.3d at p. 1113.) In so holding, the court in Vargas relied upon the decision in

People v. Jackson (1980) 103 Cal.App.3d 635.

          "In Jackson, the defendant pleaded guilty to second degree burglary pursuant to a

plea agreement in which the People promised to move for the dismissal of a second count

of burglary and 'not oppose reduction to a misdemeanor at time of sentencing if no prior

record. Six months maximum.' (People v. Jackson, supra, 103 Cal.App.3d 635, 637.)

The trial court approved the plea agreement, taking care to explain to the defendant that

the proposed sentence was conditioned upon his having no prior record. The defendant

said he understood. After the probation report subsequently revealed that the defendant

had an extensive prior criminal record, the court sentenced him to a term of three years in

prison.

          "The Court of Appeal in Jackson affirmed the resulting judgment, rejecting the

defendant's argument that he should have been permitted to withdraw his plea and

reasoning that section 1192.5 applies only if 'the court makes a unilateral modification in


                                              11
the sentence agreed upon at the time of plea.' (People v. Jackson, supra, 103 Cal.App.3d

635, 638.) The court explained: 'Here, the court didn't change the bargain. The express

agreement required a misdemeanor sentence only upon the condition of defendant having

a clean record. If that condition were not met, neither the bargain nor the statute gave

defendant the right to withdraw his plea.' (Ibid.)

       "The distinction drawn in People v. Vargas, supra, 223 Cal.App.3d 1107, 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, was recognized in People v.

Jensen (1992) 4 Cal.App.4th 978. The defendant in Jensen pleaded guilty to a charge of

possession of a concealable firearm by a felon, pursuant to a plea agreement that included

a term of one year in county jail. After defense counsel recited the terms of the plea

agreement to the court, he requested a 'stay of execution,' indicating he understood the

court's policy of ensuring a defendant's appearance by sentencing him or her to a term of

two years in state prison and staying execution of that sentence pending the defendant's

appearance for sentencing. Defendant failed to appear for sentencing. When he was

apprehended, the court ordered execution of the two-year prison sentence and denied the

defendant's motion to withdraw his plea.

       "The Court of Appeal reversed, concluding that 'the trial court maintained a return

policy similar to those criticized in the Morris line of cases and sentenced appellant

pursuant to such policy rather than the plea bargain agreement reached between appellant


                                             12
and the district attorney.' (People v. Jensen, supra, 4 Cal.App.4th 978, 982.)

Significantly, the court concluded 'that the return provision was not a valid part of

appellant's plea bargain.' (Id. at p. 984.)

       "Similarly, the court in People v. Murray (1995) 32 Cal.App.4th 1539, found a

nonappearance sanction invalid because it was not part of the plea agreement. Murray

pleaded guilty to two counts of residential burglary based upon an agreement that he

would be sentenced to no more than four years in prison. After reciting the terms of the

plea agreement on the record and obtaining the defendant's waiver of his constitutional

rights, the court indicated it would grant the defendant's '"request for a two-week hiatus

before he turned himself in,"' on the condition that if he failed to appear the court would

not be bound by the four-year maximum sentence. (Id. at p. 1542.) The defendant failed

to appear. When he was apprehended, the court sentenced the defendant to a total term of

six years and four months in prison.

       "The court in Murray distinguished the decision in Vargas, supra, 223 Cal.App.3d

1107, on the basis that, unlike the trial court's action in Vargas, 'the plea bargain itself did

not contemplate a sentence higher than the four-year middle term.' (People v. Murray,

supra, 32 Cal.App.4th 1539, 1545.) The sanction for nonappearance was imposed by the

court 'separate and apart from the plea bargain.' (Ibid.)

       "People v. Casillas (1997) 60 Cal.App.4th 445, presented a situation analogous to

that in Vargas. Casillas pleaded no contest to possession of methamphetamine pursuant

to a plea agreement under which, with the following conditions, he would be placed on


                                              13
felony probation and serve 90 days in county jail. The agreement provided that the

defendant would be released on his own recognizance pending sentencing, but if he failed

to appear for sentencing, the maximum sentence would be increased to three years in

prison. The defendant failed to appear and later was apprehended. The superior court

denied the defendant's motion to withdraw his plea and sentenced him to three years in

prison.

          "The Court of Appeal in Casillas examined the authorities discussed above and

distilled the following principles: '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.' (People v. Casillas, supra, 60 Cal.App.4th 445, 451-452.)

          "The appellate court in Casillas concluded that 'the return provision was a valid

part of the plea agreement itself and, therefore, enforceable without regard to section

1192.5.' (People v. Casillas, supra, 60 Cal.App.4th 445, 453.) The court observed that

the plea agreement at issue differed from the agreement involved in Vargas, 'because

Casillas did not agree "to a specific greater term to be imposed if he should fail to appear


                                               14
for sentencing,"' but found this difference 'insignificant.' (Id. at p. 452, italics added.)

The court also found insignificant the circumstance that the plea agreement did not

specify a greater term of imprisonment as in Vargas but, rather, provided for an increase

in the maximum possible prison term in the event the defendant failed to appear. The

court in Casillas stated: 'We see no reason why the parties should not be free to negotiate

a lesser sanction for nonappearance than imposition of a specific greater sentence.

Indeed, such a lesser sanction preserves the panoply of procedural protections and rights

for the sentencing hearing.' (People v. Casillas, supra, 60 Cal.App.4th at p. 452.)"

(People v. Masloski (2001) 25 Cal.4th 1212, 1216-1222.)

       In People v. Masloski, the defendant argued that a provision for an increased

sentence in the event the defendant did not appear at sentencing was not part of the plea

agreement but was imposed by the trial court as part of a separate "'contract.'" (25

Cal.4th at p. 1222.) Our Supreme Court disagreed, noted that the trial court at the outset

of the defendant's plea agreement accurately described the terms of the agreement, which

included what the court referred to as a "'Cruz waiver'" (ibid.), and explained that "a

'Cruz waiver' signified that defendant could receive an increased sentence of up to six

years in prison in the event [the defendant] failed to appear for sentencing." (Ibid.) The

trial court next confirmed the terms of this agreement with the People and the defendant

and his counsel. (Ibid.)

       Relying on People v. Casillas, among many other authorities, our high court in

People v. Masloski, supra, 25 Cal.4th 1212 found that the "'relevant transcript leaves no


                                               15
doubt a plea agreement already had been negotiated' . . . and that the agreement included

a provision for an increased sentence in the event defendant failed to appear for

sentencing[:]

       "Having confirmed the terms of the plea agreement, including the provision for an

increased sentence in the event defendant failed to appear, the [trial] court [in People v.

Masloski] turned its attention to defendant and explained in detail the aspect of the

agreement providing that she could receive an increased sentence upon failing to appear

for sentencing. The court then obtained defendant's assurance that she understood and

agreed to this arrangement. Although the court used the term 'contract' in referring to this

part of the agreement, we do not accept defendant's contention that the use of this

terminology signified that the 'Cruz waiver' was not part of the plea agreement. The

court apparently used this term, which is familiar to laypersons, to impress upon

defendant the importance of this aspect of the agreement and the circumstance that her

nonappearance would have serious consequences.

       "The decision in Vargas observed that the holding in Cruz, and the cases upon

which it relied, 'serve the objective that plea bargains "'implement the reasonable

expectations of the parties . . . .'"' (People v. Vargas, supra, 223 Cal.App.3d 1107, 1112.)

The [Vargas] court went on to state: 'That expectation was served in this case. Here,

unlike the Morris line of cases and Cruz, the trial court did 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. The plea bargain specified the sentence defendant was


                                             16
to receive: two years if he appeared at the sentencing hearing, and five years if he did not.

[¶] Neither defendant, his attorney, nor anyone else involved in the plea bargain could

have had any reasonable expectation other than that the bargained-for term of five years

would be imposed if defendant failed to appear at the sentencing hearing.' (Id. at p. 1113,

fn. omitted.) The same is true in the present case. The trial court listed the 'Cruz waiver'

as one of the terms of the plea agreement, and defendant clearly understood that part of

the agreement was that her sentence could be increased in the event she failed to appear

for sentencing. The provision for an increased sentence upon defendant's nonappearance

was part of the plea agreement and not 'a judicially imposed afterthought.' (People v.

Casillas, supra, 60 Cal.App.4th 445, 452.)

       "Defendant is correct that the superior court, when it accepted defendant's plea of

no contest, failed to advise her as required by section 1192.5 of her right to withdraw her

plea in the event the court subsequently disapproved the plea agreement. But this error

was of no consequence, because the superior court did not disapprove the plea agreement.

Rather, when defendant failed to appear on the date set for sentencing, she was sentenced

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 defendant to a prison term that

did not exceed (and in fact was less than) the maximum sentence authorized by the plea




                                             17
agreement in the event that defendant failed to appear on the date set for sentencing."

(People v. Masloski, supra, 25 Cal.4th at pp. 1222-1224.)

       B. Analysis

       The following facts are undisputed: (1) the July 10, 2012 plea agreement did not

include a Cruz waiver, inasmuch as that waiver was imposed by the court on July 27—17

days after the plea agreement was negotiated and accepted by the trial court; (2) when

Church walked out of the Turning Point program on July 27 after spending less than two

hours at the facility, he violated a condition of his release; (3) when the trial court

sentenced Church to a three-year prison term, that term not only was not part of the July

10 plea agreement, but it also was more onerous than the two-year bargained-for prison

term in the plea; and (4) at the time of sentencing, the court did not give Church the

option to withdraw his plea despite its refusal to adhere to the terms of the plea

agreement.

       These facts, which we conclude are supported by ample evidence in the record,

lead us to conclude that the trial court erred when it sentenced Church to three years in

state prison because neither the three-year term nor the alleged Cruz waiver was part of

the plea agreement. (See People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5 [noting that

any waiver of section 1192.5 must be "obtained at the time of the trial court's initial

acceptance of the plea" and must be "knowing and intelligent," and noting that the

agreement itself must include a provision for an increased sentence in the event the

defendant fails to appear for sentencing or otherwise violates a condition of his or her


                                              18
plea].) Moreover, the record shows the trial court also erred when it did not permit

Church to withdraw his plea after the court chose not to follow the terms of the parties'

agreement and instead imposed a three-year prison term for Church's violation of count 1.

(See § 1192.5.)

       Our decision is entirely consistent with the holding and teaching of our high court

in People v. Masloski and of the court in People v. Vargas, among the many other cases

discussed herein, as it is merely an application of the rule that one party to a contract may

not after-the-fact impose terms and/or conditions on the other contracting party (i.e., the

defendant) that were not part of the bargained-for/negotiated contract (i.e., plea

agreement). (See People v. Masloski, supra, 25 Cal.4th at p. 1223 [noting that plea

agreements serve an important public policy and that this policy is furthered only when

an agreement "'"'implement[s] the reasonable expectations of the parties'"'"].)

                                      DISPOSITION

       Church's sentence is reversed. On remand, the trial court is instructed either to

sentence Church according to the terms of the July 10, 2012 plea agreement or to permit

Church to withdraw his plea in accordance with section 1192.5.

                                                                       BENKE, Acting P. J.
WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.




                                             19
