Filed 6/20/13 P. v. Woodward 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Nevada)
                                                            ----

THE PEOPLE,                                                                                  C070676

                   Plaintiff and Respondent,                                    (Super. Ct. Nos. SF10226B,
                                                                                   SF11187B, SF11316)
         v.

GREGORY JAMES NICHOLAS WOODWARD,

                   Defendant and Appellant.




         This appeal is from three separate cases involving defendant Gregory James
Nicholas Woodward.
                         FACTUAL AND PROCEDURAL BACKGROUND
         The first case (SF10226A&B) arose when on June 25, 2010, defendant was
discovered in possession of a stolen vehicle. On November 4, 2010, he pled no contest to
unlawful taking of a vehicle in exchange for a promise of probation upon the condition he
serve up to 365 days in jail and dismissal of four additional drug related charges. On
December 27, 2010, he signed a written agreement (entitled “Vargas waiver”1) agreeing




1     The term “Vargas waiver” is derived from the case of People v. Vargas (1990)
223 Cal.App.3d 1107.

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that if he did not appear at the sentencing hearing, the trial court could impose any lawful
sentence, even if it was inconsistent with the plea agreement. On May 13, 2011,
defendant did not appear and a bench warrant was issued.
       The next day, May 14, 2011, officers recognized defendant during a traffic stop,
searched him, and discovered he was under the influence of a stimulant and in possession
of methamphetamine, and acetaminophen/propoxyphene (a schedule IV narcotic pain
reliever) without a prescription. Defendant had been a passenger in the vehicle. The
vehicle had been stolen.
       In the second case (SF11187B) defendant was charged with possession of a
controlled substance, two counts of receiving stolen property, two counts of failure to
appear, being under the influence of a controlled substance, and unlawful taking of a
vehicle.
       On June 6, 2011, while released on bail and on probation with a condition he not
possess any weapons, defendant was found carrying a sword, a metal “SAI” (martial arts
weapon consisting of a pointed dagger and prongs), a double-headed axe, 17 knives, and
a live round of .25-caliber ammunition. This resulted in the third case. He was charged
with illegal possession of ammunition by a convicted felon, with allegations he
committed the offense while released on bail, and that he has served a prior prison term.
       On September 7, 2011, defendant appeared in court on all three cases (as well as
several misdemeanor cases) -- on the first case for sentencing, on the second case for
change of plea or trial setting, and on the third case for arraignment. Defendant
stipulated to having been duly arraigned and said it was his intention to waive
preliminary hearing and time for sentencing on the third case. The following summary of
the trial court’s and parties’ understanding took place:
       “THE COURT: So just to put the big picture into play, what I understand based
upon our discussions in chambers and in the past many months has led us to this point
where after he enters a change of plea in the balance of cases, several various counts and

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others, and some misdemeanors cases, there will ultimately be a motion to dismiss those
by the prosecution that we will set a sentencing date out a few months, allow a pass for
him to enter and begin the residential treatment program that is part of the plan for him.
And after he’s been in there for several months we’ll have a status date from which to see
how far he’s progressed to see whether he can be released to travel back here for
imposition of sentence, and that sentence may depend on how he’s progressing in the
treatment program, in full or in part, because one of the conditions of the anticipated
probation is that he’s going to be waiving his custody credits if he fails to successfully
complete the residential treatment program. Is that your understanding?
       “THE DEFENDANT: Yes.
       “THE COURT: So even though we’re not going to sentence him today, it’s the
anticipated sentence at this point in time that generally the imposition of sentence will be
suspended, he’ll be placed on five years formal probation, that the balance of his custody
time may be served in the residential treatment program with the additional terms and
conditions of search and seizure, testing, seeking employment after he completes his
residential outpatient transitional programming and other relevant terms of probation, but
we will not be imposing those until we’ve had some proof and some time for you to
begin your treatment program.
       “And one of the reasons we’re doing that is because we don’t have probation here,
we don’t have an updated probation report, and that’s going to take a month to six weeks
to prepare. We don’t have an accurate tabulation of your custody credits because it’s
complicated by the fact that arguably some of your time may have been served in Placer
County, but it may or may not be allowed to credit against these cases, and we have a lot
of circumstances where you’re in custody on more than one case. So how we distribute
those credits may have a significant impact; it may not, depending on how it goes.
       “So that’s my big picture understanding. Is that your client’s understanding, Mr.
Walker [defense counsel].

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       “MR. WALKER: Yes, it is.
       “MR. PHILLIPS [prosecutor]: Yes. I would ask the Court to clarify because three
different plea agreements from three different times, that the defendant understands that
if that he absconds from this program the Court can sentence him straight to prison.
       “MR. WALKER: And, really, I think -- again, I talked to my client about it and
the way I think the Court has made it clear if Mr. Woodward is not capable or willing to
successfully complete any impatient program as determined by the Court, then the Court
could sentence him to State prison. So, in other words, Mr. Woodward understands that
he’s completely on the hook, so to speak, to this Court and the requirements.”
       The trial court then clarified the arrangement to defendant as follows:
       “THE COURT: Mr. Woodward, just so you understand, by agreeing to go into
this program, if you decide this isn’t working or you and you fail on the program, you’re
exposing yourself to three separate felony cases where State prison is the likely sentence
in each case individually. So you understand that your choices are successfully complete
the program or pretty much resign yourself to a State prison commitment --
       “THE DEFENDANT: Yes, Your Honor.
       “THE COURT: -- in one or all three cases.”
       The trial court then explained that he would need to contact his attorney and get an
order allowing him to leave the program prior to leaving before its completion. The trial
court then stated:
       “THE COURT: Right. So Mr. Woodward, I’m going to go through this plea form
in [the second case], and the same rights and the same discussion will apply to [the third
case]. However, we’ll go through the actual pleas and address the waivers separately, but
all these -- the entire discussion applies to both cases.
       “THE DEFENDANT: All right.”
       After reviewing the charges, maximum potential sentences, and defendant’s rights,
the trial court accepted defendant’s change of plea of no contest to unlawful driving of a

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vehicle and possession of a controlled substance in the second case, and to possession of
ammunition in the third case, in exchange for dismissal of the remaining counts and
allegations. The trial court said the maximum term for the second case was four years
eight months and did not recite any promise or agreement for probation. It did not recite
any maximum, promised or agreed-upon sentence for the third case, although both
defense counsel and the prosecutor explained that it had been agreed that the charge
would not be reduced to a misdemeanor pursuant to Penal Code2 section 17,
subdivision (b), unless defendant successfully completed felony probation.
       Written change of plea forms for the second and third cases were submitted to the
court and defendant waived time for sentencing. The written change of plea form for the
second case indicated defendant would receive three years of formal probation and up to
365 days in jail. The prosecutor, however, signed the form indicating he did not agree
with the terms of the plea or indicated sentence therein. The written change of plea form
for the third case stated it was an “open plea” and recited the agreement that no reduction
pursuant to section 17, subdivision (b) would be permitted unless defendant completed
probation. The prosecutor signed the form indicating his agreement to the terms therein.
The box providing that the plea would convert to an open plea upon any subsequent
failure to appear was not initialed on any of the plea forms.
       At the conclusion of the oral change in plea on the third case, the prosecutor
interjected, “Your Honor, in this case we don’t need a Vargas waiver because it’s an
open plea, but the Court should probably clarify with the defendant that he understands if
he absconds, he should expect to go straight to prison when he comes back before the
court.” The trial court responded, “I think we stated that. [¶] And you understand that,
Mr. Woodward?” Defendant replied, “Yes, Your Honor” and his counsel added, “For the




2      Further undesignated statutory references are to the Penal Code.

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record, You Honor, his lawyer does as well.” The trial court then postponed sentencing
to permit defendant to enroll in a residential drug treatment program.
       The following day, however, it was discovered that Placer County had a no-bail
hold on defendant and would not agree to his release. Defendant was transferred to
Placer County to resolve his cases in that county. Nevada County then revoked
defendant’s status of released on his own recognizance so upon resolution of the Placer
County cases, defendant would be returned to Nevada County. Nonetheless, Placer
County released defendant and defendant entered into the residential treatment program.
       Defendant was returned on the warrant on January 20, 2012. He had been
terminated from the residential program for misbehavior. The trial court ordered an
updated probation report and, on March 6, 2012, proceeded to sentencing.
       Prior to pronouncing sentence, the trial court noted that it had reviewed the
probation report and had discussed the case “in conference” with the prosecutor and
defense counsel on several occasions. It also noted that the parties had agreed that
probation would be denied. The court then sentenced defendant to an aggregate term of
five years as follows: on the second case -- the middle term of three years for unlawful
driving of a vehicle and a consecutive eight months for possession of a controlled
substance; on the first case -- a consecutive eight months for unlawful taking of a vehicle;
on the third case -- a consecutive eight months for possession of ammunition. Defendant
was awarded 362 days of custody credit.
       Defendant appeals. He obtained a certificate of probable cause. (§ 1237.5.)
                                       DISCUSSION
                                              I
                                        Introduction
       Pursuant to People v. Wende (1979) 25 Cal.3d 436, counsel filed an opening brief
that sets forth the facts of the case and asked this court to review the record and
determine whether there are any arguable issues on appeal. Defendant Gregory

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Woodward was advised by counsel of the right to file a supplemental brief within 30 days
of the date of filing of the opening brief. Defendant filed a supplemental brief contending
he should be permitted to withdraw his plea in the second case and that he is entitled to
additional custody credits for time served in Placer County custody. We requested
supplemental briefing from counsel on whether defendant should be permitted to
withdraw his plea in the second case. We address these issues, in addition to undertaking
a review of the record as required by Wende, and affirm.
                                              II
                            Withdrawal Of Plea In Second Case
       Defendant contends he must be permitted the opportunity to withdraw his plea in
the second case because he entered the plea with the promise of probation and his prison
sentence exceeded the terms of the agreement.
       Section 1192.5 provides in 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.”
       In what is commonly known as a Cruz waiver (or similarly, a “Vargas waiver”),
the parties prearrange an agreement wherein the defendant waives his rights under
section 1192.5 in the event a certain condition, such as failure to appear at sentencing,
should occur “such that . . . the trial court may withdraw its approval of the defendant’s
plea and impose a sentence in excess of the bargained-for term.” (People v. Cruz (1988)

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44 Cal.3d 1247, 1254, fn. 5.) In People v. Vargas, supra, 223 Cal.App.3d 1107, the
appellate court upheld an arrangement wherein the defendant agreed in a plea agreement
to be sentenced to a two-year term if he appeared for sentencing and a five-year term if
he failed to appear for sentencing. Such arrangements for increased sentences are
permissible if made part of the plea agreement. (People v. Masloski (2001) 25 Cal.4th
1212, 1217-1223; see also People v. Jensen (1992) 4 Cal.App.4th 978, 981-984.) The
trial court cannot, however, unilaterally impose a sanction for nonappearance in the form
of an increased sentence exceeding that which was negotiated as part of the plea
agreement. (Masloski, at pp. 1217-1223.)
       Defendant contends he was promised probation as a term of his plea agreement in
the second case and, therefore, the trial court’s imposition of a prison term was in
violation of the terms of his agreement. He contends that, to the extent imposition of the
prison sentence was based on defendant’s agreement that his failure to complete
residential treatment would convert the plea to an open plea, that agreement cannot be
enforced absent an advisement of the right to withdraw his plea should the trial court
subsequently disapprove of its terms.
       Initially, we observe that it is not clear that defendant was ever “promised”
probation as a term of his plea agreement -- whether it be three years, as set forth on the
written change of plea form not agreed to by the prosecutor, or five years as the trial court
recited as the anticipated sentence depending on how defendant was progressing in the
treatment program. In any event, it was clarified prior to defendant’s entry of his no
contest plea that the parties had agreed sentencing would be postponed to permit him to
enter into a residential treatment program but that if he failed the program, he would be
sentenced to state prison on all three cases. While the terms of this “Vargas waiver”
were repeated at the prosecutor’s request after defendant entered into his no contest pleas,
this is not a case where the trial court unilaterally and subsequently imposed such a
condition of release upon the defendant. The terms of the “Vargas waiver” here were

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clearly contemplated and agreed upon by the parties as part of the plea agreements in
both the second and third cases.
       Contrary to defendant’s contention, the trial court’s failure to advise defendant of
his right to withdraw his plea should the court subsequently disapprove of its terms, as
required by section 1192.5, is of no consequence. The trial court did not disapprove of
the plea agreement when it imposed the prison sentence but rather, imposed prison as a
consequence of defendant’s termination from the residential treatment program, as
provided for by the terms of the plea agreement. Because the trial court acted in
accordance with the terms of the plea agreement, the provisions of section 1192.5 that
permit defendant to withdraw his plea if the court withdraws approval of the agreement
were not implicated. (People v. Masloski, supra, 25 Cal.4th at pp. 1223-1224.)
                                               III
                               Placer County Conduct Credits
       In his supplemental brief, defendant states: “While I was in Placer County I was
fighting [the first case] in Nevada County at the same time. I should receive credits for
both cases. I did not.” Defendant is not entitled to dual custody credit.
       Section 2900.5 provides, in pertinent part: “(a) In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in custody,
including . . . any time spent in a jail, . . . including days served as a condition of
probation in compliance with a court order, . . . shall be credited upon his or her term of
imprisonment, . . . [¶] (b) For the purposes of this section, credit shall be given only
where the custody to be credited is attributable to proceedings related to the same conduct
for which the defendant has been convicted. Credit shall be given only once for a single
period of custody attributable to multiple offenses for which a consecutive sentence is
imposed.”




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       In Bruner, our Supreme Court rejected the defendant’s request for credits against
his drug sentence for time already served and credited on the parole revocation term,
ruling that “when presentence custody may be concurrently attributable to two or more
unrelated acts, and where the defendant has already received credit for such custody in
another proceeding,” defendant must demonstrate that “but for” the charge on which he
was convicted and for which he seeks credits, he would have been free during the
presentence period. (People v. Bruner (1995) 9 Cal.4th 1178, 1180).) The high court
reasoned that section 2900.5 was “intended only to prevent inequalities in total
confinement among defendants, each similarly sentenced in a single proceeding, which
inequalities arise solely because one defendant suffered presentence confinement while
another did not. Section 2900.5 is not intended to bestow the windfall of duplicative
credits against all terms or sentences that are separately imposed in multiple
proceedings.” (Bruner, at p. 1191.) Accordingly, the court concluded: “[W]hen
presentence custody may be concurrently attributable to two or more unrelated acts, and
where the defendant has already received credit for such custody in another proceeding,
the strict causation rules . . . should apply.” (Id. at p. 1180.)
       Here, defendant received credit for his Placer County custody time in his Placer
County case. He has failed to demonstrate that, but for his activities which gave rise to
the charges in the first case, he would have been free, or at least bailable, during that
presentence period. (People v. Bruner, supra, 9 Cal.4th at p. 1180.) Because he cannot
show that the sole reason for his loss of liberty during his period of confinement in Placer
County were the charges in the first case, he is not entitled to dual custody credit for that
time. (See People v. Mendez (2007) 151 Cal.App.4th 861, 864-865.)
                                               IV
                           Review Of Record Pursuant To Wende
       Having also undertaken an examination of the entire record, we find no arguable
error that would result in a disposition more favorable to defendant.

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                                   DISPOSITION
     The judgment is affirmed.



                                            ROBIE   , J.



We concur:



     NICHOLSON        , Acting P. J.



     DUARTE        , J.




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