Filed 3/7/13 P. v. Cross CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055055

v.                                                                       (Super.Ct.Nos. BLF004863 &
                                                                         BLF004992)
DENNIS DEON CROSS,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Thomas N. Douglass, Jr.,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

         Renee Paradis, 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, Andrew Mestman and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       Defendant and appellant Dennis Deon Cross was charged with numerous offenses.

He agreed to plead guilty to one felony charge, admit one strike prior and three prison

term priors, in exchange for dismissal of the remaining counts. Pending sentencing,

defendant was released on his own recognizance pursuant to a “Cruz waiver.”1 That is,

defendant promised to appear for sentencing and agreed to an additional three years of

incarceration if he did not appear as promised. Defendant failed to appear for sentencing,

and became subject to the increased sentence under the Cruz waiver.

       Now, however, defendant claims he should be allowed to withdraw his plea,

asserting that a mistake in the amount of presentence custody credits he may be awarded

was a material part of the plea bargain. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       The Blythe Police Department was conducting an investigation into some

complaints of identity theft involving fictitious checks. By May 22, 2008, the

investigating officers had focused their suspicions on defendant. Officer Scott Adams

had learned that defendant was residing with his girlfriend in her apartment, so he and

Corporal Heriberto Cavazos went there to conduct a parole search of defendant’s

residence. As the officers entered the apartment to conduct the search, defendant fled out

a window.




       1   People v. Cruz (1988) 44 Cal.3d 1247, 1249.


                                            2
       The search turned up mail addressed to persons who had been victims of identity

theft and a laptop computer connected to a printer, with blank checks loaded into the

printer. The blank checks corresponded to other, completed checks that had been created

in the names of some of the identity theft victims. The victims had not authorized checks

to be written on their accounts to the payees of the completed checks. The officers also

found drugs and drug paraphernalia in the master bedroom, as well as two rounds of

firearm ammunition.

       As a result of the investigation, and after a preliminary hearing, defendant was

held to answer on charges of receiving stolen property (Pen. Code, § 496, subd. (a),

counts 1, 2 & 3); possession of counterfeiting apparatus (Pen. Code, § 480, subd. (a),

count 4); unlawful use of another person’s information (Pen. Code, § 530.5, subd. (a),

counts 5, 6 & 7, identity theft); possession of a blank check with intent to defraud (Pen.

Code, § 475, subd. (b), count 8); possession of a completed check with intent to utter and

defraud (Pen. Code, § 475, subd. (c), count 9); conspiracy to utter fraudulent checks (Pen.

Code, §§ 182, 476, count 10); conspiracy to commit identity theft (Pen. Code, §§ 182,

530.5, count 11); possession of methamphetamine (Health & Saf. Code, § 11377, count

12); being a felon in unlawful possession of firearm ammunition (Pen. Code, § 12316,

subd. (b), count 13); and possession of drug paraphernalia (Health & Saf. Code, § 11364,

count 14, the sole misdemeanor charge). The amended information also alleged that

defendant had suffered one prior strike conviction and four prior separate prison term

convictions. In addition, the amended information alleged that defendant had suffered



                                             3
numerous prior felony convictions for purposes of Penal Code section 1203, subdivision

(e)(4).

          Later, the People moved to consolidate these charges with other charges

(possession of stolen property and possession of drug paraphernalia). The court granted

the joinder motion.

          Shortly before the date jury trial was set to begin, defendant changed his plea. He

agreed to plead guilty to count 4 (possession of counterfeiting equipment, Pen. Code,

§ 480), and admitted his prior strike conviction, as well as three prison term priors. The

plea agreement provided that defendant would be sentenced to a second-strike prison

term of six years (three-year aggravated term, doubled) upon his surrender at sentencing.

The remaining charges would be held open pending defendant’s timely surrender.

Pursuant to a Cruz waiver, defendant would be subjected to an additional three years’

imprisonment for the prior prison terms if he did not appear as ordered for sentencing.

Defendant’s exposure was a minimum of six years and a maximum of nine years. The

plea agreement form awarded defendant credit for pretrial custody time served of 382

actual days in custody, and 382 days of conduct credits under Penal Code sections 4019

and 2933, for a total of 764 days.

          On the date of the sentencing hearing (March 11, 2010), defendant failed to

appear, and a bench warrant was issued. Defendant did not appear in court again until

nearly a year later, in February 2011. In August 2011, defense counsel filed a motion in

the trial court to withdraw defendant’s guilty plea on the ground of alleged incompetence

of trial counsel: “defendant’s prior trial counsel did not make any meaningful

                                               4
investigation of the facts and merely advised defendant that his only choice was to plead

guilty. Defendant was not fully advised as to the elements of the charged offenses and

the available defenses. Defendant pled guilty, despite his desire to go to trial because he

was told that pleading guilty was the only way he could get released to see his child that

had been born while he was in custody awaiting trial.” In addition, defendant asserted

that, when he pleaded guilty, “he believed he would be eligible to earn good time/work

time credits totaling 50% toward the completion of his sentence and this is not true as a

matter of law.” Defendant filed a declaration averring, to the same effect, that his

attorney had not investigated the facts of the case or advised defendant of the elements

required to be proven nor any defenses available. Defendant had falsely told the court

that he had discussed these matters with counsel, because the attorney told defendant the

only way he could get a brief release from custody was to plead guilty. Defendant

claimed he was under extreme emotional distress because he had been in custody

awaiting trial for over a year, and in that interval his child had been born. He had never

been able to see or hold his child. Defendant also averred that he “believed that, due to a

change in the law, I would be eligible to earn good time/work time credits that amounted

to day for day credits toward the entire sentence. Instead, I have now learned that the

maximum credits I may earn toward completion of the sentence are 20%. I would not

have pled guilty if I knew the truth about my eligibility for credits.”

       The People opposed the motion. The prosecutor argued that defendant had failed

to establish clear and convincing proof of good cause to withdraw the guilty plea.

Defendant’s motion amounted to a claim of ineffective assistance of counsel, but failed to

                                              5
take account in the record of the evidence of the offenses, and the steps taken by prior

counsel. The police reports and preliminary hearing testimony showed the evidence

against defendant on the charged offenses. Defendant already had a lengthy criminal

record, evidenced by numerous prior convictions and prison terms. Any potential

testimony defendant could have offered would be subject to impeachment with these

prior offenses. Crime scene photos substantiated the items of evidence found during the

search, and those items closely tied defendant to the charged offenses. Prior counsel had

also pursued a motion to suppress the evidence found during the parole search; the

attorney was actively involved in this on-the-record assessment of the strengths and

weaknesses of the prosecution’s case. The record of the change-of-plea hearing showed

that the trial court expressly examined defendant to determine whether he had a full

opportunity to discuss the matter with his attorney and to be advised of the consequences

of his plea; defendant assented on the record to both these propositions. Defendant’s

only evidence to contradict the record was that he lied in his responses to the court at that

hearing. The People also represented that, during some of the proceedings, defendant had

spoken directly to the prosecutor, with defense counsel present, seeking to persuade the

prosecutor to grant probation or drug treatment; in none of these negotiations did

defendant claim innocence.

       The trial court denied defendant’s motion to withdraw his plea. The court then

proceeded to impose the nine-year sentence defendant had agreed to upon his Cruz

waiver.



                                              6
       Defendant filed a notice of appeal specifying the ground that, “Acceptance of [the]

plea was based on incorrect calculation of more credits that Defendant ended up

receiving.” He requested a certificate of probable cause on the ground of “ineffective

assistance of counsel, failure to advise of the correct maximum sentence for charges to

which pleas were entered and incorrect amount of credits I would receive and incorrect

percentage of time which I was led to believe I would serve for the sentence.” The trial

court granted the certificate of probable cause.

                                        ANALYSIS

           I. Defendant Failed to Establish Good Cause to Withdraw His Plea

       Defendant contends that a material provision of his plea bargain was that he would

be granted “two-for-two” custody credits, because, at the time of his plea, he was

expressly awarded 382 days of actual custody credit, and an equal number, 382 days, of

conduct credits. After defendant failed to appear for sentencing, and he was ultimately

returned for sentencing, the trial court awarded him 588 days of actual custody credit

(382 days as calculated on the day of the plea bargain, plus 206 days between February

14, 2011, and the date of sentencing on September 7, 2011), plus 294 total days of

presentence conduct credits. The trial court calculated the conduct credits on the basis of

a six-for-four ratio in relation to the 588 days of actual custody credit (588÷4=147;

147x2=294).

       Defendant complains that the 294 days of conduct credits was even less than the

382 days of conduct credits previously stated in the plea agreement. He argues that he is

due, at a minimum, 88 additional days of conduct credits (382-294=88), if he is to receive

                                             7
what he was actually awarded pursuant to his plea bargain. He further argues that the

plea bargain effectively awarded him two-for-two credits explicitly on all his presentence

conduct credits, and implicitly promised the same rate of conduct credits for any time he

would serve (i.e., state prison custody).

       Under the terms of the law, however, defendant was statutorily ineligible for two-

for-two presentence conduct credits because he had a prior strike conviction. Defendant

contends that, if the trial court is unable to fulfill the terms of the plea bargain awarding

two-for-two conduct credits because such an award violates the applicable statutes, then

the only remedy is to allow him to withdraw his plea. That is, if specific performance of

the bargain cannot be granted, then he must be permitted to withdraw his plea. (In re

Williams (2000) 83 Cal.App.4th 936, 944, 946.)

       The People respond that the presentence conduct credits were not a material part

of the plea bargain and resulted from trial court error that occurred after the plea

agreement had been made. The written plea agreement provided that defendant would

plead guilty to a three-year aggravated term on count 4,2 and that he would admit one

strike prior and three prison term priors. Three one-year terms would be added to

defendant’s prison sentence if he failed to appear at sentencing pursuant to the Cruz

waiver. When defendant completed and signed the change-of-plea agreement, the credits


       2 At the sentencing hearing, the trial court noted that the sentence range for the
pleaded offense was two, three and four years, not 16 months, two years and three years.
The court imposed the agreed-upon sentence of six years, based on the middle term, not
the aggravated term, doubled as a second-strike offense.


                                               8
to be awarded were listed as 382 days of actual custody, 190 days of conduct credit, for a

total of 572 days of credit. At the change-of-plea hearing, however, the following

sequence of events took place:

       First, the court recited the terms of the bargain: Defendant would plead guilty to

count 4, and admit one strike and three prior prison terms. The maximum exposure on

the pleaded charge was nine years. Defendant would be released from custody on a Cruz

waiver, and if he returned at the time of sentencing, he would receive a six-year sentence.

If he did not return on time, he would receive nine years. Defendant acknowledged that

this was the bargain he had agreed to. No mention was made of custody credits.

       Second, the court went over the meaning of the Cruz waiver, and specified the

penalty that defendant would pay if he did not return for sentencing as ordered.

Defendant stated that he understood.

       Third, the trial court reviewed the rights defendant had waived and the

consequences of defendant’s guilty plea to a felony offense. The court also inquired

whether defendant had entered into the agreement freely. Defendant stated that he had.

Again, up to this point, no mention had been made of any custody credits.

       Fourth, defendant pleaded guilty to count 4, and admitted the facts underlying the

offense (possession of computer equipment to create blank checks). Defendant also

admitted the strike prior and the three prison term priors.

       Fifth, the court accepted defendant’s pleas.

       Sixth, the court recited again the terms of the Cruz waiver, and defendant’s release

on his own recognizance. He also took an Arbuckle waiver (People v. Arbuckle (1978)

                                              9
22 Cal.3d 749) so that defendant could be sentenced before a different judge, at a court

that was more convenient for defendant.

       Seventh, the court reviewed the expected sentence that would be imposed when

and if defendant appeared for sentencing on the appointed date: “If [defendant] shows up

as indicated, he will be sentenced as follows: On the 480, he will be sentenced to the

upper term of three years in state prison. Pursuant to the strike allegation, that will be

doubled for a total of six. The 667.5(b) priors one year will be imposed but stricken. The

total term . . . would be six years, and the credits, as of today, are actually wrong. With

the change in the credits, it is 382 plus 382. Okay.” (Italics added.) Obviously, it was

only then that the court crossed out the figures that had been entered on the written plea

form and wrote in the figure “382” for conduct credits, and “764” as the total number of

credits. Up to that point, there had been no mention whatsoever of custody credits or

conduct credits.

       Manifestly, the award of 382 days of presentence conduct credit was never

contemplated as a material part of the plea bargain. Rather, as the People contend here,

that was simply a “gift,” a mistake on the part of the trial court, and a matter that had

never been considered in the negotiation of the plea. When defendant made his bargain,

and signed the papers, the agreement recited an entirely different (and correct) amount of

conduct credits and total credits.

       Defendant counters that the trial court should be bound by the written plea

agreement, which “clearly and explicitly specifies that [defendant] will receive 382 days

of conduct credit.” He argues that the plain language of the written agreement governs,

                                             10
and no further interpretation of the agreement is necessary or permitted. (Citing Buckley

v. Terhune (9th Cir. 2006) 441 F.3d 688, 695-697.) Defendant posits that “nothing on the

face of the agreement itself” shows that it was the court, and not the district attorney, or

defense counsel, or defendant himself who struck out the earlier number and wrote in

“382” as the number of conduct credit days.

       The parol evidence rule will exclude evidence of a prior or contemporaneous

agreement that contradicts the terms of an integrated writing. (Banco Do Brasil, S.A. v.

Latian, Inc. (1991) 234 Cal.App.3d 973, 1000, overruled on another point in Riverisland

Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169,

1179.) “In applying the rule, courts employ a two-step process to determine whether

(1) the writing is an integration and (2) the collateral agreement is consistent with the

written agreement. [Citation.]” (Take Me Home Rescue v. Luri (2012) 208 Cal.App.4th

1342, 1351.) Here, the plea agreement form provided that, “All the promises made to me

are written on this form, or stated in open court.” (Italics added.) The writing alone was

expressly not a wholly integrated statement of the agreement; the agreement was intended

to include other terms made express by oral statements in open court. The agreement

itself contemplates that the record of proceedings in open court will be examined to

determine if any terms have been changed, added, or deleted from the written plea

bargain form. The examination of the record of the hearing belies defendant’s facile

speculation that it was a party other than the court that altered the conduct credit

calculation, and that the change may have preceded defendant’s guilty plea.



                                             11
         The calculation of 382 days of presentence conduct credit was not a bargained for

term of the agreement. It was not a material term contemplated at the time defendant

entered into the plea bargain. Rather, the alteration was a (mistaken) afterthought of the

court.

         Penal Code section 1018 provides, in part: “On application of the defendant at

any time before judgment . . . the court may . . . for a good cause shown, permit the plea

of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be

liberally construed to effect these objects and to promote justice.” The burden of proof

for such a motion lies squarely on the defendant: “The defendant has the burden to show,

by clear and convincing evidence, that there is good cause for withdrawal of his or her

guilty plea.” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.) Further,

“The decision to grant or deny a motion to withdraw a guilty plea is left to the sound

discretion of the trial court. [Citations.] ‘A denial of the motion will not be disturbed on

appeal absent a showing the court has abused its discretion.’ [Citations.] ‘Moreover, a

reviewing court must adopt the trial court’s factual findings if substantial evidence

supports them.’ [Citation.] [¶] To establish good cause to withdraw a guilty plea, the

defendant must show by clear and convincing evidence that he or she was operating

under mistake, ignorance, or any other factor overcoming the exercise of his or her free

judgment, including inadvertence, fraud, or duress. [Citation.] The defendant must also

show prejudice in that he or she would not have accepted the plea bargain had it not been

for the mistake. [Citation.]” (Id. at p. 1416.)



                                             12
       Defendant’s showing here failed on both prongs of the test. Taking the prejudice

claim first, defendant did aver that he would not have pleaded guilty had he known that

he would not receive two-for-two conduct credits, but the trial court was not required to

accept such a self-serving statement at face value. We defer to the trial court’s factual

findings, including its determination that defendant’s claim of prejudice was not credible.

As we have seen, defendant fully entered into the bargain well before anything was said

or done to (mistakenly) award him two-for-two presentence custody credits. In addition,

the bargain defendant received was significantly favorable without an award of two-for-

two credits. In fact, at the change-of-plea hearing, the court remarked on the matter: “I

don’t know how you worked this out, but your maximum exposure was . . . close to 18

years the way I figured it out. Your sentence is one third of that. Typically, when you

are facing that much time, the normal rule of thumb is figure out what the maximum

exposure is and cut it in half, so, in my opinion, what was due to you is nine years in state

prison, so you worked out a disposition for six. That was great. . . . This is a great

disposition for you.” Defendant’s claim—that he would not have pleaded guilty had he

known he would not get two-for-two conduct credits—strains credulity in the face of the

number of charges and the total possible exposure he faced.

       Defendant also failed to show that he was operating under any mistake, ignorance,

or other factor that overcame his free judgment concerning whether to accept the plea.

Again, as determined ante, defendant was never, as part of the plea negotiations,

promised anything with respect to the earning of presentence custody credits. The



                                             13
mistake was the trial court’s, and it took place after defendant had already made his

bargain and pleaded guilty.

       Even if defendant might have entertained the after-the-fact notion that he was to

receive two-for-two presentence custody credits, there is nothing whatever in the record

to support the idea that he had any right or reason to believe or expect to receive an

equally favorable credit ratio against his prison term. Although defendant claimed that

his attorney told him he would only have to serve half his sentence, we note the complete

absence from defendant’s moving papers of any declaration from former trial counsel

concerning the plea negotiations or any promises made to defendant.

       To the extent defendant argued that he was coerced into pleading guilty because

he had been in custody for a year and had not been able to see or hold his new child, the

trial court clearly found the claim not credible. As the prosecutor pointed out at the

hearing motion, “the argument that he was afraid that he would never see his son . . . is

somewhat specious because everybody knows, especially [defendant], having been to

prison before that, there was no problem with him seeing his children in a prison scenario

at the visiting center, or even here at the jail he would be able to see his son.”

       The prosecutor further represented to the court that, contrary to defendant’s

representations in his declaration that he was innocent of the charges, “defendant had

requested to speak to me directly,” during plea negotiations, because, “I’ve had

considerable experience and knowledge of [defendant], having prosecuted him since

2003 on numerous cases . . . .” When defendant spoke directly to the prosecutor, “the

topic of the conversation wasn’t that he wasn’t being properly represented or that he was

                                              14
innocent or anything like that, [it] was that . . . he wanted . . . some kind of probation

deal.”

         None of the grounds that defendant presented to withdraw his plea were credible.

Defendant did not bargain for two-for-two conduct credits as part of his plea agreement;

the mistaken award of presentence conduct credits was not a material term of the plea

bargain. Defendant was not eligible for two-for-two credits, for either presentence

custody or prison custody. It is ludicrous to believe that defendant regarded the issue of

presentence credits as a critical term, without the promise of which he would not have

pleaded guilty. As the trial court pointed out, the bargain he did receive was

extraordinarily favorable under the circumstances, and he had fully entered into that

bargain and pleaded guilty before he received the windfall of extra presentence conduct

credits.

         We are mindful also that defendant failed to appear for sentencing, and did not

return to California for nearly a year thereafter. After avoiding his rightful sentence for

over a year, and now that he must suffer increased punishment as a consequence of

failing to abide by his Cruz waiver, defendant’s claim that the promise of custody credits

was essential to the bargain rings particularly hollow. This is a classic case of buyer’s

remorse, now that defendant subjected himself to a nine-year rather than a six-year prison

term. We are not required to permit defendant to trifle with the courts in such a fashion.

The trial court did not abuse its discretion in denying defendant’s motion to withdraw his

guilty plea.



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                                    DISPOSITION

      The trial court properly denied defendant’s motion to withdraw his guilty plea.

The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                             McKINSTER
                                                                                        J.


We concur:


HOLLENHORST
          Acting P. J.


CODRINGTON
                         J.




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