Filed 2/10/15 P. v. Segura CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                           F066938
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR037255)
                   v.

ANTONIO HIGAREDA SEGURA,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
         Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Poochigian, J. and Peña, J.
       Defendant Antonio Higareda Segura entered into a plea agreement with a Cruz
waiver,1 which the trial court later determined he violated by illegally reentering the
country. On appeal, he contends (1) the trial court erred by failing to make an explicit
finding that his violation of the Cruz waiver was willful and (2) the trial court’s finding
that he violated the Cruz waiver was not supported by substantial evidence. We affirm.
                                     BACKGROUND
       On July 4, 2009, an officer saw defendant driving a vehicle without a windshield.
The officer followed defendant with lights activated. Defendant fled and a high-speed
chase ensued. Defendant eventually stopped and ran away. When the officer caught up
to him, defendant used force and violence to resist arrest, injuring the officer.
       Defendant was charged with various crimes and initially pled not guilty. On
February 19, 2010, he informed the trial court he wished to change his plea to guilty. The
court explained that according to the plea agreement, he would be released pending
sentencing and would be deported by United States Immigration and Customs
Enforcement (ICE). The agreement was conditioned on his obeying all laws, including
laws that forbade him from illegally returning to the United States after his deportation.
If he violated the terms of the Cruz waiver and illegally returned to the United States, the
stipulated term of six years four months would be imposed. If ICE failed to deport him,
he would be required to appear in the probation department within 24 hours of his
release. Under these terms, defendant pled guilty to felony evading an officer (Veh.
Code, § 2800.2, subd. (a)), attempting to deter an executive officer by threats (Pen. Code,
§ 69),2 and inflicting injury on a peace officer (§ 243, subd. (c)(2)), and he admitted
serving two prior prison terms (§ 667.5, subd. (b)). On his plea agreement form, he wrote


1       As we explain below, a Cruz waiver allows a defendant to waive his right to be
sentenced pursuant to his plea agreement. (People v. Cruz (1988) 44 Cal.3d 1247, 1254,
fn. 5 (Cruz); People v. Masloski (2001) 25 Cal.4th 1212, 1219-1224 (Masloski).)
2      All statutory references are to the Penal Code unless otherwise noted.


                                              2
that the plea was with a Cruz waiver and deportation. His release papers, which he also
signed, stated that his release was conditioned on his obeying all laws, including that he
not illegally reenter the United States.
        The court set sentencing for March 22, 2010, and released him to ICE for
deportation.
        On March 22, 2010, defendant did not appear for sentencing and the court issued a
bench warrant.
        Two years later, on May 19, 2012, defendant was booked into the Madera County
jail.
        On August 27, 2012, the court held a hearing to determine whether defendant
violated the Cruz waiver.

               “THE COURT: And he is here for a hearing with regard to whether
        he violated the terms of a Cruz waiver. And it is my understanding the
        terms of the Cruz waiver—that he was to make and keep appointments with
        the probation officer within 24 hours of release, if not deported by [ICE],
        and the matter was referred to Probation. He failed to appear at the
        probation department for purposes of scheduling an appointment to assist in
        the preparation of their report.

               “And according to the records of Madera County Department of
        Corrections, February 24 he was turned over to the custody of [ICE]. And
        there was no further contact with the defendant or any agent on his behalf
        to explain or excuse why he failed to appear. And then apparently
        [defendant] returned to the U.S., as he is here now. [¶] That is my
        understanding of the procedural posture of the case. [¶] … [¶]

                “[DEFENSE COUNSEL]: … It’s my understanding that that was
        the agreement, and he is back here in the U.S. [¶] However, the only issue
        that I want to raise is that I believe he did 26 months in federal custody for
        illegally returning to the U.S. The only—I’ve looked into the issue in terms
        of if that credit applies. I don’t believe it can at all. However, I do believe
        that the Court may have discretion to look at that in terms of mitigation of
        the stipulated sentence. And for that I would like a week or two, maybe, if
        it’s okay with [defendant], two weeks for me to see if there’s some
        authority for that. If not, then there will be nothing else. [¶] … [¶]



                                              3
             “THE COURT: All right. So if we get the position of [defense
      counsel] in two weeks, and I’ll make the same offer to the People. I’ll
      allow the People to file anything if you want to, [prosecutor], you’re not
      required to. But if you want to provide some information or authority—
      [¶] … [¶]

             “[PROSECUTOR]: And I’m sorry, is the Court going to find the
      violation right now and simply put over the sentencing so that we don’t
      have to come back to that? [¶] … [¶]

              “THE COURT: All right. I will find that [defendant] has violated
      the terms of the Cruz Waiver and the agreement in that he has returned to
      the U.S. and failed to report to Probation as require[d] for the preparation of
      its report. [¶] And apparently the terms of the agreement were that it
      would be a stipulated term of six years, four months, and it is with regard to
      whatever the judgment may be or the discretion of the Court in that regard.
      That is the authority which the Court is seeking from counsel. So I’ll be
      looking for that.

              “[DEFENSE COUNSEL]: Your Honor, only one comment. I don’t
      think it’s going to matter, but technically he didn’t violate the reporting
      requirement. Because I think it was only if he was not deported. And he
      was deported. But he did violate in terms of illegally returning.

             “THE COURT: Comment by the People?

            “[PROSECUTOR]: As [defense counsel] says, I don’t think it really
      makes a difference. So submitted.

             “THE COURT: All right, thank you very much. [¶] I believe
      [defense counsel] is correct, that he was in custody while he was here at the
      time when he might have otherwise reported. And then he was taken by
      Customs authorities, [ICE] authorities, and thereafter, returned to the U.S.
      [¶] So it will only be for the basis that he returned to the U.S. that he is in
      violation of the Cruz agreement or waiver.”
      On September 14, 2012, defense counsel asked the court to continue sentencing.
The following occurred:

             “[DEFENSE COUNSEL:] We have documents for [defendant]
      from the Department of Justice, from Madera County Department of
      Corrections, to indicate that he was in federal custody in either South
      Carolina or Georgia or both. [¶] I spoke to Mr. Ginder in the district
      attorney’s office, who indicated they picked him up from Atlanta, Georgia,
      and brought him here. So the question I have still is whether he ever left

                                             4
       the country. [¶] … [¶] … And ultimately if we find out that he wasn’t out
       of the country, then we won’t be able to request any reconsideration.”
       On October 4, 2012, defense counsel asked for another continuance. The
following occurred:

              “[PROSECUTOR]: If we’re going to continue it out again, I would
       want to inquire as to what information is being sought as far as how
       necessary it is.

               “[DEFENSE COUNSEL]: Well, the information is basically, he has
       always said from the beginning that in his federal case in San Diego that the
       probation department in Madera got involved, and because of their
       involvement his time was increased. Now, the issue is, if that is true, does
       that in any way affect his six years here in Madera?

              “THE COURT: Basically getting credit for whatever time that—

              “[DEFENSE COUNSEL]: Yeah.

              “THE COURT: —he was in because it related to the Madera
       action?

              “[DEFENSE COUNSEL]: Yes.

              “THE COURT: I understand the theory.”
       On November 1, 2012, defense counsel reported that he had no information to
support a request for reconsideration. The court stated it would refer the matter to the
probation department for computation of time credits.
       On November 29, 2012, the probation officer prepared a report stating that on
February 19, 2010, defendant pled guilty in this case, was released on his own
recognizance, and turned over to ICE. He failed to appear for sentencing on March 22,
2010, and a bench warrant was issued. He was subsequently sentenced to 27 months in
federal prison. On February 28, 2012, he was released on supervised release for three
years. On April 26, 2012, he was arrested in Georgia on the bench warrant in this case.
On May 18, 2012, he was received in Madera. On the same date, an ICE hold was placed
on him.



                                             5
       The probation officer noted: “The defendant said he has resided in Madera
County since he came to the United States in 1992, except for the period of time he was
deported in 2010 and placed in Federal State Prison in Georgia and then returned to
Madera County Department of Corrections.”
       In the list of defendant’s criminal history, the probation officer noted that on
November 19, 2010, defendant was convicted and sentenced to 27 months in federal
prison with three years of supervised release. On February 28, 2012, he was placed on
supervised release.
       On February 21, 2013, in anticipation of the sentencing hearing, defense counsel
filed a sentencing statement in mitigation, arguing that defendant’s sentence should run
concurrently with the federal case in which he had served almost two years. Attached as
Exhibit A was a form AO 245B, entitled “Judgment in a Criminal Case,” filed in federal
court on August 16, 2010, and signed by a federal judge, documenting the judgment in
defendant’s case and stating that defendant had pled guilty to a violation of title 8 United
States Code section 1326 (reentry of a removed alien) as a deported alien found in the
United States.3
       On February 22, 2013, at the sentencing hearing, counsel argued whether
defendant should receive credit for time served in federal prison, as follows:

             “[DEFENSE COUNSEL]: It is the defense view that [defendant]
       should receive credit for the two years straight that he did in federal

3      Title 8 United States Code section 1326 provides in part: “[A]ny alien who—[¶]
(1) has been denied admission, excluded, deported, or removed or has departed the
United States while an order of exclusion, deportation, or removal is outstanding, and
thereafter [¶] (2) enters, attempts to enter, or is at any time found in, the United States,
unless (A) prior to his reembarkation at a place outside the United States or his
application for admission from foreign contiguous territory, the Attorney General has
expressly consented to such alien’s reapplying for admission; or (B) with respect to an
alien previously denied admission and removed, unless such alien shall establish that he
was not required to obtain such advance consent under this or any prior Act, shall be
fined under title 18, … or imprisoned not more than 2 years or both.”


                                              6
custody. And up until today I’ve not had a case in my possession that is
more deserving of a concurrent sentence. And the reason why is that
defendant’s sentence was bumped up from one year to six years, four
months because he violated the Court’s advisement and warning that if he
returned to the United States, he would be facing the six years, four months.
And it is exactly that same act of trying to cross the border which activated
the federal prosecution for illegal reentry.

        “Now, the—my calculation of time credits is much greater, because
it encompasses 365 days, plus 361 days straight. I believe that [defendant]
is very close to timing out but I do not think he’s timed out. I have my own
calculation of time credits. But I think that this is a situation where if we
don’t give [defendant] credit for the time that he did in federal custody for
the illegal reentry, we’re in essence punishing him twice for the same
conduct.

        “The Court told him, ‘If you return to the United States you’re going
to get up to six years, four months.’ That’s what he did. He returned to the
United States. [¶] He did not even enter the United States. He’s stopped at
the border, taken into custody, prosecuted in San Diego, pled to 27 months.
Did four days short of two years straight.

       “So with those comments, if the Court agrees with me, I have time
credits. And I just don’t think it would be appropriate to punish the
defendant twice who’s trying to cross the border. Thank you.

       “THE COURT: Thank you, [defense counsel].

       “Comment, [prosecutor]?

        “[PROSECUTOR]: I disagree with Counsel’s legal analysis. We
aren’t punishing him twice for the same conduct. Punishing him federally
for entering the United States illegally is a federal crime, and we are not
punishing him for that. He has already been punished. He is just getting
the sentence that he was told he would get, and he violated his Cruz
Waiver, the Court has so found on August 27th of 2012, and [defendant]
should not benefit from the fact that he happened to be caught by the
federal authorities and had to spend some time in federal prison. It’s
unfortunate, but it happened. [¶] And I would submit that he be sentenced
to the six years, four months previously agreed to, Your Honor. Thank
you.

       “THE COURT: Any response, [defense counsel]?

      “[DEFENSE COUNSEL]: Just shortly. If this case were the other
way around, where [defendant] first got the six years, four months here, and

                                      7
       then as they do many times when you’re sent to prison, they pick them up
       from prison on their release date, there would have been a concurrent time
       issue there too. [¶] If the defendant had done anything, anything at all,
       other than try to cross the border, I would agree with [the prosecutor].…
       But I just don’t—I think it violates due process, and the Court’s own sense
       of how much punishment he deserves. [¶] And so I hope the Court will
       agree with me. If it does, then it is my opinion that he has 1,091 actual
       days.

              “THE COURT: All right, thank you, [defense counsel].

              “As mentioned, I have read and considered the report of the
       probation officer. That was filed November 30, 2012. I have the
       supplemental information from Probation on the time credits filed
       January 23, 2013, and then the sentencing statement in mitigation filed
       February 21, 2013. I’ve read and considered all of those.

              “I appreciate the comments of both the People and the defense in
       this matter. It appears to me that it would not be punishing [defendant]
       twice. I would view this analogous to a violation of probation matter. In a
       probation—if the defendant agrees to abide by specific terms, such as obey
       all laws, if he or she violates the probationary terms, then the Court may
       impose judgment based upon that violation. That does not mean that the
       Court would be in any way prevented from also acting on a prosecution for
       the law which was violated, which also constituted the violation of
       probation. So I don’t see this in the same vein. [¶] … [¶] So I will not be
       ordering time credits based upon the time he was in federal custody.”
       The court continued sentencing again to allow the probation department to further
consider time credits.
       On March 5, 2013, the probation officer prepared a supplemental report, which
included the following: “There is no dispute that the defendant illegally re-entered the
United States illegally [sic]. He was arrested, prosecuted and convicted in Federal Court
for that offense, and served a term of incarceration for the Federal offense.”


       On March 18, 2013, the court sentenced defendant to the stipulated term of
six years four months and awarded time credits.




                                             8
                                       DISCUSSION
       A defendant who pleads guilty or no contest pursuant to a plea agreement
(§ 1192.5) may waive the right to be sentenced pursuant to his plea agreement by a so-
called Cruz waiver (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; Masloski, supra, 25 Cal.4th
at pp. 1219-1224). The defendant may expressly waive his rights under section 1192.5, if
he has been fully advised of those rights, the waiver is knowing and intelligent, and it is
obtained at the time of the trial court’s initial acceptance of the plea. (Cruz, supra, at
p. 1254, fn. 5.) Thus, the defendant can expressly agree to a greater sentence as a
sanction for engaging in certain behavior as long as his waiver is part of the plea bargain
itself. (Masloski, supra, at pp. 1221-1222.) If he willfully engages in that behavior, he
violates the Cruz waiver. (Cruz, supra, 44 Cal.3d at p. 1254, fn.5.) “Willfully” means he
knows what he is doing and intends to do it. (§ 7, subd. 1; People v. Atkins (2001) 25
Cal.4th 76, 85-86.)
       “The question whether defendant violated the conditions of his release is one of
fact, which we review under the substantial evidence test. ‘When a trial court’s factual
determination is attacked on the ground that there is no substantial evidence to sustain it,
the power of an appellate court begins and ends with the determination as to whether, on
the entire record, there is substantial evidence, contradicted or uncontradicted, which will
support the determination .…’ [Citation.] ‘Deferential review is particularly necessary
when, as here, the factual determination depends in part on judging a witness’s
credibility,’ and we must uphold such a determination if it is supported by substantial
evidence. [Citation.] ‘We do not reweigh or reinterpret the evidence; rather, we
determine whether there is sufficient evidence to support the inference drawn by the trier
of fact.’” (People v. Rabanales (2008) 168 Cal.App.4th 494, 509.)
       Here, defendant’s plea agreement included a Cruz waiver by which he agreed that
he would receive a sentence of six years four months if, once released, he failed to obey
all laws, including if he illegally reentered the country. He argues that the trial court


                                              9
failed to explicitly find that his violation of the Cruz waiver was willful, and that such a
finding would not be supported by the record. He says the record “does not establish that
[he] ever re-entered the country following his plea, because the record does not establish
that he ever left the country.” He adds: “Certainly it cannot be said on this record that an
implied finding of willfulness is supported by substantial evidence.”
       We disagree entirely. The record amply supports the conclusion that the trial court
impliedly found defendant willfully and illegally reentered the country, and
overwhelming evidence supports such a finding. At the August 27, 2012 hearing to
determine whether defendant violated the Cruz waiver, defense counsel—in defendant’s
presence—stated that defendant was deported and violated the Cruz waiver “in terms of
illegally returning.” The court then summarized that defendant “was taken by Customs
authorities, [ICE] authorities, and thereafter, returned to the U.S.” In the face of
counsel’s concession and the court’s statement, defendant did not deny illegally
reentering the country (nor did he offer a scenario whereby he unwillingly reentered the
country). “It is, of course, well established that the defendant is bound by the stipulation
or open admission of his counsel and cannot mislead the court and jury by seeming to
take a position on issues and then disputing or repudiating the same on appeal (People v.
Peters (1950) 96 Cal.App.2d 671, 677[4]).” (People v. Pijal (1973) 33 Cal.App.3d 682,


4        In People v. Peters, supra, 96 Cal.App.2d 671, the court explained: “It is
elementary that in a homicide case the fact that the deceased met his death through the act
or agency of the defendant must be proved. It may, of course, be proved by
circumstantial evidence. [Citation.] Obviously, here, the cause of death was not proved
by evidence. However, the cause of death is a fact, which, like every other fact, need not
be proved, even in a criminal case, if admitted or conceded by defendant. While there
was no direct proof of the cause of death, the conduct and attitude of defendant at the
trial, as disclosed by the record, constituted at least an indirect concession of the fact.”
(Id. at p. 675.) “In a criminal case a defendant is not called upon to make explanation, to
deny issues expressly (his plea of not guilty does that for him), nor is he required to point
out to the prosecution its failure to make a case against him or to prove any link in the
required chain of guilt. On the other hand, he cannot mislead the court and jury by
seeming to take a position as to the issues in the case and then on appeal attempt to

                                             10
697.) Defendant’s concession provided substantial evidence that he was deported and
then reentered the country illegally, thereby willfully violating the Cruz waiver. Any
error by the court in not explicitly stating its finding that defendant willfully violated the
Cruz waiver was harmless.
       We also note that after this hearing, other evidence further supported defendant’s
concession. His federal conviction was for a violation of title 8 United States Code
section 1326, which punishes illegal reentry into the country following deportation.
Defendant himself provided proof of this conviction in connection with his request for a
mitigated sentence. And, according to the probation officer’s report, defendant told the
probation officer that he was deported in 2010, and then placed in federal prison. The
report noted there was “no dispute that the defendant illegally re-entered the United
States.”
       Defendant failed to dispute this evidence or his counsel’s concessions throughout
these proceedings. Consequently, he cannot now dispute the issue on appeal.
Furthermore, after reviewing the entire record, we are confident no due process violation
occurred.
                                       DISPOSITION
       The judgment is affirmed.




repudiate that position. A reading of the proceedings at the trial, including defendant’s
statement at the opening of his case and his argument to the jury at the end of the case,
clearly shows that at no time was he questioning either that the knife wound caused
Cole’s death, or that that fact had not been established or was an issue to be resolved by
the jury. It also shows that defendant was conceding the cause of death.” (Id. at p. 676.)


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