Filed 7/26/13 P. v. Johnson CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135494
v.
RUBEN MICHELLE JOHNSON,                                              (Solano County
                                                                     Super. Ct. No. VCR209448)
         Defendant and Appellant.


         Defendant Ruben Michelle Johnson pleaded no contest to a charge of false
imprisonment under a plea bargain promising probation, but he failed to appear for
sentencing. When accepting his plea, the trial court had not addressed the consequences
to defendant under the plea bargain if he did not appear for sentencing. Nor had the court
mentioned its power under Penal Code1 section 1192.5 to disapprove the plea bargain or
defendant‘s right to withdraw his plea in the event of disapproval. The written waiver of
rights executed by defendant in connection with the plea bargain stated only that the
―promises‖ made under the plea bargain would not be ―binding‖ if he failed to appear.
         After defendant‘s arrest on a bench warrant, the trial court imposed a three-year
jail sentence, refusing to grant probation as promised by the plea bargain or permit
defendant to withdraw his plea. Defendant contends the language in the written waiver
form did not constitute an effective waiver of his right under section 1192.5 to withdraw
his plea if the trial court disapproved the plea bargain. We agree and reverse.


         1
             All statutory references are to the Penal Code.
                                   I. BACKGROUND
       Defendant was charged in a complaint, filed November 18, 2010, with aggravated
assault (§ 245, subd. (a)(1)), false imprisonment (§ 236), giving false information to a
police officer (§ 148.9, subd. (a)), battery (§ 243, subd. (e)(1)), and vandalism (§ 594,
subd. (a)). The complaint was later amended to allege the acts were committed while
defendant was released on bail. (§ 12022.1.)
       Under a plea bargain, defendant pleaded no contest to the charge of false
imprisonment.2 The terms of the plea bargain were reflected in a preprinted ―Waiver of
Constitutional Rights and Declaration in Support of Defendant‘s Motion to Change Plea‖
(waiver form), executed by defendant on December 6, 2010.3 Paragraph No. 7 of the
waiver form stated, ―The maximum punishment which the court may impose based upon
this plea is 3 yr,‖ and paragraph No. 9 said, ―Whether or not I will get probation is to be
determined solely by the Court. I understand the sentence I receive is solely within the
discretion of the Court.‖ Yet paragraph No. 10 stated that, as an inducement to the plea,
defendant ―ha[d] been promised‖ a sentence of three years‘ formal probation, with a
maximum of one year in jail. In addition to an express waiver of several constitutional
rights, the waiver form contained the following statement in bold type, located
immediately below the ―promised sentence‖ provisions: ―I UNDERSTAND THE
ABOVE PROMISES ARE NOT BINDING IF I FAIL TO APPEAR AT ANY
SUBSEQUENT HEARING, COMMIT ANY CRIME PRIOR TO MY JUDGMENT
AND SENTENCING, VIOLATE ANY TERMS OF MY RELEASE, OR IF
PLACED ON PROBATION, VIOLATE ANY PROBATION TERM.‖
       At the plea hearing, the trial court accepted defendant‘s no contest plea to the false
imprisonment charge and granted a prosecution motion to dismiss the remaining counts.
       2
         Because the events underlying defendant‘s crime, an alleged domestic assault,
are irrelevant to his contentions on appeal, we do not discuss them.
       3
         The waiver form, designated ―Form #545,‖ appears to be an official form of the
Solano County Superior Court, adopted in 2005. Its text differs substantially from the
text of the current version of the criminal plea form approved by the Judicial Council,
Judicial Council Forms, form CR-101.


                                              2
The court told defendant that, under the terms of the plea bargain, he could be sentenced
to a maximum prison term of three years. Explaining, the court said: ―If you comply
with your probation terms, which will include a jail term of up to 365 days, you won‘t
have to go to prison. But if you fail to comply, then the Court has that power [to impose
the prison term].‖ The trial court obtained defendant‘s acknowledgment that he signed
and understood the waiver form, but it did not otherwise advise defendant with respect to
any particular rights, other than the meaning and significance of a Harvey waiver. (See
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).)
       Defendant failed to appear for sentencing. His bail was revoked, and a bench
warrant was issued. Ten months after entering his plea, defendant was arrested on the
warrant.
       In a sentencing memorandum filed after his arrest, defendant argued the trial court
could not impose a sentence greater than the three years of probation promised in the
waiver form, despite his failure to appear at the original sentencing hearing. In the event
the court intended to impose a greater sentence, defendant sought leave to withdraw his
plea on the authority of section 1192.5 and People v. Cruz (1988) 44 Cal.3d 1247
(Cruz).4
       The trial court denied the motion, concluding the reference to a maximum three-
year sentence in the waiver form was intended to authorize the imposition of a greater
sentence in the event defendant did not appear for sentencing. The court sentenced
defendant to a three-year term in county jail, justifying the sentence in part by reference
to defendant‘s original failure to appear at sentencing.
       Defendant obtained a certificate of probable cause permitting appeal of his
voluntary plea.




       4
        Defendant also filed an unsuccessful motion to withdraw his plea on the basis of
newly discovered evidence. Defendant raises the denial of this motion as a claim on
appeal, but we find it unnecessary to reach this claim.


                                              3
                                    II. DISCUSSION
       Defendant contends the trial court was required, under section 1192.5 and Cruz, to
allow him to withdraw his plea before imposing a sentence greater than the sentence
promised in the waiver form.
       ―[P]lea agreements are a recognized procedure under our judicial system
[citations] and a desirable and essential component of the administration of justice.‖
(People v. Masloski (2001) 25 Cal.4th 1212, 1216 (Masloski).) Section 1192.5
constitutes the Legislature‘s recognition of plea bargaining. (People v. Vargas (1990)
223 Cal.App.3d 1107, 1111 (Vargas).) Under section 1192.5, a trial court, after
accepting the terms of a plea bargain, cannot sentence the defendant to a punishment
more severe than the punishment specified in the bargain. Further, section 1192.5
requires the court, upon accepting a bargained plea, to inform the defendant that it may
withdraw its approval of the bargain prior to imposing sentence and, in that case, must
give the defendant the opportunity to withdraw his or her plea.
       In Cruz, the Supreme Court considered the scope of a defendant‘s right to
withdraw under section 1192.5. The defendant in Cruz pleaded guilty under a plea
bargain promising probation. After the defendant failed to appear at the scheduled
sentencing hearing, the trial court declined to abide by the plea bargain, presumably
because the defendant‘s failure to appear constituted a breach of the bargain, and imposed
a prison term without providing the defendant an opportunity to withdraw his plea.
(Cruz, supra, 44 Cal.3d at p. 1249.) The Supreme Court held that the defendant‘s failure
to appear did not constitute a breach of the plea bargain but, rather, was a separate
chargeable offense. Accordingly, the trial court‘s sentence effectively imposed a
punishment for this offense without providing due process. (Id. at p. 1253.) Under
section 1192.5, the court held, the defendant should have been permitted to withdraw his
plea if the trial court intended to impose a greater punishment than that permitted by the
plea bargain. (Cruz, at pp. 1253–1254.) In a footnote, the court noted that the right to
withdraw a plea under section 1192.5 is subject to waiver: ―We do not mean to imply by
this holding that a defendant fully advised of his or her rights under section 1192.5 may


                                             4
not expressly waive those rights, such that if the defendant willfully fails to appear for
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.‖ (Cruz, at p. 1254, fn. 5.)
       Footnote 5 has resulted in the so-called ―Cruz waiver.‖ (Masloski, supra,
25 Cal.4th at p. 1215.) The earliest post-Cruz decision, Vargas, held that a where a plea
bargain contains a provision expressly establishing a greater punishment in the event the
defendant fails to appear for sentencing and the record demonstrates unambiguously the
defendant‘s understanding of this term, the defendant can be sentenced to the greater
specified sentence without being permitted to withdraw his or her plea. (Vargas, supra,
223 Cal.App.3d at p. 1112.) In these circumstances, the Vargas court reasoned,
imposition of the greater sentence does not require a disapproval of the plea bargain,
since the greater sentence is part of the bargain itself. (Id. at p. 1113.) A subsequent
decision, People v. Jensen (1992) 4 Cal.App.4th 978, clarified that, to comply with
section 1192.5, the greater sentence must be a part of the bargain agreed to by the
defendant and the prosecution, rather than a term grafted onto the agreement by the trial
court when accepting the plea. (Jensen, at pp. 981–983.)
       In Masloski, the Supreme Court effectively ratified Vargas, holding that a valid
Cruz waiver occurred when the plea bargain contained a provision characterized in the
following manner by the trial court to the defendant in accepting the plea: ― ‗What a
Cruz waiver is, I make sure that you show up on the date of sentencing. What I want is
your permission that we enter into a contract. [¶] What this means is that you show up on
time and I will follow the plea bargain. If you are late, or heaven forbid, you don‘t show
up at all, then I want your permission to treat this as an open plea which means I am not
bound by the [sentence in the plea agreement], that I can give you as much as six years in
state prison if the facts warrant it.‖ (Masloski, supra, 25 Cal.4th at p. 1215.) The court
accordingly affirmed the trial court‘s imposition, after the defendant did not appear on the



                                              5
scheduled date for sentencing, of a sentence greater than that stated in the plea bargain
without allowing the defendant to withdraw her plea. (Id. at pp. 1222–1224.)
       There can be little doubt that, in the absence of a valid Cruz waiver, the trial
court‘s imposition of a three-year jail sentence violated section 1192.5. There is no
dispute defendant‘s plea bargain called for three years‘ probation and no more than a year
in jail. Because a three-year jail sentence is a greater punishment than probation, the trial
court could not, consistent with section 1192.5, impose that sentence without first
permitting defendant to withdraw his plea.
       Nor does this case fit within Vargas. No provision in the waiver form expressly
authorized the trial court to impose a greater sentence if defendant failed to appear for
sentencing. Granted, one provision of the waiver form stated that the court could impose
a maximum sentence of three years and a second provision stated, ―the above promises
[regarding a sentence of probation] are not binding if I fail to appear at any subsequent
hearing,‖ but no language in the waiver form tied these two provisions together. (Bold,
underscoring and capitalization omitted.)
       The Attorney General argues the latter provision, which stated in full, ―I
understand the above promises are not binding if I fail to appear at any subsequent
hearing, commit any crime prior to my judgment and sentencing, violate any terms of my
release, or if placed on probation, violate any probation term‖ (bold, underscoring and
capitalization omitted), constituted an adequate waiver of defendant‘s section 1192.5
rights under footnote 5 of Cruz. To satisfy Cruz, any waiver of section 1192.5 rights
must have been ―knowing and intelligent.‖ (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; see
People v. Collins (2001) 26 Cal.4th 297, 308.) To meet this standard, the waiver was
required to be ―knowing in the sense that it was ‗made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon
it.‘ ‖ (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219.) The knowing nature of
the waiver must be determined from the totality of circumstances. (People v. Davis
(2009) 46 Cal.4th 539, 586.) ― ‗On appeal, we independently examine the entire record



                                              6
to determine whether the defendant knowingly and intelligently waived‘ ‖ his or her
rights. (People v. Elliott (2012) 53 Cal.4th 535, 592.)
       For two reasons, we conclude the quoted language, in the greater context of the
waiver form and the plea hearing, does not meet the ―knowing and intelligent‖ standard.
First, we find the language of the waiver form itself insufficiently clear to permit a
conclusion defendant was fully aware of ― ‗both the nature of the right being abandoned
and the consequences of the decision to abandon it.‘ ‖ (People v. Sauceda-Contreras,
supra, 55 Cal.4th at p. 219.) Even aside from the quoted language, the waiver form
suffered from an inherent ambiguity caused by its mutually inconsistent provisions. As
noted, one provision stated that ―the sentence I receive is solely within the discretion of
the Court,‖ while another paragraph contained a promise of probation. Further, under
section 1192.5, that promise would have been binding on the court had it accepted the
plea bargain. In other words, despite the express statement to the contrary in the waiver
form, the sentence defendant was to receive was not ―solely within the discretion of the
Court.‖ Rather, the court was bound by the promised sentence and could not impose any
other sentence without first permitting defendant to withdraw his plea. Because there
was no qualification of the paragraph vesting absolute sentencing discretion in the court
and no mention of defendant‘s ostensible rights under section 1192.5, the waiver form
was inherently inconsistent and, frankly, confusing to a person unschooled in criminal
practice and procedure.
       Particularly viewed in that light, the statement in the subsequent warning that ―the
above promises are not binding‖ if defendant later failed to appear is incurably
ambiguous. Although the warning states the promises are not binding, it does not specify
the consequences to follow from a finding that the promises are no longer binding. The
statement could mean what the Attorney General argues: that a greater sentence than the
promised sentence could be imposed if defendant failed to appear. On the other hand, a
person familiar with section 1192.5 could assume the statement simply reflects the rights
guaranteed by that statute. In that scenario, the trial court could disapprove the bargain if
defendant failed to appear and impose a greater sentence than the promised one, but only


                                              7
after complying with section 1192.5 by permitting defendant to withdraw his plea.
Because both interpretations are plausible, we have no basis for assuming defendant
understood the waiver form to mean he was waiving his rights under section 1192.5. The
difficulty in finding a knowing waiver is compounded by the failure of the waiver form to
mention the warnings required of the trial court by section 1192.5 regarding the
nonbinding nature of the plea bargain on the trial court and the consequences flowing
from the court‘s disapproval of the bargain.5
       The parallel language in the current version of the plea form approved by the
Judicial Council, paragraph No. 10.a. of Judicial Council Forms, form CR-101, provides
an example of an unambiguous Cruz waiver. That paragraph states, ―I agree that if I fail
to appear on the date set for surrender or sentencing without a legal excuse, my plea will
become an ‗open plea‘ to the court, I will not be allowed to withdraw my plea, and I may
be sentenced up to the maximum allowed by law.‖ This provision clearly states the
nature of the right abandoned, the opportunity to withdraw the plea, and the
consequences of the decision to abandon it, the potential imposition of the maximum
sentence permitted by law. In contrast, the language contained in the waiver form merely
states that the ―above promises‖ are not ―binding,‖ without mentioning the possibility of
a withdrawal of the plea or explaining what consequences will flow once the promises are
no longer binding.6 (See also People v. Rabanales (2008) 168 Cal.App.4th 494, 503–505
[quoting alternative waiver form language creating a Cruz waiver].)
       Even if the waiver form had been clearer, the trial court‘s comments at sentencing
precluded the finding of a knowing waiver of Cruz rights. As noted above, the waiver


       5
        Because we find the language of the waiver form inadequate to constitute a Cruz
waiver, we need not address defendant‘s further argument that a Cruz waiver must be
accepted by the trial court orally, rather than contained in a written disclosure form. We
also decline defendant‘s invitation to set aside the trial court‘s disapproval of the plea
bargain, finding no abuse of the court‘s discretion.
       6
         In light of the fundamentally ambiguous nature of the waiver form, the superior
court should consider substantially revising the form or adopting use of the parallel
Judicial Council form, which does not appear to suffer from the same deficiencies.


                                                8
form is ambiguous with respect to the circumstances under which the trial court can
impose a sentence other than the promised sentence. Although the trial court made no
mention of the disclosures required by section 1192.5 when accepting defendant‘s plea, it
did purport to explain the circumstances under which a sentence greater than the
promised sentence would occur. The trial court told defendant the maximum sentence
could be imposed if he violated the terms of his probation. No mention was made by the
trial court of the other circumstances mentioned in the waiver form warning—the failure
to appear at a subsequent hearing, the commission of a crime prior to sentencing, and the
violation of a term of release. Defendant would therefore have been justified in
concluding that, whatever the consequences of those acts, they would not include
imposition of the maximum term permitted under the waiver form.
                                   III. DISPOSITION
       The judgment of conviction is reversed with directions to the trial court to set
aside defendant‘s guilty plea, reinstate the original charges, and conduct such further
proceedings as may be appropriate.




                                                 _________________________
                                                 Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




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