Filed 6/19/14 P. v. Ruiz CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064307

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD236979)

ALEX RUIZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Eugenia

Eyherabide, Judge. Affirmed.



         Joshua H. Schraer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, A. Natasha Cortina, Kristen Kinnaird Chenelia, Deputy Attorneys

General for Plaintiff and Respondent.
       Appellant Alex Ruiz contends the trial court erred when it sentenced him to eight

years in prison—instead of seven years as agreed upon earlier—after he failed to appear

at his sentencing hearing, thus violating his negotiated plea agreement, which included a

waiver of certain rights under People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). Ruiz

contends that notwithstanding his violation of his Cruz waiver, he should have been

sentenced to at most seven years eight months because the Legislature has specified a

maximum term of eight months for failure to appear. Claiming the court's sentence was

unauthorized by law, he requests that we reduce his sentence by four months. We affirm

the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In December 2011, the People charged Alex Ruiz with conspiracy to commit

robbery (Pen. Code,1 § 182, subd. (a)(1); count 1); robbery (§ 211; counts 2, 4-7, 9) and

attempted robbery (§§ 211, 664; counts 3, 8). The People alleged that as to count 2, Ruiz

was vicariously liable for use of a firearm (§ 12022, subd. (a)(1)); and as to count 8, he

personally used a knife (§ 12022, subd. (b)(1)). Finally, it was alleged that he had

suffered two prior prison convictions. (§§ 667.5, subd. (b), 668.)

       In August 2012, Ruiz pleaded guilty to counts 2 through 9, and in exchange, the

People dismissed count 1 and the enhancement allegations. The court informed Ruiz

before taking his plea: "You have eight strike convictions, you could be sentenced to 25




1      All statutory references are to the Penal Code unless otherwise stated.
                                             2
years to life as a result of pleading guilty to counts two through nine. You understand

this is a consequence of this plea? Ruiz stated, "Yes." Thereafter the court took Ruiz's

plea of guilty to each of the charges in counts 2 through 9. The parties stipulated to a

seven-year prison sentence. Ruiz initialed a Cruz waiver stating: "I understand that if

pending sentencing I am arrested for or commit another crime, violate any condition of

my release, or willfully fail to appear for my probation interview or my sentencing

hearing, the sentence portion of this agreement will be cancelled. I will be sentenced

unconditionally, and I will not be allowed to withdraw my guilty/no contest plea(s)."

Additionally, the court told Ruiz at the hearing: "Let me remind you this is a stipulated

negotiated plea agreement of seven years. You signed a Cruz waiver, sir, which basically

says that you understand pending sentencing if you are arrested for any other crime,

violate any condition of your release or willfully fail to appear to your probation

interview or sentencing hearing, the sentence portion of this agreement will be cancelled.

That means all bets are off and you're looking at 11 years, four months, all right?"

       On November 7, 2012, after Ruiz failed to appear for sentencing, the court issued

a bench warrant. On July 18, 2013, the court found Ruiz had violated the Cruz waiver

and sentenced him to eight years in prison.2



2      Defense counsel had argued for a sentence of seven years eight months. However,
the People argued for a sentence of 10 years: "Your honor, after numerous negotiations,
we got to seven years on a case where the defendant and his codefendants were basically
going around Hillcrest and Pacific Beach area[s] targeting people that were leaving night
clubs and committing street robberies involving knifes; one involved a gun. [¶] And,
when the defendants were found that night, they were found in Pacific Beach basically on
the hunt for more victims. So the seven years, that was something that was negotiated
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                                       DISCUSSION

                                              I.

       In supplemental briefing, the People characterize Ruiz's appellate claim as an

attack on the validity of the plea agreement, and argue his claim is not cognizable

because he failed to obtain a certificate of probable cause. We reject the contention.

Ruiz states that he is not seeking to withdraw his plea. Rather, his appellate claim is

limited to "what punishment for failing to appear is authorized by law, and what

punishment crosses the line and is unauthorized by law."

       We conclude Ruiz did not require a certificate of probable cause before filing this

appeal because he " 'is not attempting to challenge the validity of his plea of guilty but is

asserting only that errors occurred in the subsequent adversary hearing[] conducted by the

trial court for the purpose of determining . . . the penalty to be imposed.' " (People v.

Johnson (2009) 47 Cal.4th 668, 677; compare People v. Puente (2008) 165 Cal.App.4th

1143, 1149-1151 [defendant claimed on appeal that the trial court had failed to follow

certain procedures related to his violating his plea agreement, but through plea agreement




and reluctantly agreed to by the People. It was understood that Mr. Ruiz at that time
would show up for the sentencing hearing and start basically paying the piper. He did not
do that. [¶] He not only didn't show for the sentencing hearing, but he had to be picked
up on a warrant months later. It was not like he just missed a date with his fiancee and
then showed up and came and put himself on calendar and turned himself in. He was the
only one of three codefendants not to be sentenced yet because he was the one out of
custody. [¶] . . . [¶] Mr. Ruiz, having signed a Cruz waiver, was told by this court that
he has to be here on his sentencing date, and he decided not to show up and ends up
getting picked up months later. He is out there enjoying [his] freedom that he should not
have had at that point."
                                              4
he had waived the right to those procedures, thus defendant was attacking validity of plea

agreement and a certificate of probable cause was required].)

                                                  II.

       Ruiz concedes the People never charged him with willful failure to appear under

section 1320.5.3 Therefore, he was not convicted under that section nor did he plead

guilty to violating that section. Nevertheless, relying on section 1320.5, he contends that

after he violated the Cruz waiver, he should have been sentenced to only an additional

eight months beyond the agreed-upon seven years. It follows that Ruiz's arguments

regarding section 1320.5 are unavailing because that statute is inapplicable here. Ruiz's

claim of sentencing error lacks merit.

A. Applicable Law

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

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

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

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



3      Section 1320.5 provides: "Every person who is charged with or convicted of the
commission of a felony, who is released from custody on bail, and who in order to evade
the process of the court willfully fails to appear as required, is guilty of a felony. Upon a
conviction under this section, the person shall be punished by a fine not exceeding ten
thousand dollars ($10,000) or by imprisonment pursuant to subdivision (h) of Section
1170, or in the county jail for not more than one year, or by both the fine and
imprisonment. Willful failure to appear within 14 days of the date assigned for
appearance may be found to have been for the purpose of evading the process of the
court." In turn, section 1170, subdivision (h) sets the middle term for a felony punishable
under its provision as two years. Under section 1170.1, subdivision (a), the term for a
violation of section 1320.5 would be one-third the middle term, or eight months.
                                              5
the state by savings in cost of trial, increased efficiency, and flexibility of the criminal

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

governing plea agreements, reflects the Legislature's approval of the practice. [¶] Under

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

court, the defendant 'cannot be sentenced on the plea to a punishment more severe than

that specified in the plea . . . .' The statute further provides that if the court subsequently

withdraws its approval of the plea agreement, 'the defendant shall be permitted to

withdraw his or her plea if he or she desires to do so.' [Citations.] [¶] In People v. Cruz,

supra, 44 Cal.3d 1247, 1249, [the California Supreme Court] held that a defendant who

fails to appear for sentencing does not lose the protections of section 1192.5. The

defendant in that case pleaded guilty pursuant to a plea agreement that gave him the

option of a sentence of up to one year in the county jail with a maximum of five years'

probation or 16 months in prison without probation. The defendant failed to appear for

sentencing. When he was apprehended more than six months later, the superior court

refused to abide by the plea agreement, denied the defendant's motion to withdraw his

plea, and sentenced him to a term of two years in prison. The Court of Appeal affirmed

the resulting judgment, concluding that by failing to appear for sentencing, the defendant

' "breached the bargain . . . [and] is not entitled to either specific enforcement of that

bargain or withdrawal of his guilty plea." ' " (People v. Masloski (2001) 25 Cal.4th 1212,

1216-1217, fn. omitted.)

       The Cruz Court added the following caveat, which recognized the ability of a

defendant to waive the protections afforded by section 1192.5: "We do not mean to

                                               6
imply by this holding that a defendant fully advised of his or her rights under section

1192.5 may not expressly waive those rights, such that if the defendant willfully fails to

appear for 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, supra, 44 Cal.3d at p. 1254, fn. 5.)

       "[W]hen the parties themselves agree as part of the plea bargain to a specific

sanction for nonappearance, the court need not permit the defendant to withdraw his or

her plea but may invoke the bargained-for sanction." (People v. Casillas (1997) 60

Cal.App.4th 445, 452.) "The ultimate question will be not whether the bargain occurred

in a hermetically sealed environment from which the judge was excluded, but whether the

return provision resulted from the give-and-take of plea bargaining or was a judicially

imposed afterthought." (Id. at p. 452, fn. omitted.)

       Ruiz does not ask to withdraw his plea; rather, he seeks to be freed from the

legally binding effect of his Cruz waiver, which granted the court discretion to sentence

him up to the agreed-upon limit. Ruiz seeks a fixed term of eight months added to the

original agreement, because the Legislature has provided an eight-month term for those

who are not bound by a Cruz waiver. That option is not available to Ruiz. After he

accepted the court's indicated sentence and before he entered a plea, the court explained

what the "Cruz waiver" meant. Ruiz agreed to this additional term, and the court

subsequently took his plea. Thus, the Cruz waiver was added by the mutual agreement of

Ruiz and the prosecutor. It was part of a "give and take plea bargaining," and not "a

                                              7
judicially imposed afterthought." Accordingly, the trial court was not bound by the

seven-year agreed-upon term, and it was free to sentence Ruiz to any term within the

ceiling of 11 years 4 months. The sentence of eight years was within this ceiling, and the

court did not err by imposing it.




                                            8
                                 DISPOSITION

    The judgment is affirmed.




                                               O'ROURKE, J.

WE CONCUR:


      HUFFMAN, Acting P. J.


                     IRION, J.




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