Filed 3/23/16 P. v. Smith CA2/1
Received for posting 3/24/16
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B248357

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA091592)
         v.

SCOTT SMITH,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J.
Ferrari, Judge. Reversed.
                                                         ______

         Steven A. Brody, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       Pursuant to a plea bargain, defendant Scott Smith pleaded no contest to a charge of
possession of methamphetamine for sale and admitted a firearm allegation in exchange
for a five-year prison sentence. At the time the court accepted the plea, it did not obtain a
so-called Cruz1 waiver from defendant. When the defendant thereafter failed to appear
for sentencing, the court sentenced defendant to eight years in prison and denied
defendant’s request to withdraw his plea. Defendant contends that the court erred by
imposing a sentence greater than the term of the plea bargain without allowing him to
withdraw his plea. The Attorney General does not disagree. We agree and reverse.
                    FACTUAL AND PROCEDURAL SUMMARY
       An information charged defendant with possession of methamphetamine for sale
(count 1; Health & Saf. Code, § 11378); possession of a controlled substance while
armed with a firearm (count 2; Health & Saf. Code, § 11370.1, subd. (a)); being a felon in
possession of a firearm (count 3; Pen. Code, § 29800, subd. (a)(1));2 and being a felon in
possession of ammunition (count 4; § 30305, subd. (a)(1)). The information further
alleged that he was personally armed with a firearm and had been previously convicted of
possession of a controlled substance for sale. (§ 12022, subd. (c); Health & Saf. Code,
§§ 11370.2, subd. (c), 11378.) His maximum potential sentence was 12 years 4 months.
       On August 14, 2012, pursuant to a negotiated plea agreement with the District
Attorney and approved by the court, defendant pleaded no contest to count 1 and
admitted the firearm allegation in exchange for dismissal of the other charges and a
sentence of five years in state prison. The court advised defendant of his constitutional
rights, which defendant expressly waived, then accepted the defendant’s plea and, based
on stipulated facts, convicted him of count 1 and found the firearm allegation true.
The court dismissed the remaining counts.




1
       People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
2
       All subsequent statutory references are to the Penal Code unless otherwise
indicated.

                                              2
        After accepting the plea, the court ordered defendant to return for sentencing
on October 4, 2012, and informed defendant: “[I]f you fail to appear on that date,
the five[] years is off the table and you’re looking at the maximum time in custody.
It’s absolutely, unequivocally essential that you . . . appear on that date.” Defendant said
he understood.
        Defendant failed to appear for sentencing on October 4, 2012, and the court issued
a bench warrant.
        In November 2012, defendant was arrested and the court ordered him held without
bail.
        On February 22, 2013, in the presence of defendant, the court sentenced him
to eight years in prison, consisting of the high term of three years on count 1, plus
the high term of five years on the firearm allegation. The court told defendant it was
imposing the high terms because: “You were told at the time of the plea if you failed to
appear that date, the plea bargain was gone and you would receive the maximum time
in custody. And not only did you not appear on the date, you managed to get yourself
arrested on another offense.”
        Defendant apologized for not returning to court on October 4, 2012, and
explained: “I was distraught, I was on drugs, I wasn’t thinking clearly,” and said he did
not understand what he had admitted. The court denied his request to withdraw his plea.
        Defendant filed a notice of appeal, and the court denied his request for a certificate
of probable cause.3




3
        In his notice of appeal, filed by defendant in pro. per., defendant argued that he is
entitled to withdraw his plea because his counsel was constitutionally deficient in
advising him to accept the plea deal. He does not assert this argument in his brief on
appeal.

                                              3
                                       DISCUSSION
       Under section 1192.5, when a defendant’s “plea is accepted by the prosecuting
attorney in open court and is approved by the court, the defendant, except as otherwise
provided in [that] 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.” (Italics added.)
       In Cruz, our Supreme Court held that when a defendant enters a plea pursuant
to a plea agreement and the court subsequently withdraws its approval of the agreement
because the defendant failed to appear at the sentencing hearing, the defendant retains
the right to withdraw his or her plea. (Cruz, supra, 44 Cal.3d at pp. 1250, 1254; see
People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2.) In this case, defendant entered a
plea pursuant to a plea agreement, which the court approved. Defendant thereafter failed
to appear at the sentencing hearing and, on that basis, the court withdrew its approval
of the agreement. It proceeded to impose a sentence greater than the terms of the plea
agreement without allowing defendant to withdraw his plea. Under Cruz, this was error.
       As Cruz acknowledged, a defendant can waive the protections provided by
section 1192.5. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) Here, however, the
defendant did not waive that right. Instead, as the Attorney General concedes, “the
court unilaterally imposed a sanction for nonappearance at sentencing”; “[t]he court
never explained the meaning of a Cruz waiver to defendant, nor was defendant provided
with a statement of his rights under section 1192.5, including, most importantly, his right
to withdraw his plea if the court chose not to sentence in accordance with the plea
bargain.”



                                              4
          Defendant contends that we should order specific performance of the plea
agreement and direct the trial court to sentence defendant in accordance with the
agreement. We disagree. Upon remand, the court has the option to withdraw approval
of the plea agreement. (See People v. Kim (2011) 193 Cal.App.4th 1355, 1365.) If it
disapproves the agreement, it must give defendant the option of withdrawing his plea.
(Ibid.)
          Finally, we agree with defendant that his appeal is not precluded by his failure to
obtain a certificate of probable cause. Such a certificate is not required when, as here, the
“defendant does not challenge the original validity of the plea but asserts that errors were
committed in proceedings subsequent to the plea for the purpose of determining the
penalty to be imposed.” (People v. Kaaneha (1977) 19 Cal.3d 1, 8; see also People v.
Hernandez (2008) 166 Cal.App.4th 641, 646 [“A postplea question not challenging the
validity of a guilty plea is a noncertificate issue that may be raised on appeal after a guilty
or no contest plea without a certificate of probable cause.”].)
                                        DISPOSITION
          The judgment is reversed.
          NOT TO BE PUBLISHED.




                                                    ROTHSCHILD, P. J.
We concur:



                        CHANEY, J.



                        LUI, J.




                                                5
