Opinion
E065187
08-24-2017
THE PEOPLE, Plaintiff and Respondent, v. DUANE HUBERT GROVER, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1500872) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed as modified with directions. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Duane Hubert Grover pleaded guilty to the court as charged to unlawful possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1), unlawful possession of ammunition (§ 30305, subd. (a); count 2), receiving stolen property (§ 496, subd. (a); count 3), and unlawfully carrying a loaded firearm in public (§ 25850, subd. (c)(6); count 4). Defendant also admitted that he had suffered one prior strike conviction (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1)). In return, the trial court gave defendant an indicated sentence of probation with a year in local custody if it granted his motion to strike his prior strike conviction or 16 months in state prison. The court also warned defendant that if he did not appear at the date of sentencing, the court would impose the maximum term.
All future statutory references are to the Penal Code unless otherwise stated.
On the scheduled date for sentencing, defendant failed to appear. Approximately two and a half months later defendant surrendered himself and appeared in court. Defendant was subsequently sentenced to four years in state prison.
On appeal, defendant argues that (1) his plea was invalid, (2) the trial court abused its discretion in denying his motion to withdraw his plea, and (3) the trial court should have stayed punishment on counts 2, 3, and 4, rather than impose concurrent terms. We agree that defendant's punishment on counts 2, 3, and 4 should have been stayed pursuant to section 654. We, however, reject defendant's remaining contentions and affirm the judgment as modified.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing.
On January 9, 2015, pursuant to a probation search of defendant's vehicle, officers found a stolen loaded and operable semiautomatic firearm hidden in the engine compartment of the vehicle. Defendant had previously been convicted of a felony and knew he was not supposed to have a firearm and/or ammunition in his possession.
On May 6, 2015, an information was filed charging defendant with unlawful possession of a firearm (§ 29800, subd. (a)(1); count 1), unlawful possession of ammunition (§ 30305, subd. (a); count 2), receiving stolen property exceeding $950 (§ 496, subd. (a); count 3), and unlawfully carrying a loaded firearm in public (§ 25850, subd. (c)(6); count 4). The information also alleged that defendant had suffered one prior strike conviction, to wit, residential burglary (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1)).
On August 14, 2015, defendant entered a plea with the court. In accepting the plea, defendant signed and initialed the standard plea form. Defendant initialed the section noting all promises made to him were written on the plea form or were stated in open court. The plea contemplated that defendant would plea to the court to all counts and admit the prior strike conviction in exchange for a one-year term in county jail if the court struck his prior strike conviction or 16 months in state prison and if defendant appeared for sentencing on September 25, 2015.
At the hearing, the court confirmed with defendant that he "decided to go ahead and plead guilty to [the court] with the understanding that your lawyer is going to run a Romero motion to ask me to strike your strike. If I don't strike your strike, you're ineligible for probation." The court explained, "I told [your lawyer] I'd give you a choice between probation and a year and/or 16 months in state prison, because she said you might prefer that, and I know you want 45 days. If for some reason, after she files her motion and the D.A. files the response, there's something I don't know and I'm not going to grant the motion, you can start over, I'll let you withdraw the plea, and you'll be back at square one."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The trial court's reference to "45 days" appears to suggest defendant sought to set the Romero motion and sentencing hearing out for that length of time.
The court then commented on the timing of the proceedings, noting ". . . I don't usually put them out this long. I don't usually put them out 45 days. So I will put it out 45 days for you, because you've been coming to court, but two things: I won't continue it past then. I know you have a baby coming, but don't come in and tell me about your baby. You'll go in then. [¶] And number two, if you don't show up, I'll max you out at six years, which is the high term, doubled because of your strike. Do you understand that?" Defendant responded that he understood. The prosecutor pointed out to the court that the maximum exposure was actually seven years four months. The court agreed and informed defendant, "So seven years and four months is a lot of time to do at 80 percent, so show up." Defendant replied, "I understand."
The court then reviewed defendant's constitutional rights and confirmed he had reviewed the waiver of his rights on the plea form with his lawyer. Defendant agreed that he understood his rights and did not have any remaining questions. Defendant then pleaded guilty to all of the charges. During the colloquy, when asked if he admitted his prior strike conviction, defendant asked if it was a "potential strike." The court clarified, "No, it is a strike. The question is not whether it's a strike. The question is whether I'm going to impose sentencing on the strike. It will still stay a strike even if I grant your Romero. I'm not erasing it. I'm just not imposing the sentence on it. I can't erase it." Defendant indicated that he understood and admitted the prior strike.
The court found, "[a]fter directly examining the defendant, the Court determines the defendant has knowingly and intelligently waived his rights. He understands his charges and the consequences of his plea and admission." The court then obtained a factual basis for the plea, and confirmed the next court date as September 25, 2015. The court informed defendant, "I'll see you back September 25th, 8:30, ready to go, and we'll do your probation terms and your credits and all that at that time, and you can make a final decision that day, probation or 16 months. You can still make that option too."
On August 31, 2015, defendant's trial counsel filed a Romero motion to dismiss defendant's prior strike conviction. The People subsequently filed opposition.
At the scheduled September 25, 2015 sentencing hearing date, defendant failed to appear. The trial court deemed defendant's bail forfeited and issued a bench warrant for defendant's arrest. The court informed defendant's trial counsel, "If he does come in, I will remand him and I will give you notice and set it."
Defendant surrendered and appeared in court on December 4, 2015. At that time, the court remanded him to custody without bail and set the matter for sentencing.
The sentencing hearing was held on December 9, 2015. At that time, the trial court noted that defendant was supposed to have been sentenced two and a half months ago but failed to appear. The court expressed its understanding that defendant wanted to withdraw his plea. Defendant explained that he was not getting the same deal he was offered. The court responded, "You're getting exactly the same deal that you were offered. You know what I told you, right? That if you showed up, I would grant your Romero motion, and I would give you a year and probation. If you didn't show up, you could get up to six years. Remember I told you that?" Defendant replied, "No—well, sort of." The following colloquy thereafter occurred between the court and defendant:
"THE COURT: Sort of kind of, it's on the record. You know I told you that; right?
"THE DEFENDANT: I know, but I—I mean, I wanted to show up. I was in the hospital.
"THE COURT: I understand you were in the hospital for a day, maybe two.
"THE DEFENDANT: Actually for one day. And then a week later, I had to go back in.
"THE COURT: It's [been] two and a half months.
"THE DEFENDANT: Yes, ma'am. I have a remodel business, and I had jobs that needed to be finished. I can't leave people with half-done houses.
"THE COURT: Mr. Grover, you don't have a reason to withdraw your plea. You're in a position where you have to accept the consequences of the indicated sentence that I gave you. That is, show up to court on time; show me that you're amenable to probation. That's what is showing up to court on time shows me, and I give [sic] you an opportunity to do that
"THE DEFENDANT: Ma'am
"THE COURT: —but if you fail to show up on time, you would not get that opportunity, and I could give you the maximum time
"THE DEFENDANT: Ma'am, I
"THE COURT: —that was your deal.
"THE DEFENDANT: I wanted to, but I was in the hospital.
"THE COURT: Well, you said that a minute ago. Then you said what is the honest answer, you wanted to finish jobs.
"THE DEFENDANT: That was after I was out of the hospital.
"THE COURT: I understand that.
"THE DEFENDANT: I couldn't leave people hanging.
"THE COURT: You said that. Anything else?
"THE DEFENDANT: Well, I don't know what else to say.
"THE COURT: All right. The motion to withdraw your plea is denied. You have zero grounds to withdraw it."
The trial court then declined to strike defendant's prior strike conviction and sentenced defendant to a total term of four years in state prison with credit of 20 days for time served as follows: the middle term of two years on count 1, doubled to four years due to the prior strike; a concurrent term of four years on count 2; a concurrent term of 180 days on count 3; and a concurrent term of four years on count 4.
The trial court reduced count 3, receiving a stolen .45-caliber pistol (§ 496, subd. (a)), to a misdemeanor pursuant to Proposition 47. The People had no objection to the court reducing count 3 to a misdemeanor.
On January 8, 2016, defendant filed a notice of appeal and a request for certificate of probable cause. The trial court granted defendant's request for certificate of probable cause on January 11, 2016. An amended notice of appeal was filed on January 22, 2016.
III
DISCUSSION
A. Validity of Plea
Defendant argues that his guilty plea and admission were products of an unauthorized judicial plea bargain. He further asserts that his plea was generally invalid because his waivers were not made voluntarily, knowingly, and intelligently, and the trial court obtained an improper Cruz waiver. Defendant therefore believes the case must be remanded to allow him the opportunity to withdraw his guilty plea and admission. We disagree.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
1. Judicial Plea Bargaining
In People v. Clancey (2013) 56 Cal.4th 562, 572-584 (Clancey) the California Supreme Court set forth the legal distinction between unlawful plea bargains and lawful indicated sentences. (Accord, People v. Woosley (2010) 184 Cal.App.4th 1136, 1145-1148 (Woosley), disapproved on another ground in Clancey, at p. 581, fn.3.) The trial court in Clancey, following off-the-record discussions among the parties, recited the details of the defendant's plea bargain on the record. The defendant was to plead to the allegations as charged, including an admission to a prior serious felony conviction under the "Three Strikes" law. The trial court stated it anticipated that at sentencing, it would grant the defendant's request pursuant to Romero, supra, 13 Cal.4th 497, to strike the prior serious felony allegation and sentence the defendant to prison for five years. (Clancey, at p. 570.)
In Clancey, the People objected to the proposed disposition because the People believed a reasonable disposition would be a state prison sentence of eight or nine years. (Clancey, supra, 56 Cal.4th at pp. 570-571.) Despite the objection, the trial court obtained the appropriate waivers from the defendant, the parties stipulated to a factual basis for the plea, and the defendant pled no contest to all of the allegations and admitted the prior serious felony allegation. During sentencing as the trial court considered the defendant's Romero request, the People again objected to proposed disposition of a five-year sentence. The trial court explained that the purpose of the early resolutions calendar was to dispose of cases. (Clancey, p. 571.) The court struck the prior serious felony allegation pursuant to Romero and sentenced the defendant to a prison term of five years. (Clancey, at p. 572.)
Our Supreme Court in Clancey proceeded to discuss the doctrine of separation of powers between the courts and the executive branch of government represented by the prosecutor, especially the executive's prerogative to conduct plea negotiations. (Clancey, supra, 56 Cal.4th at pp. 572-575; accord, Woosley, supra, 184 Cal.App.4th at pp. 1145-1146.) The Clancey court stated four basic limitations on the courts toward this end: (1) the trial court generally should refrain from announcing an indicated sentence while the parties are still negotiating a potential plea bargain; (2) the trial court should consider whether the existing record concerning the defendant and the defendant's offense or offenses is adequate to make an informed and reasoned judgment as to the appropriate penalty; (3) a court cannot offer any inducement in return for a plea of guilty or nolo contendere, treating the defendant more leniently because he or she forgoes his or her right to trial or more harshly because he or she exercises that right; and (4) the court cannot bargain with a defendant over the sentence to be imposed. (Clancey, at pp. 574-575.)
The Clancey court further noted that an indicated sentence is not a promise that a particular sentence will in fact be imposed at sentencing and it does not divest the trial court of its ability to exercise its discretion at the sentencing hearing. (Clancey, supra, 56 Cal.4th at p. 576.) By indicating a sentence, "the court has merely disclosed to the parties at an early stage—and to the extent possible—what the court views, on the record then available, as the appropriate sentence so that each party may make an informed decision." (Id. at p. 575.) Accordingly, if the factual predicate underlying an indicated sentence is disproved at trial, the court may withdraw that indicated sentence. (Id. at p. 576.) Furthermore, the court retains broad discretion to modify an intended sentence even if its factual predicate is not disproved. (Id. at pp. 576-577.) In particular, "[t]he development of new information at sentencing may persuade the trial court that the sentence previously indicated is no longer appropriate for this defendant or these offenses. Or, after considering the available information more carefully, the trial court may likewise conclude that the indicated sentence is not appropriate." (Id. at p. 576.) Therefore, a court may sentence a defendant differently than an indicated sentence based on additional new information or a reexamination of the relevant circumstances. (Ibid.) The Clancey court concluded the record in that case did not clearly show whether the indicated sentence represents the trial court's considered judgment as to the appropriate punishment for the defendant. When both conditions are met, the proper remedy is a conditional reversal with directions to the trial court on remand to resolve the ambiguities in the record. (Id. at p. 578.)
Assuming, without deciding, defendant has standing to raise this issue, we find the instant action distinguishable from Clancey. Unlike the prosecutor in Clancey, the prosecutor in this case never objected to any aspect of the plea agreement, including the trial court's proposed disposition. Also, in Clancey the People were the aggrieved party and objected to the trial court's indicated sentence. Here, in contrast, defendant failed to object to the trial court's indicated sentence until the instant appeal.
The People argue that defendant does not have standing to raise the unauthorized judicial plea bargaining issue because the issue generally stems from the People's appeal because the prosecution is the aggrieved party when the trial court oversteps its role.
We further observe that although the trial court stated on the record what its indicated disposition would be, it appears from the available record that the court was announcing the terms of a negotiated plea agreement between the parties rather than unilaterally imposing an agreement without the prosecutor's consent. Indeed, the prosecutor did not object or refuse to consent to the arrangement. He merely stated for the record that the plea constituted a plea to the court. Defendant executed a plea form acknowledging the consequences of his plea and waiving his constitutional rights. The terms of the plea agreement were set forth in the plea form. The trial court announced the terms of the plea agreement without objection from the prosecutor. Also, defendant pleaded guilty as charged and admitted all allegations. No charges or allegations were reduced or dismissed. The trial court indicated that should no new facts arise in the prosecution's opposition to the Romero motion, it would give defendant the choice between serving 16 months in prison or formal probation with a condition that he serve a year in local custody.
Finally, most of the indicia of an improper indicated sentence were not present in the instant action. There is no indication in the record that there were negotiations on-going between the prosecution and defendant. The facts of defendant's current and past convictions were clear enough for the trial court to make an informed and reasoned judgment concerning judgment in defendant's case. There is no indication the court offered an improper inducement or that the court bargained directly and only with defendant to obtain his change of plea. The prosecutor did not challenge the plea agreement, or indicated sentence, at the change of plea hearing and still does not do so on appeal. Based on the foregoing, we find that the trial court did not negotiate an unlawful plea bargain.
Defendant nevertheless relies on comments made at the December 9, 2015 hearing in an attempt to show that the trial court had engaged in unlawful plea bargaining. Specifically, defendant points to a comment made by the trial court when he requested to withdraw his plea after he failed to appear at the scheduled September 25, 2015 sentencing hearing. At the December 9, 2015 hearing, defendant stated that he was "not getting the same deal that I was offered." The trial court immediately responded, "[y]ou're getting exactly the same deal that you were offered" and then reiterated the court's indicated sentence if defendant showed up to the scheduled September 25, 2015 sentencing hearing. The mere fact that defendant and the trial court used the word "deal" does not establish the trial court engaged in an unlawful plea to the court. To the contrary, there is no evidence in the record to support defendant's claim that an unauthorized judicial plea bargain occurred in this case.
2. Defendant's Waiver of Constitutional Rights
Defendant argues that the waiver of his constitutional rights to a jury trial, to confront witnesses, and against self-incrimination were involuntarily coerced by the trial court's promises of leniency. The record belies this contention.
Before a trial court may accept a defendant's guilty plea, the defendant must be informed of several rights, including the right to a jury trial, the right to confront the defendant's accusers, and the defendant's privilege against compulsory self-incrimination. (Boykin v. Alabama (1969) 395 U.S. 238, 242-243; In re Tahl (1969) 1 Cal.3d 122, 132-133, disapproved on another point in Mills v. Municipal Court (1973) 10 Cal.3d 288, 307.) A plea, like any other waiver of constitutional rights may be accepted by the court only when made knowingly and intelligently. (People v. Smith (2003) 110 Cal.App.4th 492, 500.) The waiver of the fundamental constitutional rights must be made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. It must be voluntary in the sense that it was the product of free and deliberate choice and not based on intimidation, coercion, or deception. (People v. Collins (2001) 26 Cal.4th 297, 305 (Collins); People v. Cunningham (2015) 61 Cal.4th 609, 636-637.) When a defendant elects to waive the fundamental constitutional rights that accompany a trial by pleading guilty, the record must reflect that the defendant did so knowingly and voluntarily. (People v. Howard (1992) 1 Cal.4th 1132, 1175, 1179 (Howard).) The record should reflect that defendant was advised of his rights and elected to waive them. (Collins, at p. 308.) Under the governing test, a plea is valid "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Howard, at p. 1175, 1180; see People v. Mosby (2004) 33 Cal.4th 353, 361 ["the reviewing court must examine the record of 'the entire proceeding' to assess whether the defendant's admission of [guilt] was intelligent and voluntary . . ."].)
The state may not punish a defendant for the exercise of a constitutional right, or promise leniency to a defendant for refraining from exercising the right. "Coercion in either form has been rejected, whether its source is executive, legislative, or judicial in nature." (Collins, supra, 26 Cal.4th at p. 306.) The decisions prohibiting such coercion condemn the state's unilateral imposition of a penalty upon a defendant who chooses to exercise a legal right. It is a violation of due process of the most basic sort to punish a person because he or she has done what the law plainly allows. (Id. at p. 306.)
In the present matter, there has been no showing of judicial coercion. The trial court merely offered an indicated sentence should defendant plead guilty as charged. The court did not engage in any intimidation tactics or persuasion to overcome defendant's free judgment. In fact, there is nothing in the record to support defendant's claim that he was coerced into waiving his constitutional rights by promises of leniency.
Defendant relies on Collins, supra, 26 Cal.4th 297 in an attempt to show the trial court engaged in coercive conduct rendering the plea invalid. Collins, however, is distinguishable from the instant case. In Collins, after the trial court learned the defendant might waive a jury trial, the court informed defense counsel " 'there might well be a benefit in it,' because 'just by having waived jury' and thus not taking two weeks' time to try the case, 'that has some effect on the court.' " (Collins, at p. 309.) The court then informed the defendant he would receive a benefit of an unspecified nature if he waived his right to a jury trial. The court secured the defendant's response that he understood the court's comments. (Ibid.)
The Supreme Court observed "[t]he trial court, by following that procedure while announcing its intention to bestow some form of benefit in exchange for defendant's waiver of that fundamental constitutional right, acted in a manner that was at odds with its judicial obligation to remain neutral and detached in evaluating the voluntariness of the waiver." (Collins, supra, 26 Cal.4th at p. 309.) The court determined "[t]he form of the trial court's negotiation with defendant presented a 'substantial danger of unintentional coercion.' " (Ibid.) The Supreme Court further noted the waiver of the fundamental right of a jury trial is not by itself subject to negotiation by the trial court. "In effect, the trial court offered to reward defendant for refraining from the exercise of a constitutional right." (Ibid.) The court concluded fundamental error was structural error, not subject to harmless error analysis and compelled reversal of the judgment. (Collins, at pp. 310-313.)
In Collins, unlike in the present case, the trial court offered the defendant a vague promise of leniency to induce a waiver of the defendant's right to a jury trial in order to save judicial resources. (Collins, supra, 26 Cal.4th at pp. 300, 309, 312.) Here, the trial court merely informed defendant of its indicated sentence should defendant plead guilty as charged. The trial court indicated the sentence if defendant failed to appear. The court also indicated the consequence (or a lengthier sentence) if defendant failed to appear at the scheduled sentencing hearing. At no point did the trial court promise defendant leniency in order to convince him to relinquish his constitutional rights. Rather, the record shows that defendant waived his constitutional rights and that his free judgment to waive his constitutional rights had not been overcome by the trial court's comment explaining its indicated sentence.
3. Validity of Cruz Waiver
Defendant contends that his purported Cruz waiver was not made knowingly and intelligently because such waivers are generally treated as terms of a contract that have been negotiated and agreed upon by the prosecution and the defendant. He also asserts the Cruz waiver was invalid because he did not have an opportunity to confer with his counsel before he entered into the Cruz waiver.
The relevant considerations by which the contention must be resolved were summarized in People v. Masloski (2001) 25 Cal.4th 1212 (Masloski). The Masloski court reviewed a line of cases, beginning with People v. Morris (1979) 97 Cal.App.3d 358, concerning the options available to the trial court when a defendant fails to appear at sentencing following a plea of guilty. Masloski noted that the issue had previously been addressed in Cruz, supra, 44 Cal.3d 1247. There, it was held "that a defendant who fails to appear for sentencing does not breach the terms of the plea agreement, but commits 'a separate offense of failure to appear. [Citation.]' [Citation.]" (Masloski, at p. 1219.) However, Cruz added the caveat that a defendant could expressly waive his rights under section 1192.5, " '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. [Citation.]" (Masloski, at p. 1219.)
Section 1192.5 provides, in relevant part: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this 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." --------
This caveat was discussed in People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas). Vargas drew a distinction "between (1) a plea agreement that provides alternate sentences depending upon whether the defendant does or does not appear for sentencing as ordered, and (2) a sanction for nonappearance that is unilaterally imposed by the trial court . . . ." (Masloski, supra, 25 Cal.4th at p. 1220, italics omitted.) "Similarly, the court in People v. Murray (1995) 32 Cal.App.4th 1539 . . . , found a nonappearance sanction invalid because it was not part of the plea agreement." (Masloski, at p. 1221.) Thus, there is a recognized exception to the rule where the condition that triggers a higher sentence is part of the plea bargain itself and not a condition later added by the court. (Vargas, at pp. 1112-1113.) Courts have examined the conditions of the plea bargain and have enforced a defendant's right to withdraw the plea where the trial court added a condition that was not a reasonable expectation of the defendant or attorney. (People v. Jensen (1992) 4 Cal.App.4th 978, 983.)
In People v. Casillas (1997) 60 Cal.App.4th 445 (Casillas), a plea agreement provided for a maximum of 90 days' county jail time as a condition of probation for possession of methamphetamine, "but if [the defendant] failed to appear for sentencing, the maximum sentence would be increased to three years in prison." (Masloski, supra, 25 Cal.4th at p. 1221.) The defendant failed to appear on the scheduled sentencing date and was ultimately sentenced to a three-year state prison term.
In affirming the sentence and judgment, Casillas "distilled the following principles: 'First, when a defendant fails to appear at sentencing after entering a bargained plea with no discussion about a specific sanction for nonappearance, he or she is entitled to withdraw the plea if the court refuses to honor the plea bargain. Second, the same rule applies when, during the plea proceedings but after the parties have negotiated the basic plea bargain, the court imposes an additional condition providing a sanction for nonappearance. Third, when 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, supra, 60 Cal.App.4th 445, 451-452.)" (Masloski, supra, 25 Cal.4th at pp. 1221-1222.) The Casillas court acknowledged that the defendant had merely agreed to a maximum rather than a specific term to be imposed for nonappearance, but found the difference to be insignificant. (Masloski, at p. 1222.)
In Masloski, the trial court explained to the defendant that it would take a "Cruz waiver," following which it stated that if the defendant did not appear for sentencing, it would no longer be bound to give the bargained-for term of two years eight months but could treat the matter as an open plea with a six-year maximum sentence. (Masloski, supra, 25 Cal.4th at p. 1215.) The Masloski court noted that, as in Casillas, the transcript of the plea made clear that the plea agreement "included a provision for an increased sentence in the event defendant failed to appear for sentencing. [Citation.]" (Masloski, at p. 1223.) Accordingly, the trial court did not err when it imposed a four-year term after the defendant eventually appeared for sentencing. (Id. at pp. 1216, 1223-1224.)
We find this case to be analogous to Casillas and Masloski. As in Masloski, it appears the Cruz waiver was part of the plea and there was an off-the-record conversation with counsel regarding the Cruz waiver. When discussing the Cruz waiver, at the change of plea hearing, the court stated, "However, I told her [defense counsel], and I'll tell you, I don't usually put [sentencing hearings] out this long. I don't usually put them out 45 days. So I will put it out 45 days for you, because you've been coming to court, but two things: I won't continue it past then. I know you have a baby coming, but don't come in and tell me about your baby. You'll go in then. [¶] And number two, if you don't show up, I'll max you out at six years, which is the high term, doubled because of your strike. Do you understand that?" The court's statements suggest that the Cruz waiver was part of the plea where, as part of the plea to the court, counsel requested an extended time for sentencing likely because defendant was expecting a child. Since the timing of sentencing was based on defendant's own request, it is only reasonable to infer that counsel conveyed the Cruz waiver with defendant prior to the change of plea proceeding. As such, the record suggests that defendant did have an opportunity to discuss the Cruz waiver with his counsel.
Moreover, there is no indication in the record to show defendant appeared confused or was unaware of the Cruz waiver condition. Defendant indicated he understood on a number of occasions and declined the opportunity to ask any questions about anything. Defendant also initialed the plea form acknowledging that "All the promises made to [him] are written on this form, or stated in open court." The plea form also noted that defendant's "guilty pleas are conditional on receiving the following considerations as to sentence: [¶] . . . [¶] d) Other: Romero mx + sent 9/25/15." Furthermore, although the plea was to the court, there is no evidence to suggest the Cruz waiver was not discussed between the parties prior to the change of plea hearing. In fact, the People did not object to the Cruz waiver at the plea hearing.
The record is clear that defendant sought a benefit in delaying the sentence and the trial court agreed to that benefit by attempting to assure defendant's attendance at the September 25, 2015 sentencing hearing. It also appears that, under the circumstances of this case, it can reasonably be inferred that defendant sought a Cruz waiver prior to the change of plea hearing and that it was not a condition later added by the trial court. (See Vargas, supra, 223 Cal.App.3d at pp. 1112-1113.) The record shows that defendant executed a knowing and intelligent Cruz waiver. Read in context, the transcript of the plea made clear that the plea "included a provision for an increased sentence in the event defendant failed to appear for sentencing." (Masloski, supra, 25 Cal.4th at p. 1223.)
B. Denial of Motion to Withdraw Guilty Plea
Defendant also argues that the trial court abused its discretion when it denied his oral motion to withdraw his guilty plea because the court's admonition at the plea hearing was confusing and contained a discrepancy. Specifically, he asserts that the court's comments suggest that if it did not grant the Romero motion, the court would permit defendant to withdraw his plea. Yet, once defendant failed to appear, the court actually denied the Romero motion but did not permit defendant to withdraw his plea.
Section 1018, governing the withdrawal of guilty pleas, provides: " ' " '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.' " ' " A showing of good cause under this standard must be supported by clear and convincing evidence. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123 (Sandoval); People v. Weaver (2004) 118 Cal.App.4th 131, 145 (Weaver); People v. Wharton (1991) 53 Cal.3d 522, 585.) " ' "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.]" [Citation.] "The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty." ' " (Sandoval, at p. 123; see People v. Wharton, at p. 585.)
" 'When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]' [Citation.]" (Weaver, supra, 118 Cal.App.4th at p. 146.) "[A] reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
First, we find defendant forfeited his claim that the court's comments at the plea hearing were confusing or contained discrepancies, as he failed to raise this contention in the court below. (See People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13 [when a party does not raise an argument below, he may not do so on appeal], overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421.) Second, even if defendant's claim is not forfeited, defendant's characterization of the record is mistaken. The trial court's statements were very clear. At the plea hearing, the court clearly stated that if defendant failed to appear at sentencing, he would subject himself to the maximum term, but if he did appear and the court denied the Romero motion because new information had surfaced, defendant could withdraw his plea. When defendant eventually appeared for sentencing, he acknowledged the court's advisements. Following defendant's reasons for his failure to appear at the scheduled September 25, 2015 sentencing hearing, the trial court found defendant had "zero" grounds upon which to withdraw his plea. The court noted defendant needed to accept the consequences of the indicated sentence the court had given, namely that if defendant did not show up on September 25, 2015, the court could impose the maximum sentence.
Under the circumstances of this case, defendant has not shown good cause to withdraw his plea. There is no clear and convincing evidence that defendant entered his guilty plea and admission based on a mistake or ignorance. The trial court clearly explained the terms of the indicated sentence and defendant indicated he understood these terms. There is no evidence in the record to suggest defendant was misled or confused by the court's comments at the plea hearing or that he did not understand the court's indicated sentence. Defendant also proffered no valid reason as to why he failed to surrender himself until months after he was due in court.
Defendant relies on People v. Spears (1984) 153 Cal.App.3d 79 (Spears). In Spears, the court had indicated to the defendants during the plea negotiations that there was a "good likelihood" that they would be placed on probation when sentenced. (Id. at p. 83.) Further, the climate of the plea bargain was "one of real anticipation on the part of the defendants and counsel, if not the court, that probation was likely." (Id. at p. 84.) However, the defendants eventually pleaded to charges that would make "probation legally possible, but statutorily disfavored and therefore less than probable." (Id. at p. 87.)
The Spears court noted that the defendants had been advised of the maximum sentence they could face. However, the trial court had also made references to probation without giving "the slightest hint that there were statutory hurdles not faced by the other defendants, or to criminal defendants in general. Thus, because probation was statutorily disfavored, the advice was misleading to the extent that the defendants had been permitted by the court to believe that probation was likely." (Spears, supra, 153 Cal.App.3d at p. 87.) The court concluded that it must answer two questions: "First 'Had defendants been advised of the statutory presumption against probation, would they have been willing to plead?' Second, 'If the court had thought of the disfavored probation consequence, would it have revised its "probation likely" comment?' " (Ibid.) Thereafter, the Spears court held that the trial court should have "disclose[d] the full consequences of such a plea," which included the consequence of disfavored probation. Accordingly, it reversed the trial court's denial of the motion to withdraw the plea. (Id. at pp. 87-88.)
This case is distinguishable from Spears. The record before us does not reflect that the trial court made an equivocal promise to defendant that it would grant the Romero motion if he appeared at the September 25, 2015 sentencing hearing or that defendant could withdraw his guilty plea if he failed to appear at the scheduled sentencing hearing. Instead, the trial court clearly stated that if defendant failed to appear at the September 25, 2015 scheduled sentencing hearing, the trial court would sentence defendant to the maximum term.
In sum, defendant failed to meet his burden to show good cause as to why his plea should be withdrawn. The trial court therefore properly denied defendant's oral motion to withdraw his guilty plea.
C. Section 654
Finally, defendant asserts the trial court should have stayed punishment on counts 2, 3, and 4 pursuant to section 654. He argues that his conviction on count 1 for being a felon in possession of a firearm was based on the same act as his convictions for counts 2 (unlawful possession of ammunition), 3 (receiving a stolen firearm), and 4 (unlawfully carrying a loaded firearm in public). The People respond that the sentences on counts 2 and 4 must be stayed, but maintaining punishment on count 3 was proper.
Section 654, subdivision (a), provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute " 'prohibits multiple punishment for the same "act or omission," ' " and requires the trial court to " 'stay execution of sentence on the convictions for which multiple punishment is prohibited.' " (People v. Correa (2012) 54 Cal.4th 331, 337 (Correa); accord, People v. Kelly (2016) 245 Cal.App.4th 1119, 1130 (Kelly).) Its purpose "is to ensure that a defendant's punishment will be commensurate with his culpability." (Correa, at p. 341; accord, Kelly, at pp. 1130-1131.)
" 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] ' "The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 886; accord, People v. Deegan (2016) 247 Cal.App.4th 532, 541-542, 545 (Deegan).)
"We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603 (Moseley); accord, Deegan, supra, 247 Cal.App.4th at p. 545 & fn. 4.) "[W]e review the trial court's conclusions of law de novo." (Moseley, at p. 1603.)
In People v. Jones (2012) 54 Cal.4th 350 (Jones), the California Supreme Court considered whether the defendant could be "punished separately for the crimes of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public." (Id. at p. 352.) The defendant had been found with a loaded .38-caliber revolver in his car and the gun was not registered to him. (Ibid.) The defendant had purchased the gun three days earlier " 'for protection,' " and he had kept the gun at his grandmother's house before that day. (Ibid.) The court held that under the circumstances, the defendant had committed "a single act" that could only be punished once. (Id. at p. 360.)
The Jones court noted that the defendant's "guilt on all three charges was premised solely on his having the gun in his car when arrested" and that "the jury convicted defendant of each crime due to his being caught with the gun in the car on [the day of his arrest], not due to any antecedent possession." (Jones, supra, 54 Cal.4th at p. 359.) The court declined to express an opinion "on what the outcome might be under other facts" and did not decide whether "keeping the gun at the house and carrying it in the car were separate acts." (Ibid.)
After Jones, the Third District Court of Appeal decided People v. Atencio (2012) 208 Cal.App.4th 1239 (Atencio), which considered whether section 654 applied to the defendant's convictions of grand theft of a firearm and possession of a firearm by a felon. (Id. at p. 1241.) The defendant had taken a .45-caliber semiautomatic pistol from a residence, and he had discarded the pistol in another residence the following day after trying to sell some jewelry to the resident. (Id. at pp. 1241-1242.) The Atencio court held that section 654 prohibited multiple punishment for the two offenses, because the "defendant's theft of the pistol was merely the means by which he gained possession of the pistol." (Id. at p. 1244.)
The Atencio court rejected the People's argument that the defendant had two separate objectives: first, to take the gun from its original owner; and second, to possess the gun while selling jewelry. (Atencio, supra, 208 Cal.App.4th at p. 1244.) The court determined that this argument was "cutting the point too fine" since the evidence showed that the defendant's "only point in taking the gun was to gain possession of it, so that he could then do with it what he pleased, whether 'possess[ing] [it] while selling jewelry' or something else." (Ibid., italics omitted.) "The fact that defendant kept possession of the gun for a period of 24 hours did not, without more, alter his intent and objective such that his course of criminal conduct can be deemed to consist of more than one act for purposes of section 654." (Ibid.)
After Atencio, this court decided People v. Lujano (2014) 229 Cal.App.4th 175 (Lujano). In Lujano, we stated: "There is some authority for the proposition that section 654 does not necessarily preclude punishment for both receiving a firearm as stolen property and unlawfully possessing that firearm, on the theory that as to each offense the defendant may have had a 'separate and distinguishable mens rea.' (People v. Taylor (1969) 2 Cal.App.3d 979, 985-986 [(Taylor)] . . . .) But defendant argues such reasoning is incompatible with the Supreme Court's decision in [Jones, supra,] 54 Cal.4th [at p.] 358 . . . , holding that '[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law.' " (Lujano, at pp. 190-191.)
We concluded that "We need not decide whether Taylor and similar cases have any continuing vitality after Jones. The trial court stated when taking defendant's plea that it was inclined to apply section 654, because the counts involved the same firearm, and acknowledged during sentencing that counts 4 [receiving stolen property] and 5 [felon in possession of a firearm] related to 'essentially . . . one [and] the same act.' We agree with the People that the trial court implicitly found defendant harbored only a single intent, so the reasoning of Taylor could not apply. The sentence on count 5, therefore, should have been stayed, rather than imposed as a concurrent sentence. (Jones, supra, 54 Cal.4th at p. 353.)" (Lujano, supra, 229 Cal.App.4th at p. 191.)
In this case, an officer located a loaded and operational .45-semiautomatic handgun during a probation search of defendant's car. A records check revealed that the firearm had been reported stolen. Defendant was charged with crimes relating to the possession of that gun, namely, unlawful possession of a firearm (§ 29800, subd. (a)(1); count 1), unlawful possession of ammunition (§ 30305, subd. (a); count 2), receiving stolen property (§ 496, subd. (a); count 3), and unlawfully carrying a loaded firearm in public (§ 25850, subd. (c)(6); count 4). At sentencing, the trial court imposed a four-year term on count 1 and concurrent terms on the remaining counts.
Jones and Atencio are dispositive here. As in Jones, the trial court should have stayed punishment on count 2 for unlawfully possessing ammunition and count 4 for unlawfully carrying a loaded firearm in public. The ammunition was loaded into the firearm and was located in defendant's vehicle and therefore were an indivisible course of conduct as to the offense of felon in possession of a firearm (count 1). (Jones, supra, 54 Cal.4th at p. 357.) Furthermore, as in Atencio, defendant committed the crimes of receiving stolen property as alleged in count 3 and felon in possession of a firearm with a single purpose, to possess that firearm. Like in Atencio, "what we have here is a course of conduct pursuant to one criminal objective—to possess the gun—and based on that there is but one act that can be punished under section 654." (Atencio, supra, 208 Cal.App.4th at p. 1245.)
We reject the People's position that Taylor applies in this case as to count 3 for receiving the stolen firearm. There is no evidence to support the People's position that defendant harbored a separate intent when he committed the crimes of receiving the stolen firearm and felon in possession of the firearm. The record does not show when or how long defendant was in possession of the firearm, or when he received the stolen firearm. Nonetheless, as in Atencio, "the only point" in acquiring the firearm—receiving it in the language of section 496, subdivision (a)—was to "gain possession" of it, so that he could sell it or do whatever else he may have wanted to do with it. (Atencio, supra, 208 Cal.App.4th at p. 1244, italics omitted.) The trial court here implicitly found defendant harbored only a single intent, so the reasoning of Taylor could not apply.
Accordingly, punishments on counts 2, 3, and 4 should have been stayed pursuant to section 654, rather than imposed as concurrent sentences. (Jones, supra, 54 Cal.4th at p. 353; Atencio, supra, 208 Cal.App.4th at p. 1245.)
IV
DISPOSITION
The judgment is modified to reflect that the sentences on count 2 for unlawful possession of ammunition, count 3 for receiving stolen property, and count 4 for unlawfully carrying a loaded firearm in public are stayed pursuant to section 654. The clerk of the superior court is directed to prepare an amended abstract of judgment to reflect these modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.