Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 03F03671, 05F11205
RAYE, J.
One spring evening, officers responded to an uncompleted 911 call from defendant Joseph Hebert’s residence. Defendant admitted he had earlier smoked “speed” and told officers his kitchen contained drugs. Two years later, on Christmas Eve, defendant repeatedly made harassing phone calls to a 911 operator, requesting sexual favors and threatening to kill the President. When officers took defendant into custody, they found a small baggie of methamphetamine.
Defendant’s surname is misspelled “Herbert” on the abstract of judgment.
The first incident resulted in a complaint charging defendant with possession of cocaine base, being under the influence of a controlled substance, and possession of drug paraphernalia. (Health and Saf. Code, §§ 11350, 11550, subd. (a), 11364.) Defendant entered a plea of no contest to possession of cocaine base. The trial court granted defendant probation on the condition he complete a Proposition 36 drug treatment program. (Pen. Code, § 1210.1.)
The second incident resulted in an information charging defendant with felony possession of methamphetamine and misuse of a 911 emergency line. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 653x.) Defendant entered a negotiated plea of no contest.
After defendant failed to appear, the court sentenced him to three years in state prison. Defendant appeals, arguing he must be allowed to withdraw his plea pursuant to Penal Code section 1192.5. We conclude defendant is precluded from challenging his sentence because he failed to obtain a certificate of probable cause and shall dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2003 officers were dispatched to defendant’s residence in response to an incomplete 911 call. The caller yelled profanities and said he wanted to “get the bitch in his sights.” After officers arrived, one of them recognized defendant from a previous encounter. Defendant appeared to be under the influence of narcotics. He admitted smoking speed that afternoon and told officers his kitchen contained drugs. Officers found a tinfoil smoking pipe in defendant’s pocket and seized .13 gram of cocaine base.
On Christmas Eve of 2005 officers responded to reports of harassing phone calls to a 911 operator emanating from defendant’s residence. In the calls, defendant requested sexual favors from the dispatcher, threatened to kill the President, and claimed to be employed by the California Highway Patrol and the American Consulate. Defendant refused to stop calling 911, even after being advised that his calls were not of an emergency nature. When officers took defendant into custody, they discovered a small baggie containing .97 gram of methamphetamine in his pocket.
In case No. 03FO3671, stemming from the April 2003 incident, a complaint charged defendant with possession of cocaine base, being under the influence of methamphetamine, and possession of drug paraphernalia. Defendant entered a plea of no contest to possession of cocaine base.
The trial court placed defendant on four years’ formal probation and ordered him to serve 240 days in the county jail, to be suspended pending successful completion of a Proposition 36 program. Defendant later requested deletion of the Proposition 36 program requirement and was remanded to serve his jail sentence.
Two years later, in case No. 05F11205, an information charged defendant with possession of methamphetamine and misuse of a 911 emergency line. The information also alleged defendant had been convicted of a strike prior under Penal Code sections 667, subdivisions (b) through (i) and 1170.12. The court revoked defendant’s probation in case No. 03F03671. The trial court also granted defendant’s request to represent himself.
All further statutory references are to the Penal Code unless otherwise indicated.
Appearing in propria persona at a hearing on his own motions, defendant announced that he and the district attorney had discussed plea arrangements and he was prepared to enter a plea. Thereafter, the court inquired about the terms of the plea and the prosecutor described the offer. The court then explained the sentencing process, including the necessity of a probation report, whereupon defendant explained that his decision to plead was because of his impending eviction and that he needed to be released from custody. The court asked the prosecutor about defendant’s criminal history, after which the following colloquy ensued:
“The Court: Mr. Hebert, I need to know what you’re going to do today. [¶] Are you going to enter a plea, or do you want me to hear your motion to compel?
“The Defendant: Well, I would say this, Your Honor: [¶] I would be more than willing to forego, as far as entering the plea, if the district attorney or the People would not oppose an OR in the interrum [sic] of the sentencing, and I
“The Court: That offer was to the People. [¶] . . . [¶] . . . I could require a Cruz waiver. [¶] . . . [¶] All right. Mr. Hebert, here’s what I will do, because it’s the Judge that has to release you. It’s not the prosecutor. [¶] . . . [¶] If I release you, following your entry of plea, I would require what is referred to as a Cruz waiver.
“The Defendant: Okay.
“The Court: In other words, I would let you out, if you agree that at sentencing, if you failed to show up, then you go to prison for sixteen months.
“The Defendant: Absolutely, Your Honor. [¶] I would -- I was going to say the high term. I would be willing to take the high term.
“The Court: All right. We’ll call it three years if you’re willing to accept the high term.
“The Defendant: If I am willing to . . . this is only based upon the fact that I do not appear at the sentencing?
“The Court: Correct.
“The Defendant: Okay. Absolutely, Your Honor.
“The Court: I need a guarantee you will come back.
“The Defendant: Yes, that’s a guarantee, Your Honor.
“The Court: You’re willing to enter a Cruz waiver for the upper term of three years? [¶] . . . [¶]
“The Defendant: Provided I get released today.
“The Court: Are you prepared to enter a plea on the charges on the conditions stated by the prosecutor, sir?
“The Defendant: Yes, Your Honor. [¶] However, there is one exception. The -- since the threats or the information is hearsay in the police report concerning those alleged statements of killing the President and the sexual favors, I would ask that those be omitted. [¶] I do plead to the charge.
“The Court: Omitted?
“The Defendant: Well, not so much omitted. Those are facts that have not been sustained or proven, is what I am saying.
“The Court: You’re saying out of the complaint. [¶] How is the complaint plead [sic]? Is it fact specific?
“Mr. Trudgen [prosecutor]: I don’t believe so, Your Honor.
“The Court: Let me see the complaint.
“Mr. Trudgen: Although it would be included in the factual basis.”
The trial court then advised defendant of his constitutional rights. Defendant entered his plea. The trial court then informed defendant he was to return on April 11. The court continued: “Now, I will release you on your own recognizance pending judgment and sentencing, but I am going to take from you what I call a Cruz waiver, that is, if you do not show up on April 11 . . . you agree that the confinement that you will suffer automatically is the upper term of three years in State Prison, sir?” Defendant responded: “Yes, Your Honor, by all means.”
Defendant entered a plea of no contest to both counts with the promise he would serve one year in the county jail and not be sent to state prison. He was released from custody pending his sentencing.
Defendant failed to appear for sentencing and the court issued a bench warrant. Thereafter, he was taken into custody and the court sentenced him to three years in state prison. The court also found defendant violated his probation in case No. 03F03671 and sentenced him to a concurrent sentence.
Sentencing took place on April 17, 2006. Defendant filed notices of appeal on December 20 and 27, 2006, and January 31, 2007. Citing Penal Code section 1192.5, defendant argues he must be permitted to withdraw his plea; the court erred in sentencing him for violating a condition that was not part of his plea bargain.
DISCUSSION
Defendant contends that the purported “Cruz waiver” extracted by the trial court was not a valid part of his plea bargain but was a sanction “engrafted” onto the plea. Therefore, defendant contends, he must be allowed to withdraw his plea in accordance with section 1192.5 relating to negotiated pleas and cases decided thereunder. (See, e.g., People v. Cruz (1988) 44 Cal.3d 1247, 1249-1250 (Cruz).)
Defendant claims we can reach this claim on appeal despite the lack of a certificate of probable cause because he is not challenging the plea bargain with the prosecutor but only the trial court’s engrafted Cruz waiver, which it subsequently used to impose an enhanced sentence without first informing the defendant of his rights under section 1192.5. We conclude defendant’s claim cannot be reached on appeal in the absence of a certificate of probable cause. Accordingly, we shall dismiss the appeal.
“A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon” must fully comply with section 1237.5 and rule 8.304(b) of the California Rules of Court, which require that the defendant secure a certificate of probable cause in order to challenge the validity of the plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1088.) In the absence of full compliance and a certificate of probable cause, the reviewing court may not reach the merits of any issue challenging the validity of the plea, but must order dismissal of the appeal. (Id. at p. 1099.) The California Supreme Court has expressly disapproved the practice of applying the rule loosely in order to reach issues that would otherwise be precluded. (Id. at pp. 1098-1099.)
In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, we must look to the substance of the appeal. The crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. Therefore, we focus on whether defendant’s challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. (People v. Buttram (2003) 30 Cal.4th 773, 781-782.)
Accordingly, when a defendant raises a claim that a negotiated sentence is unconstitutional or that the trial court lacked authority to impose the negotiated sentence, the challenge is, in substance, an attack on the validity of the plea, requiring a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 769-771; People v. Panizzon (1996) 13 Cal.4th 68, 79.) However, a certificate of probable cause is not required where a 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. Kaanehe (1977) 19 Cal.3d 1, 8.)
In People v. Vargas (2007) 148 Cal.App.4th 644 (Vargas), the defendant challenged the court’s imposition of the upper term after he violated his Cruz waiver. The appellate court determined: “When the issue on appeal challenges the defendant’s sentence following a guilty plea or plea of nolo contendere, the determining factor in deciding whether the issue arose before entry of the plea such that a certificate of probable cause is required is whether the plea agreement specifies a particular sentence or whether it specifies a sentence range. . . . In other words, if the defendant agreed to a specific sentence as part of his plea agreement the sentence is an issue that arose before entry of the guilty plea, and in order to challenge that sentence on appeal, the defendant must obtain a certificate of probable cause.” (Id. at pp. 651-652.)
On the facts before it, the court in Vargas found the trial court expressly advised the defendant that if he violated the terms of the Cruz waiver, the trial court would sentence him to the maximum term of eight years. The defendant confirmed he understood and agreed to the sentence as part of the Cruz waiver. According to the Vargas court: “The Cruz waiver in turn was an integral part of defendant’s plea agreement. Therefore, defendant’s challenge to the agreed-upon sentence is a challenge to the validity of his plea and such a challenge requires a certificate of probable cause.” (Vargas, supra, 148 Cal.App.4th at p. 652.)
The same result obtains in the present case. Here, the trial court expressly advised defendant that if he failed to appear, the trial court would sentence him to three years. Defendant confirmed that the sentence would only be imposed if he failed to appear at the sentencing and agreed unequivocally. The court then sentenced defendant. As in Vargas, the Cruz waiver was an integral part of defendant’s plea agreement and defendant’s challenge to the agreed-upon sentence is a challenge to the validity of his plea, requiring a certificate of probable cause. Since defendant failed to obtain a certificate of probable cause, we shall dismiss his appeal.
Disposition
The appeal is dismissed.
We concur: DAVIS , Acting P.J. ROBIE , J.