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H045940 (Cal. Ct. App. Nov. 8, 2018)



THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERTO MUNOZABONCE, Defendant and Appellant.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1634028)

Defendant Luis Alberto Munoz admitted probation violations. The trial court imposed a two-year sentence. On appeal, defendant's counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant notifying him of his right to submit a written argument on his own behalf on appeal, which he has done.

Defendant's last name also appears in the record as Munozabonce, Abonce, and Munoz Abonce.

As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.) And we discuss defendant's "contentions and the reasons that they fail . . . ." (Id. at p. 120.)

We will modify the judgment to correct errors in the award of presentence credits and the amount of restitution ordered and, concluding that there are no other arguable issues on appeal, affirm the judgment as modified. I. BACKGROUND

On our own motion, we take judicial notice of the record in People v. Aboncemunoz (Apr. 19, 2018, H044954) [nonpub. opn.], defendant's appeal to this court following his underlying conviction. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

Defendant stole or drove without authorization a work van belonging to the County of Santa Clara, Roads and Airport Department. The vehicle was recovered by law enforcement, but property belonging to the County and to two County employees, Jasiel Malpica and Justin Gray, was missing.

On November 15, 2016, defendant pleaded no contest to felony unlawful driving or taking of a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)). His plea agreement called for a one-year jail sentence to be served on the electronic monitoring program (EMP), "PTOR" (probation terminated on release). The plea agreement also included a Cruz waiver stating: "I understand if I willfully fail to appear for future court dates, I will lose the benefit of any plea agreement. The sentencing judge could then impose a different or greater punishment up to the maximum possible sentence, and I would not be allowed to withdraw my plea because of that different or greater punishment." Defendant initialed beside the Cruz waiver on the plea agreement form. In addition, prior to accepting defendant's plea, the trial court judge explained to defendant that the Cruz waiver "means . . . you promise . . . to show up at the time of sentencing . . . ." Defendant acknowledged he understood the waiver.

"In People v. Cruz (1988) 44 Cal.3d 1247, [the California Supreme Court] interpreted the provision of [Penal Code] section 1192.5 that permits a defendant who pleads guilty or nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. [The court] held that this provision applies even if the defendant fails to appear for sentencing. [The court] noted in a footnote, however, that a defendant could expressly waive his or her rights under section 1192.5 at the time the plea was entered. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)" (People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2.)

Defendant failed to appear at his March 16, 2017 sentencing hearing. He appeared on June 1, 2017. At that time, the prosecutor explained that, given the Cruz waiver and defendant's failure to appear for sentencing, "the deal is now gonna be changed from his original PTOR, one year EMP to formal felony probation, one year in county jail." Also at that hearing, defense counsel agreed that "Arbuckle is waived."

Under People v. Arbuckle (1978) 22 Cal.3d 749, 756-757, an implied term of every plea bargain is that the judge who accepts the plea will be the judge who pronounces sentence. (K.R. v. Superior Court (2017) 3 Cal.5th 295, 312.) That right may be expressly waived. (Ibid.)

On June 23, 2017, the court placed defendant on three years' formal probation. Defendant stipulated to $4,366.94 in restitution to the County of Santa Clara, Roads and Airport Department; $260 to Jasiel Malpica; and $647.98 to Justin Gray, and the court ordered restitution in those amounts.

On May 31, 2018, a petition for modification of terms of probation was filed in Santa Clara County Superior Court, alleging the following probation violations: (1) March 5, 2018 violations of Vehicle Code section 4462.5 (display or presentation of registration, identification card, or license plate not issued for the vehicle with the intent to avoid compliance with vehicle registration requirements) and Health and Safety Code section 11364 (possession of drug paraphernalia); (2) March 22, 2018 violations of Vehicle Code sections 20002 (hit and run) and 10851 (felony unlawful driving or taking of a vehicle without the owner's consent); (3) April 2, 2018 violations of Penal Code sections 466 (possession of burglary tools) and 496 (receiving of stolen property); (4) knowingly being present where drugs are sold; (5) failure to provide proof of enrollment in or completion of a substance abuse counseling program; and (6) failure to provide proof of enrollment in an educational or vocation training program or of employment.

Further statutory references are to the Penal Code unless otherwise indicated.

At a May 31, 2018 hearing, defendant waived his rights and admitted the violations set forth in the petition. The trial court imposed the midterm sentence of two years pursuant to section 1170, subdivision (h). The court awarded defendant a total of 521 days of presentence credits, consisting of 261 days of actual custody and 260 days of conduct credits under section 4019. The court imposed the previously suspended $300 probation revocation restitution fine (section 1202.44). The court ordered that the abstract of judgment include all previously imposed fine, fees, and assessments and noted that victim restitution in the amounts of $4,366.95 to the Santa Clara County Roads and Airport Division, $260 to Jasiel Malpica, and $647.98 to Justin Gray may be collected civilly.

Defendant timely filed a notice of appeal on June 20, 2018.


Defendant's written argument raises several contentions. First, defendant claims the clerk erred in calculating credits, although he does not explain the nature of that error. Based on our independent review of the record, we agree that there was an error with respect to the calculation of defendant's presentence credits. The record indicates defendant is entitled to 263 days of actual custody credit, two more days than the court awarded. Section 4019 provides that a person confined prior to sentencing may earn two days of conduct credit for every two days served. (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1212.) Therefore, defendant was entitled to 262 days of conduct credit, for a total of 525 days of total credit. We will modify the judgment accordingly.

We requested supplemental briefing from the parties as to whether the trial court erred in determining the number of days defendant was in custody for purposes of calculating his presentence credits. The Attorney General concedes error and agrees that defendant is entitled to 263 days of actual custody credit and 262 days of conduct credit. Defendant's appointed counsel did not file a supplemental letter brief.

Second, defendant asserts that he disagreed with the amount of restitution awarded and "should have had rights to set a court relating this." Defendant stipulated to $4,366.94 in restitution to the County of Santa Clara, Roads and Airport Department; $260 to Jasiel Malpica; and $647.98 to Justin Gray. The court ordered restitution in those amounts on June 23, 2017. On May 31, 2018, the court reaffirmed the prior restitution order, but it mistakenly overstated the amount awarded to the County of Santa Clara, Roads and Airport Department by a penny. Plainly, defendant is not entitled to challenge the restitution amounts, having stipulated to them. However, we will modify the judgment to reduce the amount of restitution to the County of Santa Clara, Roads and Airport Department from $4,366.95 to $4,366.94.

Third, defendant asserts that, at some point, the judge "was not respecting the plea agreement" and he expressed a desire to withdraw his plea. To the extent defendant is attacking the validity of his plea, that attack fails for multiple reasons: he did not file a motion to withdraw his plea in the trial court, he did not raise the issue in his earlier appeal following his conviction, and he did not obtain a certificate of probable cause. (See People v. Turner (2002) 96 Cal.App.4th 1409, 1412 [defendant forfeited appellate review of claim that his guilty plea was not knowingly and intelligently made by failing to move to withdraw his plea in the trial court]; § 1237.5 [certificate of probable cause is required for an appeal which challenges the validity of a plea].)

Fourth, defendant says the Cruz waiver violation caused him "to lose EMP program but probation should not have been granted." Defendant's plea agreement called for a one-year jail sentence to be served on EMP with probation terminated on release. It also included a Cruz waiver allowing the sentencing judge to impose different or greater punishment than that called for by the plea agreement if defendant willfully failed to appear for future court dates. Given defendant's failure to appear at his March 16, 2017 sentencing hearing, the sentencing court was entitled to impose the different punishment of formal felony probation.

Fifth, defendant requests a trial before this court to prove his innocence. But a plea of guilty or no contest "precludes appellate consideration of issues related to guilt or innocence . . . ." (People v. Palmer (2013) 58 Cal.4th 110, 114.)

Finally, defendant suggests the case should be dismissed through "the Hobbs motion." The phrase "Hobbs motion" generally refers to a motion to unseal and traverse or quash a sealed search warrant pursuant to Hobbs, supra, 7 Cal.4th 948. No such motion has been filed in this case, which did not involve a sealed search warrant; nor is such a motion a means by which to dismiss an appeal.

People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). --------

Having examined the entire record, we conclude that no arguable issues on appeal exist, aside from the errors noted above.


The judgment is modified (1) to reflect an award of 263 days of actual custody, 262 days of conduct credits, and 525 total days of presentence credits and (2) to reduce the amount of restitution to the County of Santa Clara, Roads and Airport Department from $4,366.95 to $4,366.94. As so modified, the judgment is affirmed. The Superior Court is directed to prepare an amended abstract of judgment that reflects the correct award of presentence credits and restitution order and to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation.


ELIA, ACTING P. J. WE CONCUR: /s/_________

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