People v. Davis CA4/1

Filed 7/29/24 P. v. Davis CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D084030

Plaintiff and Respondent,

v. (Super. Ct. No. BAF2001078)

MATTHEW LEE DAVIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Joshlyn R. Pulliam, Judge. Affirmed. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Heather B. Arambarri and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent. Matthew Lee Davis appeals a judgment imposing the upper-term sentence pursuant to a plea agreement. He contends the trial court erred by (1) failing to find a “willful” violation of his waiver under People v. Cruz

(1988) 44 Cal.3d 1247 (Cruz), and (2) denying him the opportunity to explain why he failed to appear for sentencing. We conclude Davis forfeited both claims by not asserting them before the trial court. Even on the merits, we conclude the trial court implicitly found a willful violation of the Cruz waiver. We further conclude Davis had a meaningful opportunity to explain why he failed to appear for sentencing. We thus affirm. I. Relevant here, in September 2022, Davis pled guilty to two counts: discharging a firearm at an occupied motor vehicle (Pen. Code, § 246; count 1) and discharging a firearm in a grossly negligent manner (§ 246.3; count 3). His plea agreement included a Cruz waiver, under which Davis would receive a total term of three years if he surrendered for sentencing on November 7, 2022, but the upper term of seven years on count 1 if he willfully failed to appear for sentencing. On November 7, Davis appeared for his sentencing hearing. However, the parties stipulated to continue the sentencing hearing to December 14, given Davis’ girlfriend was pregnant and “experiencing complications.” The court granted the request, but confirmed with Davis, “Obviously, you know what the risk is if you don’t show up on December 14th; right? . . . You’d be looking at the maximum sentence.” Davis indicated he understood. Nonetheless, Davis did not appear on December 14, and the court issued a bench warrant. Davis, in custody, appeared at his September 2023 sentencing hearing. The court noted that it, Davis, and his counsel had “discussions in chambers about [his] matter[ ],” at which time the court “was informed that [Davis] had some family issues with the birth of [his] child last year.” However, the court emphasized that Davis “didn’t make it back to court and . . . didn’t contact