People v. Smith CA2/1

Filed 3/23/16 P. v. Smith CA2/1 Received for posting 3/24/16 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.