People v. McBride CA3

Filed 4/14/16 P. v. McBride CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C077484

v. (Super. Ct. No. 13F7890)

CHARLES MILNE MCBRIDE, JR.,

Defendant and Appellant.

Defendant Charles Milne McBride, Jr., pleaded no contest to being a felon in possession of a firearm. After the trial court found defendant in violation of his Cruz1 waiver, the court sentenced him to serve 16 months in state prison. Defendant appeals. Defendant’s sole contention on appeal is that the trial court violated his plea agreement “because the record contains no evidence that [defendant’s] failure to appear was willful.” We conclude the record contains no evidence regarding the willfulness of defendant’s failure to appear because defendant declined the trial court’s invitation to

1 People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).

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hear argument regarding his Cruz waiver violation. Accordingly, defendant has forfeited his right to raise the issue on appeal. We affirm the judgment. BACKGROUND2 Defendant pleaded no contest to being a felon in possession of a firearm. In exchange, the People agreed defendant would be granted probation. As part of the negotiated plea agreement, the People agreed defendant could be released on his own recognizance and defendant agreed if he failed to appear for his probation interview or for sentencing, “the plea [would] remain intact but the sentence [would] not.” The trial court would then be free to sentence defendant to the “maximum sentence allowed by law on the charge(s) to which [he] . . . pled.” On January 28, 2014, defendant failed to appear for his pre-sentence interview with the probation department and defendant’s probation officer was unable to locate him. Then, on February 25, 2014, defendant failed to appear for sentencing. Accordingly, the trial court revoked defendant’s release on his own recognizance and issued a warrant for his arrest. Defendant was subsequently arrested and brought to court for sentencing on June 25, 2014. The trial court advised defendant as follows: “This is the time and place set for sentencing. Before I ask if you want to proceed I can tell you this. My review of the file indicated that [defendant] had failed to appear at sentencing. There was a Cruz waiver. So any negotiated dispositions no longer apply. My indication is to sentence him to 16 months state prison. The recommendation was for probation. You want to proceed with argument with that indication or you want to set a hearing or what would you like to do? “[DEFENSE COUNSEL]: Let’s set a hearing, Your Honor.