People v. Washington CA2/6

Filed 11/25/20 P. v. Washington CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B302999 (Super. Ct. No. 17CR08048) Plaintiff and Respondent, (Santa Barbara County)

v.

ARVAN WASHINGTON,

Defendant and Appellant.

Appellant Arvan Washington pled no contest to one count of resisting an executive officer (Pen. Code, § 69)1 in exchange for four years of felony probation. Appellant was released on a Cruz2 waiver, in which he agreed that if he “fail[ed] to appear on the date set for sentencing” or “pick[ed] up any new law offenses,” he would not be allowed to withdraw his plea and would be subject to the maximum sentence allowed.

1 All further statutory references are to the Penal Code. 2 People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).

The sentencing hearing was set for October 11, 2018. Appellant appeared that morning, but the hearing was continued to October 16, 2018 because of a medical appointment. The trial court issued and held a “no bail” warrant to that date. Appellant failed to appear at both that hearing and the hearing rescheduled for October 18, 2018. The court released the warrant. Appellant was arrested for the commission of a new felony offense on February 22, 2019. On February 26, 2019, he appeared in custody for arraignment on the warrant in this case. Following multiple continuances, the sentencing hearing took place on October 29, 2019. Given appellant’s failure to appear and his new arrest, the trial court determined it was not bound by the original plea agreement and sentenced him to the maximum term of three years in prison. Appellant contends the trial court abused its discretion and violated his due process rights by revoking his probation based on a violation of the Cruz waiver. The People argue substantial evidence supports the finding that appellant violated the terms of the agreement by failing to appear for sentencing on October 16 and 18, 2018 and by “pick[ing] up . . . new law offenses.” We accept the People’s concession that appellant is entitled to a remand for recalculation of his custody credits. Otherwise, we affirm. DISCUSSION Cruz Waiver Section 1192.5 permits a defendant to withdraw a plea if the trial court withdraws its approval of the plea agreement. In Cruz, our Supreme Court held that the defendant retains this ability even if the trial court’s disapproval of the plea agreement was prompted by the defendant’s failure to appear for sentencing. (Cruz, supra, 44 Cal.3d at pp. 1253-1254.)