People v. Sallee CA5

Filed 5/13/21 P. v. Sallee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080805 Plaintiff and Respondent, (Super. Ct. No. 19CR-05532) v.

WILLIAM FLOYD SALLEE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Detjen, J. and Snauffer, J.

Defendant William Floyd Sallee pled no contest to residential burglary and admitted a prior felony strike conviction within the meaning of the “Three Strikes” law. After his plea, defendant entered a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), whereby he was permitted to remain free of custody until his sentencing with the understanding that, if he failed to appear at the sentencing hearing, an additional four years would be added to his sentence. Defendant failed to appear for sentencing and the court imposed the greater sentence—12 years rather than eight years. On appeal, defendant contends that the greater sentence must be vacated because the record does not support a finding that defendant’s failure to appear was willful. We conclude that the trial court did not make the required determination regarding whether defendant’s failure to appear was willful. We vacate the sentence and remand to the trial court to determine whether defendant’s failure to appear was willful. PROCEDURAL SUMMARY On October 1, 2019, the Merced County District Attorney charged defendant with felony residential burglary (Pen. Code, § 459;1 count 1) and dissuading a witness (§ 136.1, subd. (b)(1); count 2). The complaint further alleged that he had suffered two prior felony “strike” convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), which also qualified as prior serious felony convictions (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)). On December 9, 2019, the trial court struck the older of defendant’s two prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. On the same date, defendant pled no contest to count 1 and admitted having suffered a prior strike conviction. In exchange for the plea, count 2 and the remaining enhancements were dismissed. The court further indicated a sentence of eight years (the