People v. Mercado CA1/4

Filed 6/7/22 P. v. Mercado CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A162629 v. JERICHO PARRISH MERCADO, (Contra Costa County Super. Ct. No. CRF20-9186) Defendant and Appellant.

Pursuant to a plea agreement, defendant Jericho Parrish Mercado pled guilty to one count of first degree burglary in return for a stipulated two-year sentence. As part of the plea, defendant agreed to a so-called Cruz1 waiver, pursuant to which he was released from custody in return for his promise, among other things, to return for sentencing or face a maximum term sentence which in this case would be six years. After defendant twice failed to appear at sentencing, the court found defendant in violation of the waiver and sentenced him to the maximum term. On appeal, defendant contends there is no substantial evidence that he willfully violated the terms of his Cruz waiver. We agree and shall reverse.

1 People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 (Cruz).

1

Background On April 27, 2020, around 6:45 a.m., defendant’s mother called the police asking for help because defendant, her son, had broken into her home. She reported that defendant was yelling and breaking things inside her home. When defendant was detained and searched, the police officers found multiple knives and a throwing star or shuriken. Based on these events, defendant was charged with one count of first degree burglary (Pen. Code,2 § 460, subd. (a)) and one count of possession of a shuriken (§ 22410). In June 2020, defendant was found incompetent to stand trial and proceedings were suspended until his competence was restored in January 2021. On February 24, 2021, defendant pled guilty to first degree burglary. In exchange for his guilty plea, the prosecution dismissed the weapon charge, stipulated to a two-year sentence, and agreed to release defendant until sentencing provided that he enter a Cruz waiver stating that he could be sentenced beyond the two-year stipulated term if he did not appear at his sentencing hearing. On April 5, defendant did not appear for sentencing and the court issued a bench warrant. Defendant was arrested on April 8 on the warrant, then released when he promised in writing to appear in court at 8:30 a.m. on April 15. On April 15, defendant did not appear at the rescheduled sentencing hearing and the trial court issued another bench warrant. Defendant was arrested on April 20 and remained in custody until the May 3 sentencing hearing. At the May 3 hearing, the prosecutor told the court that after the sentencing hearing on April 5, the parties received an e-mail from the