People v. Moore CA1/2

Filed 4/24/23 P. v. Moore CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A165407 v. JOSHUA MOORE, (Lake County Super. Ct. No. CR957436) Defendant and Appellant.

BACKGROUND On October 15, 2020, the Lake County District Attorney filed an information charging appellant Joshua Moore with entering a residence with the intent to burglarize it, a felony, in violation of Penal Code1 section 459 (count one), and receiving stolen property, a misdemeanor, in violation of section 496, subdivision (a) (count two). The information alleged that count one was a serious violent felony (§§ 1192.7, subd. (c), 667.5, subd. (c)), and also a violation of section 462, subdivision (a). On January 20, 2021, Moore entered a negotiated plea under which he pled no contest to count one in exchange for dismissal of count two. The plea agreement provided for Moore to be placed on probation for three years, with

1 All further undesignated statutory references are to the Penal Code.

1

a custody term of up to one year in county jail. On motion of the prosecutor, and pursuant to the plea agreement, the court dismissed count two, and continued the matter to February 16 for sentencing and referred the case to probation for a presentencing report. On February 16, the court referred the matter to veteran’s court for an eligibility determination, and the sentencing date was continued, later to be continued again to April 26. During the process of determining Moore’s eligibility for veteran’s court, defense counsel requested that Moore be released on his own recognizance. And at the April 26 hearing, the court agreed to that release under two conditions: first, that Moore successfully participate in veteran’s court; and second, that Moore enter a Cruz waiver. (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).) Moore agreed, at which time the court told him that in the event the court withdrew its approval of the plea because of his failure to appear, the plea would become an open plea and “you will not be allowed to withdraw your plea.” The pertinent colloquy between the court and Moore regarding the Cruz waiver was as follows: “THE COURT: Okay. The People do have a concern that he’s not going to appear in court. That’s a fair concern. I would be inclined to OR [own recognizance] him on two conditions, one, that he successfully participate in veteran’s court and comply with all rules and follow all directives of the veteran’s court program. And number two, that he enter into a Cruz waiver concerning both his effective participation in veteran’s court and appearances at all future court dates meaning that if he fails to appear or doesn’t participate in veteran’s court, his plea will become an open plea rather than a promised grant of probation. Any thought concerning that? [¶] . . . [¶]