Filed 3/23 /16 P. v. Smith CA2/1

Received for posting 3/24/16

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and R espondent,

v.
SCOTT SMITH,
Defendant and Appellant. B248357
(Los Angeles County Super. Ct. No. NA091592 )

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J. Ferrari, Judge. Reversed.

______ Steven A. Brody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

______2

Pursuant to a plea bargain, d efendant Scott Smith pleaded no contest to a charge of possession of methamphetamine for sale and admitted a firearm allegation in exchange
for a five

- year priso n sentence. At the time the court accepted t he plea, it did not obtain a

so

- called Cruz 1 waiver from defendant. When the defendant thereafter failed to appear for sentencing, the court sentenced defendant to eight years in prison and denied defendant’s r equest to withdraw his plea. Defendant contends that the court erred by imposing a sentence greater than the term of the plea bargain without allowing him to withdraw his plea. The Attorney General does not disagree. We agree and reverse.

FACTUAL AND PR OCEDURAL SUMMARY An information charged d efendant with possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378); possession of a controlled substance while armed with a firearm (count 2; Health & Saf. Code, § 11370.1 , subd. (a) ); bein g a felon in possession of a firearm (count 3; Pen. Code, § 29800, subd. (a)(1) ) ; 2 and being a felon in possession of ammunition (count 4; § 30305, subd. (a)(1)). The information further alleged that he was personally armed with a firearm and had been pre viously convicted of possession of a controlled substance for sale. (§ 12022, subd. (c); Health & Saf. Code, §§ 11370.2, subd. (c), 11378.) His maximum potential sentence was 12 years 4 months. On August 14, 2012, pursuant to a negotiated plea agreement with the District Attorney and approved by the court , defendant pleaded no contest to count 1 and admitted the firearm allegation in exchange for dismissal of the other charges and a
sentence of five years in state prison

. The court a dvised defendant of his constitutional rights , which defendant expressly waived
, then accepted the defendant’ s plea and
, based

on stipulated facts
, convicted him of count 1 and found the firearm allegation true

. Th e court dismissed the remaining counts

.

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

. 2 All subsequent statutory references are to the Penal Code unless otherwise indicated.3

After accepting the plea, t he court ordered defendan t to return for sentencing

on October 4, 2012 , and informed defendant: “[I]f you fail to appear on that date,
the five[] years is off the table and you’re looking at the maximum time in custody.
It’s absolutely, unequivoca lly essential that you . . . appear on that date. ” Defendant said
he understood. Defendant failed to appear for sentencing on October 4, 2012 , and t he court issued

a bench warrant. In November 2012, defendant was arrested and the court ordered him held without
bail. On February 22, 2013, in the presence of defendant, the court sentenced him

to eight years in prison, consisting of the high term of three years o n count 1, plus
the high term of five years on the firearm allegation. The court told defenda nt it was impos ing the high terms because: “You were told at the time of the plea if you failed to appear that date, the plea bargain was gone and you wo uld receive the maximum time
in custody. And not only did you not appear on the date, you managed to get yourself arrested on another offense.”
Defendant apologized for not returning to court on October 4, 2012, and explained: “I was distraught, I was on drugs, I wasn’t thinking clearly
, ” and said he did
not understand what he had admitted

. The court d enied his request to withdraw his plea.
Defendant filed a notice of appeal , and the court d enied his request for a certificate of probable cause. 3

3 In his notice of appeal, filed by defendant in pro. per. , defendant argued that he is enti tled to withdraw his plea because his counsel was constitutionally deficient in advising him to accept the plea deal. He does not assert this argument in his brief on appeal.4 DISCUSSION
Under section 1192.5, when a defendant’s “ plea is accepted by the prosecuting attorney in open c ourt and is approved by the court, the defendant, except as otherwise provided in [that] section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specifi ed in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of ju dgment, withdraw its approval in the light of further consideration of the matter, and (3) in that

case, the defendant shall be permitted to withdraw his or her plea if he or she desires to
do so .” (Italics added.)
In Cruz , our Supreme Court held that when a defend ant enters a plea pursuant

to a plea agreement and the court subsequently withdraws its approval of the agreement because the defendant failed to appear at the sentencing hearing, the defendant retains
the right to withdraw his or her plea . ( Cruz , supra , 44 Cal.3d at pp. 1250, 1254 ; see People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2 .) In this case, defendant entered a plea pursuant to a plea agreement, which the court approved . Defendant thereafter failed to appear at the sentencing hearing and, on that basis, the court withdrew its approval
of the agreement . It proceeded to impose a sentence greater than the terms of the plea agreement without allowing defendant to withdraw his plea. Under Cruz , t his was error.
As Cruz acknowledg ed, a defendant can waive the pro tections provided by
section 1192.5. ( Cruz , supra , 44 Cal.3d at p. 1254, fn. 5.) Here, however, the
defendant did not waive that right. Instead, a s the Attorn ey General concedes, “the

court unilaterally imposed a sanctio n for nonappearance at sentencing”; “[t]he court never explained the meaning of a Cruz waiver to defendant, nor was defendant provided with a statement of his rights under section 1192.5, including, most importantly, his right
to with draw his plea if the c ourt chose not to sentence in accordance with the plea bargain.”5

Defendant contends that we should order specific performance of the plea agreement and direct the trial court to sentence defendant in accordance with the agreement. We disagree. Upon rema nd, the court has the option to withdraw approv al
of the plea agreement. (See People v. Kim (2011) 193 Cal.App.4th 1355, 1365 .) If it disapproves the agreement, it must give defendant the option of withdrawing his plea. ( Ibid. ) Finally, we agree with defendant that his appeal is not precluded by his failure to obtain a certificate of probable cause . Such a certificate is not required when, as here, the “defendant does not challenge the original validity of the plea but asserts that errors were
committ ed in proceedings subsequent to the plea for the purpose of determining the penalty to be imposed.” ( People v. Kaaneha (1977) 19 Cal.3d 1, 8; see also People v. Hernandez (2008) 166 Cal.App.4th 641, 646 [ “ A postplea question not challenging the validity o f a guilty plea is a noncertificate issue that may be raised on appeal after a guilty or no contest plea without a certificate of probable cause

. ”]. )
DISPOSITION The judgment is reversed.
NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J. We concur:

CHANEY, J.

LUI, J.