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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 Respondent,

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, defendant 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 prison sentence. At the time the court accepted the plea, it did not obtain a 

so-called Cruz1 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 request 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 PROCEDURAL SUMMARY

An information charged defendant 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)); being 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 previously 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 advised 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. 

The 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, the court ordered defendant 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, unequivocally essential that you . . . appear on that date.” Defendant said 

he understood.

Defendant failed to appear for sentencing on October 4, 2012, and the 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 on count 1, plus 

the high term of five years on the firearm allegation. The court told defendant it was 

imposing 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 would 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 denied his request to withdraw his plea.

Defendant filed a notice of appeal, and the court denied 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 

entitled 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 court 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 

specified 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 judgment, 

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 defendant 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, this was error. 

As Cruz acknowledged, a defendant can waive the protections 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, as the Attorney General concedes, “the 

court unilaterally imposed a sanction 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 withdraw his plea if the court 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 remand, the court has the option to withdraw approval 

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 

committed 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 of 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.