Filed 2/10/15 P. v. Segura 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

ANTONIO HIGAREDA SEGURA,

Defendant and Appellant.

F066938

(Super. Ct. No. MCR037255)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. 

Rigby, Judge.

Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. 

Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Kane, Acting P.J., Poochigian, J. and Peña, J.
2

Defendant Antonio Higareda Segura entered into a plea agreement with a Cruz

waiver,1 which the trial court later determined he violated by illegally reentering the 

country. On appeal, he contends (1) the trial court erred by failing to make an explicit 

finding that his violation of the Cruz waiver was willful and (2) the trial court’s finding 

that he violated the Cruz waiver was not supported by substantial evidence. We affirm.

BACKGROUND

On July 4, 2009, an officer saw defendant driving a vehicle without a windshield. 

The officer followed defendant with lights activated. Defendant fled and a high-speed 

chase ensued. Defendant eventually stopped and ran away. When the officer caught up 

to him, defendant used force and violence to resist arrest, injuring the officer.

Defendant was charged with various crimes and initially pled not guilty. On 

February 19, 2010, he informed the trial court he wished to change his plea to guilty. The 

court explained that according to the plea agreement, he would be released pending 

sentencing and would be deported by United States Immigration and Customs 

Enforcement (ICE). The agreement was conditioned on his obeying all laws, including 

laws that forbade him from illegally returning to the United States after his deportation. 

If he violated the terms of the Cruz waiver and illegally returned to the United States, the 

stipulated term of six years four months would be imposed. If ICE failed to deport him, 

he would be required to appear in the probation department within 24 hours of his 

release. Under these terms, defendant pled guilty to felony evading an officer (Veh. 

Code, § 2800.2, subd. (a)), attempting to deter an executive officer by threats (Pen. Code, 

§ 69),2 and inflicting injury on a peace officer (§ 243, subd. (c)(2)), and he admitted 

serving two prior prison terms (§ 667.5, subd. (b)). On his plea agreement form, he wrote 

 

1 As we explain below, a Cruz waiver allows a defendant to waive his right to be 

sentenced pursuant to his plea agreement. (People v. Cruz (1988) 44 Cal.3d 1247, 1254, 

fn. 5 (Cruz); People v. Masloski (2001) 25 Cal.4th 1212, 1219-1224 (Masloski).)

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

that the plea was with a Cruz waiver and deportation. His release papers, which he also 

signed, stated that his release was conditioned on his obeying all laws, including that he 

not illegally reenter the United States.

The court set sentencing for March 22, 2010, and released him to ICE for 

deportation.

On March 22, 2010, defendant did not appear for sentencing and the court issued a 

bench warrant.

Two years later, on May 19, 2012, defendant was booked into the Madera County 

jail.

On August 27, 2012, the court held a hearing to determine whether defendant 

violated the Cruz waiver.

“THE COURT: And he is here for a hearing with regard to whether 

he violated the terms of a Cruz waiver. And it is my understanding the 

terms of the Cruz waiver—that he was to make and keep appointments with 

the probation officer within 24 hours of release, if not deported by [ICE], 

and the matter was referred to Probation. He failed to appear at the 

probation department for purposes of scheduling an appointment to assist in 

the preparation of their report.

“And according to the records of Madera County Department of 

Corrections, February 24 he was turned over to the custody of [ICE]. And 

there was no further contact with the defendant or any agent on his behalf 

to explain or excuse why he failed to appear. And then apparently 

[defendant] returned to the U.S., as he is here now. [¶] That is my 

understanding of the procedural posture of the case. [¶] ... [¶]

“[DEFENSE COUNSEL]: ... It’s my understanding that that was 

the agreement, and he is back here in the U.S. [¶] However, the only issue 

that I want to raise is that I believe he did 26 months in federal custody for 

illegally returning to the U.S. The only—I’ve looked into the issue in terms 

of if that credit applies. I don’t believe it can at all. However, I do believe 

that the Court may have discretion to look at that in terms of mitigation of 

the stipulated sentence. And for that I would like a week or two, maybe, if 

it’s okay with [defendant], two weeks for me to see if there’s some 

authority for that. If not, then there will be nothing else. [¶] ... [¶]
4

“THE COURT: All right. So if we get the position of [defense 

counsel] in two weeks, and I’ll make the same offer to the People. I’ll 

allow the People to file anything if you want to, [prosecutor], you’re not 

required to. But if you want to provide some information or authority— 

[¶] ... [¶]

“[PROSECUTOR]: And I’m sorry, is the Court going to find the 

violation right now and simply put over the sentencing so that we don’t 

have to come back to that? [¶] ... [¶]

“THE COURT: All right. I will find that [defendant] has violated 

the terms of the Cruz Waiver and the agreement in that he has returned to 

the U.S. and failed to report to Probation as require[d] for the preparation of 

its report. [¶] And apparently the terms of the agreement were that it 

would be a stipulated term of six years, four months, and it is with regard to 

whatever the judgment may be or the discretion of the Court in that regard. 

That is the authority which the Court is seeking from counsel. So I’ll be 

looking for that.

“[DEFENSE COUNSEL]: Your Honor, only one comment. I don’t 

think it’s going to matter, but technically he didn’t violate the reporting 

requirement. Because I think it was only if he was not deported. And he 

was deported. But he did violate in terms of illegally returning.

“THE COURT: Comment by the People?

“[PROSECUTOR]: As [defense counsel] says, I don’t think it really 

makes a difference. So submitted.

“THE COURT: All right, thank you very much. [¶] I believe 

[defense counsel] is correct, that he was in custody while he was here at the

time when he might have otherwise reported. And then he was taken by 

Customs authorities, [ICE] authorities, and thereafter, returned to the U.S. 

[¶] So it will only be for the basis that he returned to the U.S. that he is in 

violation of the Cruz agreement or waiver.”

On September 14, 2012, defense counsel asked the court to continue sentencing. 

The following occurred:

“[DEFENSE COUNSEL:] We have documents for [defendant] 

from the Department of Justice, from Madera County Department of 

Corrections, to indicate that he was in federal custody in either South 

Carolina or Georgia or both. [¶] I spoke to Mr. Ginder in the district 

attorney’s office, who indicated they picked him up from Atlanta, Georgia, 

and brought him here. So the question I have still is whether he ever left 
5

the country. [¶] ... [¶] ... And ultimately if we find out that he wasn’t out 

of the country, then we won’t be able to request any reconsideration.”

On October 4, 2012, defense counsel asked for another continuance. The 

following occurred:

“[PROSECUTOR]: If we’re going to continue it out again, I would 

want to inquire as to what information is being sought as far as how 

necessary it is.

“[DEFENSE COUNSEL]: Well, the information is basically, he has 

always said from the beginning that in his federal case in San Diego that the 

probation department in Madera got involved, and because of their 

involvement his time was increased. Now, the issue is, if that is true, does 

that in any way affect his six years here in Madera?

“THE COURT: Basically getting credit for whatever time that—

“[DEFENSE COUNSEL]: Yeah.

“THE COURT: —he was in because it related to the Madera 

action?

“[DEFENSE COUNSEL]: Yes.

“THE COURT: I understand the theory.”

On November 1, 2012, defense counsel reported that he had no information to

support a request for reconsideration. The court stated it would refer the matter to the 

probation department for computation of time credits.

On November 29, 2012, the probation officer prepared a report stating that on 

February 19, 2010, defendant pled guilty in this case, was released on his own 

recognizance, and turned over to ICE. He failed to appear for sentencing on March 22, 

2010, and a bench warrant was issued. He was subsequently sentenced to 27 months in 

federal prison. On February 28, 2012, he was released on supervised release for three 

years. On April 26, 2012, he was arrested in Georgia on the bench warrant in this case. 

On May 18, 2012, he was received in Madera. On the same date, an ICE hold was placed 

on him.
6

The probation officer noted: “The defendant said he has resided in Madera 

County since he came to the United States in 1992, except for the period of time he was 

deported in 2010 and placed in Federal State Prison in Georgia and then returned to 

Madera County Department of Corrections.”

In the list of defendant’s criminal history, the probation officer noted that on 

November 19, 2010, defendant was convicted and sentenced to 27 months in federal 

prison with three years of supervised release. On February 28, 2012, he was placed on 

supervised release.

On February 21, 2013, in anticipation of the sentencing hearing, defense counsel 

filed a sentencing statement in mitigation, arguing that defendant’s sentence should run 

concurrently with the federal case in which he had served almost two years. Attached as 

Exhibit A was a form AO 245B, entitled “Judgment in a Criminal Case,” filed in federal 

court on August 16, 2010, and signed by a federal judge, documenting the judgment in 

defendant’s case and stating that defendant had pled guilty to a violation of title 8 United 

States Code section 1326 (reentry of a removed alien) as a deported alien found in the 

United States.3

On February 22, 2013, at the sentencing hearing, counsel argued whether

defendant should receive credit for time served in federal prison, as follows:

“[DEFENSE COUNSEL]: It is the defense view that [defendant] 

should receive credit for the two years straight that he did in federal 

 

3 Title 8 United States Code section 1326 provides in part: “[A]ny alien who—[¶]

(1) has been denied admission, excluded, deported, or removed or has departed the 

United States while an order of exclusion, deportation, or removal is outstanding, and 

thereafter [¶] (2) enters, attempts to enter, or is at any time found in, the United States, 

unless (A) prior to his reembarkation at a place outside the United States or his 

application for admission from foreign contiguous territory, the Attorney General has 

expressly consented to such alien’s reapplying for admission; or (B) with respect to an 

alien previously denied admission and removed, unless such alien shall establish that he 

was not required to obtain such advance consent under this or any prior Act, shall be 

fined under title 18, ... or imprisoned not more than 2 years or both.”
7

custody. And up until today I’ve not had a case in my possession that is 

more deserving of a concurrent sentence. And the reason why is that 

defendant’s sentence was bumped up from one year to six years, four 

months because he violated the Court’s advisement and warning that if he 

returned to the United States, he would be facing the six years, four months. 

And it is exactly that same act of trying to cross the border which activated 

the federal prosecution for illegal reentry.

“Now, the—my calculation of time credits is much greater, because 

it encompasses 365 days, plus 361 days straight. I believe that [defendant] 

is very close to timing out but I do not think he’s timed out. I have my own 

calculation of time credits. But I think that this is a situation where if we 

don’t give [defendant] credit for the time that he did in federal custody for 

the illegal reentry, we’re in essence punishing him twice for the same 

conduct.

“The Court told him, ‘If you return to the United States you’re going 

to get up to six years, four months.’ That’s what he did. He returned to the 

United States. [¶] He did not even enter the United States. He’s stopped at 

the border, taken into custody, prosecuted in San Diego, pled to 27 months. 

Did four days short of two years straight.

“So with those comments, if the Court agrees with me, I have time 

credits. And I just don’t think it would be appropriate to punish the 

defendant twice who’s trying to cross the border. Thank you.

“THE COURT: Thank you, [defense counsel].

“Comment, [prosecutor]?

“[PROSECUTOR]: I disagree with Counsel’s legal analysis. We 

aren’t punishing him twice for the same conduct. Punishing him federally 

for entering the United States illegally is a federal crime, and we are not 

punishing him for that. He has already been punished. He is just getting 

the sentence that he was told he would get, and he violated his Cruz 

Waiver, the Court has so found on August 27th of 2012, and [defendant] 

should not benefit from the fact that he happened to be caught by the 

federal authorities and had to spend some time in federal prison. It’s 

unfortunate, but it happened. [¶] And I would submit that he be sentenced 

to the six years, four months previously agreed to, Your Honor. Thank 

you.

“THE COURT: Any response, [defense counsel]?

“[DEFENSE COUNSEL]: Just shortly. If this case were the other 

way around, where [defendant] first got the six years, four months here, and 
8

then as they do many times when you’re sent to prison, they pick them up 

from prison on their release date, there would have been a concurrent time 

issue there too. [¶] If the defendant had done anything, anything at all, 

other than try to cross the border, I would agree with [the prosecutor].... 

But I just don’t—I think it violates due process, and the Court’s own sense 

of how much punishment he deserves. [¶] And so I hope the Court will 

agree with me. If it does, then it is my opinion that he has 1,091 actual 

days.

“THE COURT: All right, thank you, [defense counsel].

“As mentioned, I have read and considered the report of the 

probation officer. That was filed November 30, 2012. I have the 

supplemental information from Probation on the time credits filed 

January 23, 2013, and then the sentencing statement in mitigation filed 

February 21, 2013. I’ve read and considered all of those.

“I appreciate the comments of both the People and the defense in 

this matter. It appears to me that it would not be punishing [defendant] 

twice. I would view this analogous to a violation of probation matter. In a 

probation—if the defendant agrees to abide by specific terms, such as obey 

all laws, if he or she violates the probationary terms, then the Court may 

impose judgment based upon that violation. That does not mean that the 

Court would be in any way prevented from also acting on a prosecution for 

the law which was violated, which also constituted the violation of 

probation. So I don’t see this in the same vein. [¶] ... [¶] So I will not be 

ordering time credits based upon the time he was in federal custody.”

The court continued sentencing again to allow the probation department to further 

consider time credits.

On March 5, 2013, the probation officer prepared a supplemental report, which 

included the following: “There is no dispute that the defendant illegally re-entered the 

United States illegally [sic]. He was arrested, prosecuted and convicted in Federal Court 

for that offense, and served a term of incarceration for the Federal offense.”

On March 18, 2013, the court sentenced defendant to the stipulated term of 

six years four months and awarded time credits.
9

DISCUSSION

A defendant who pleads guilty or no contest pursuant to a plea agreement 

(§ 1192.5) may waive the right to be sentenced pursuant to his plea agreement by a socalled Cruz waiver (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; Masloski, supra, 25 Cal.4th 

at pp. 1219-1224). The defendant may expressly waive his rights under section 1192.5, if 

he has been fully advised of those rights, the waiver is knowing and intelligent, and it is 

obtained at the time of the trial court’s initial acceptance of the plea. (Cruz, supra, at 

p. 1254, fn. 5.) Thus, the defendant can expressly agree to a greater sentence as a 

sanction for engaging in certain behavior as long as his waiver is part of the plea bargain 

itself. (Masloski, supra, at pp. 1221-1222.) If he willfully engages in that behavior, he 

violates the Cruz waiver. (Cruz, supra, 44 Cal.3d at p. 1254, fn.5.) “Willfully” means he

knows what he is doing and intends to do it. (§ 7, subd. 1; People v. Atkins (2001) 25 

Cal.4th 76, 85-86.)

“The question whether defendant violated the conditions of his release is one of 

fact, which we review under the substantial evidence test. ‘When a trial court’s factual 

determination is attacked on the ground that there is no substantial evidence to sustain it, 

the power of an appellate court begins and ends with the determination as to whether, on 

the entire record, there is substantial evidence, contradicted or uncontradicted, which will 

support the determination ....’ [Citation.] ‘Deferential review is particularly necessary 

when, as here, the factual determination depends in part on judging a witness’s 

credibility,’ and we must uphold such a determination if it is supported by substantial 

evidence. [Citation.] ‘We do not reweigh or reinterpret the evidence; rather, we 

determine whether there is sufficient evidence to support the inference drawn by the trier 

of fact.’” (People v. Rabanales (2008) 168 Cal.App.4th 494, 509.)

Here, defendant’s plea agreement included a Cruz waiver by which he agreed that 

he would receive a sentence of six years four months if, once released, he failed to obey 

all laws, including if he illegally reentered the country. He argues that the trial court 
10

failed to explicitly find that his violation of the Cruz waiver was willful, and that such a 

finding would not be supported by the record. He says the record “does not establish that 

[he] ever re-entered the country following his plea, because the record does not establish 

that he ever left the country.” He adds: “Certainly it cannot be said on this record that an 

implied finding of willfulness is supported by substantial evidence.”

We disagree entirely. The record amply supports the conclusion that the trial court 

impliedly found defendant willfully and illegally reentered the country, and 

overwhelming evidence supports such a finding. At the August 27, 2012 hearing to 

determine whether defendant violated the Cruz waiver, defense counsel—in defendant’s 

presence—stated that defendant was deported and violated the Cruz waiver “in terms of 

illegally returning.” The court then summarized that defendant “was taken by Customs 

authorities, [ICE] authorities, and thereafter, returned to the U.S.” In the face of 

counsel’s concession and the court’s statement, defendant did not deny illegally 

reentering the country (nor did he offer a scenario whereby he unwillingly reentered the 

country). “It is, of course, well established that the defendant is bound by the stipulation 

or open admission of his counsel and cannot mislead the court and jury by seeming to 

take a position on issues and then disputing or repudiating the same on appeal (People v. 

Peters (1950) 96 Cal.App.2d 671, 677[

4

]).” (People v. Pijal (1973) 33 Cal.App.3d 682, 

 

4

In People v. Peters, supra, 96 Cal.App.2d 671, the court explained: “It is 

elementary that in a homicide case the fact that the deceased met his death through the act 

or agency of the defendant must be proved. It may, of course, be proved by 

circumstantial evidence. [Citation.] Obviously, here, the cause of death was not proved 

by evidence. However, the cause of death is a fact, which, like every other fact, need not 

be proved, even in a criminal case, if admitted or conceded by defendant. While there 

was no direct proof of the cause of death, the conduct and attitude of defendant at the 

trial, as disclosed by the record, constituted at least an indirect concession of the fact.” 

(Id. at p. 675.) “In a criminal case a defendant is not called upon to make explanation, to 

deny issues expressly (his plea of not guilty does that for him), nor is he required to point 

out to the prosecution its failure to make a case against him or to prove any link in the 

required chain of guilt. On the other hand, he cannot mislead the court and jury by 

seeming to take a position as to the issues in the case and then on appeal attempt to 
11

697.) Defendant’s concession provided substantial evidence that he was deported and 

then reentered the country illegally, thereby willfully violating the Cruz waiver. Any 

error by the court in not explicitly stating its finding that defendant willfully violated the 

Cruz waiver was harmless.

We also note that after this hearing, other evidence further supported defendant’s 

concession. His federal conviction was for a violation of title 8 United States Code 

section 1326, which punishes illegal reentry into the country following deportation. 

Defendant himself provided proof of this conviction in connection with his request for a 

mitigated sentence. And, according to the probation officer’s report, defendant told the 

probation officer that he was deported in 2010, and then placed in federal prison. The 

report noted there was “no dispute that the defendant illegally re-entered the United 

States.”

Defendant failed to dispute this evidence or his counsel’s concessions throughout 

these proceedings. Consequently, he cannot now dispute the issue on appeal. 

Furthermore, after reviewing the entire record, we are confident no due process violation 

occurred.

DISPOSITION

The judgment is affirmed.

 

repudiate that position. A reading of the proceedings at the trial, including defendant’s 

statement at the opening of his case and his argument to the jury at the end of the case, 

clearly shows that at no time was he questioning either that the knife wound caused 

Cole’s death, or that that fact had not been established or was an issue to be resolved by 

the jury. It also shows that defendant was conceding the cause of death.” (Id. at p. 676.)