Filed 8/7/13 P. v. Church CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. GRANT DONALD CHURCH, Defendant and Appellant. D062490

(Super. Ct. No. JCF29014)

APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge. Reversed.

Theresa Osterman Stevenson, under ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant and appellant Gran t Donald Church contends the trial court erred when it sentenced him to the upper term of three ye ars in state prison instead of the two-year term negotiated in his plea agreement after Church violated his c ondition of release. Church contends this matter should be remande d for resentencing in accordance with his plea bargain or, if the trial court chooses not to impose that bargai ned-for sentence, to allow him to withdraw his guilty plea. We agree.
FACTUAL AND PROCEDURAL BACKGROUND 1 On or about June 19, 2012, two soft dri nk vending machines located at a store in El Centro, California were found to have thei r outside metal shells cut and their bill and coin collection boxes removed. An estimat ed $171 in currency was missing from the vending machines, each of which wa s valued at about $2,500. The following day, El Centro police offi cers stopped Church driving a truck. Police found a handheld circular saw and pry bars in the bed of the truck and 65, $1 bills on Church's person. Church initially admitte d the saw belonged to him but changed his story when officers told him they were investigating th e vandalism to the vending machines from the previous day. Church then told officers he might know who was responsible for the vandalism. Cut marks on the metal shell of the vending machines matched the cutting disc of the circular saw found in the truck being driven by Church.

1 The factual summary is derived from the probation officer's re port. The parties stipulated there was a factual basis for Ch urch's plea as Church admitted only that witnesses would testify under oath that he possessed and controlled property he knew was stolen.3 A felony complaint charged Church with receiving stolen property (Pen. Code, 2 § 496, subd. (a); count 1); felony vandalism (§ 594, subd. (a); count 2); and misdemeanor possession of burglar's tools (§ 466; count 3). As to counts 1 and 2, the complaint further alleged Church had a prior c onviction for a serious felony. (§ 667, subd. (a)(1).) On July 10, 2012, C hurch entered into a negotiated plea agreement in which he pled no contest to count 1 for receiving st olen property in exch ange for a two-year midterm suspended prison sent ence, imposition of formal pr obation on the condition he enroll in a one-year residential drug treatment program at Turning Point, and dismissal of counts 2 and 3 and the prior conviction alle gation. The change of plea form did not include a Cruz waiver. 3 The court set sentencing for July 24, 2012, and Church remained in custody. On July 24, the court grante d Church's request for a continuance of the sentencing hearing to July 27. The prosecutor involv ed in the plea negotiation was unavailable on July 27, and the court continued sentencing to July 30. In so doing, the court agreed to release Church to the "direct custody [of] any representative from the Turning Point program," inasmuch as there wa s a bed then available for hi m, "under the conditions that he obeys all laws, makes all court appearances and follows the instruc tions of the Turning Point program."

2 All statutory references are to the Penal Code. 3 See People v. Cruz (1988) 44 Cal.3d 1247 ( Cruz ), discussed post

.4 Before the July 27 hearing concluded, the People asked for a Cruz waiver. In response, the court explained to Church the meaning of a Cruz waiver as follows: "That Cruz waiver, Mr. Church, is really important and I'm kind of a stickler for. What it is is this. If you don't come to cour t when you are supposed to and are ordered to come, unless you have a good excuse -- we ca ll it good cause -- then all bets are off. Whatever agreements have b een reached before in return for your plea are no longer. The People are no longer bound by them. So if you agreed to X, now it can be double, triple. You will get sentenced to whatever the Court[] feel s is appropriate. If you had agreed on probation, the judge can say, 'F orgot about probation. Send you to state prison,' if that is so mething the law allows. "I'm not saying that will happen. I want to make sure you understand all bets are off -- all bets -- if you don't return. And thatwill be a condition of your release. [¶] Okay. "[Mr. Church]: Yes. "THE COURT: Any comme nt, [defense counsel]? "[Defense counsel]: No. "THE COURT: I'll release you. However, it's not strict ly speaking just releasing you on the streets. I'll re lease you to the representativ es of Turning Point." Church and his defense counsel both signed the Cruz waiver file-sta mped July 27, 2012. It provides: "Negotiated Disposition purs uant to Penal Code [section] 1192.5: [¶] I [Church] understand that if pending sentencing I am arrested for or commit another5 crime, violate any condition of my release, or willfully fail to appear for my probation interview or for my sentencing hearing, the sentence porti on of this agreement will be cancelled. I understand that I will be se ntenced unconditionally, and I will not be allowed to withdraw my guilty/no contest plea." At the conclusion of the hear ing on July 27, the court cautioned Church that he was required to "obey all laws and follow th e instructions and rules over at Turning Point." In the evening of July 27, after spendi ng less than two hours at Turning Point, Church walked away fro m the program and turned himself in to law enforcement on July 30. That same day, the court remanded Ch urch into custody for leaving the Turning Point program, set his bail at $100,000 and con tinued the sentencing hearing to August 7. The court on August 7 senten ced Church to the upper term of three years in state prison on count 1, to be served in county jail pursuan t to section 1170, su bdivision (h).
DISCUSSION As noted ante , Church contends either that the plea bargain should be specifically enforced with his sentence bein g two years in state prison or that he should be permitted to withdraw his guilty plea.
A. Governing Law Courts "often have noted that plea ag reements are a recognized procedure under our judicial system [citations] and a de sirable and essential component of the administration of justice. [Citations.] Commen tators are in accord, noting that '[b]oth the6 state and the defendant benefit from plea barg ains, the defendant by lessened punishment, the state by savings in cost of trial, increas ed efficiency, and flex ibility of the criminal process.' [Citation.] Add itionally, the enactment of se ctions 1192.3 and 1192.5, governing plea agreements, reflects the Le gislature's approval of the practice. "Under section 1192.5, if a plea agreem ent is accepted by the prosecution and approved by the court, the defendant 'cannot be sentenced on the plea to a punishment more severe than that specified in the plea . . . .' The statut e further provides that if the court subsequently withdraws its approval of the plea agreemen t, 'the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.' [4] [Citations.]
"In People v. Cruz , supra , 44 Cal.3d 1247, 1249, [our high court] held that a defendant who fails to appear for sentencing does not lose the protections of section 1192.5. The defendant in thatcase pleaded guilty pursuant to a plea agreement that gave him the option of a sentence of up to one ye ar in the county jail with a maximum of five years' probation or 16 months in prison without proba tion. The defendant failed to appear for sentencing. When he was appr ehended more than six months later, the superior court refused to abide by the plea ag reement, denied the defendant's motion to
4 "Section 1192.5 provides, in relevant pa rt: 'Where the plea is accepted by the prosecuting attorney in open court and is appr oved by the court, the defendant, except as otherwise provided in this 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 applica tion 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.'"7 withdraw his plea, and sentenced him to a te rm of two years in prison. The Court of Appeal affirmed the resulting judgment, co ncluding that by failing to appear for sentencing, the defendant '"brea ched the bargain . . . [and] is not entitled to either specific enforcement of that bargain or w ithdrawal of his guilty plea."' ( People v. Cruz , supra , 44 Cal.3d at p. 1250, fn. omitted.) [Our Suprem e Court] granted review and reversed the judgment of the Court of Appeal, relying upon a line of Court of Appeal opinions that began with People v. Morris (1979) 97 Cal.App.3d 358.
"In People v. Morris , pursuant to a plea agreement, the defendant pleaded guilty to two counts of aggravated assa ult in exchange for the dism issal of the three remaining counts of aggravated assault and a promise that a prison term w ould not be imposed. Defense counsel noted that the court had ag reed to release the defendant on his own recognizance pending sentencing. The court stated that, in orde r to ensure that defendants who had been released on their ow n recognizance appear ed for sentencing, it had adopted a practice of sentencing such de fendants to prison but staying execution of the sentence until the date set for formal sentencing. As the court explained to the defendant: '"That way, you see, I don't have to get the O.R. people to interview you and all that. All I do is say if you come back, we'll do what the probation report recommends and what I decide is appropriate on those two counts. But if yo u don't come back, a warrant will go out, you'll go to State Prison. And that means you're sure to come back, right?"' ( People v. Morris , supra , 97 Cal.App.3d at p. 361, fn. 1.)8 "The defendant agreed to this arrangement , entered his plea, and was sentenced to prison. Execution of the sent ence was stayed, and the defendant was released on his own recognizance until the date set fo r sentencing. The court reite rated that if the defendant appeared for sentencing, '"I will rescind the State Prison sent ence and proceed in accordance with the plea bargain. If he doesn't appear, I'll leave the State Prison sentence outstanding and issue a warrant and send everybody out to find him."' ( People v. Morris , supra , 97 Cal.App.3d 358, 361, fn . 3, italics omitted.) The defendant failed to appear for sentencing and was apprehende d two months later. The superior court denied the defendant's motion to withdraw his plea and remanded him to begin serving the previously imposed prison sentence. "The Court of Appeal in Morris reversed, concluding that the superior court lacked the authority to impose 'such an unusual sentencing-rele ase procedure' and that the lower court's authority to a pprove the terms of the plea ag reement 'did not sanction the wholly unrelated and unbargained conditi on interjected by the court concerning defendant's candidacy for immediate O.R. release pending contemplated formal sentencing proceedings.' ( People v. Morris , supra , 97 Cal.App.3d 358, 363.) The court
in Morris concluded that the defenda nt was entitled under secti on 1192.5 to withdraw his plea in the event the terms of the plea agreement were not enforced. "Similarly, in People v. Barrero (1985) 163 Cal.App.3d 1080, the defendant pleaded guilty to felo ny joyriding pursuant to an agreement that he would receive a sentence of 16 months in prison. The defendant was told that if he failed to report to the9 probation department or failed to appear for sentencing, he '"would receive either two or three years in prison, but he would not be allo wed to back out of the plea bargain."' ( Id. at p. 1082.) 

### Defendant failed to report to the probation department and failed to appear for sentencing. After being apprehended, he was sentenced to three years in prison. Relying upon the decision in People v. Morris , supra , 97 Cal.App.3d 358, the Court of Appeal reversed, rejecting the People's argument that Morris was distinguishable because Barrero had 'bargained away his right to withdraw his guilty plea.' ( People v. Barrero , supra , 163 Cal.App.3d at p. 1085.) In the co urt's view, the sanction for nonappearance had been '"engrafted"' upon the terms of the negotiated plea agreement and was ineffective. ( Ibid. ) As . . . observed in Cruz , because Barrero, like Morris, had not been advised of his right to withdr aw his plea under section 1192 .5 if the plea agreement was disapproved, 'he could not be deemed to have bargained away his right to withdraw his guilty plea. [Citation.]' ( People v. Cruz , supra , 44 Cal.3d 1247, 1252.) "Following the decision in Morris , [our high court] held in Cruz that a defendant who fails to appear for sent encing does not breach the terms of the plea agreement, but commits 'a separate offense of failure to appear. (See §§ 1320 and 1320.5.)' ( People v. Cruz , supra , 44 Cal.3d 1247, 1253.) A ccordingly, [the court] held, as noted above, that a defendant who fails to appear for sentencing does not lose the protections of section 1192.5. In a footnote, [it] added the following caveat: 'We do not mean to imply by this holding that a defendant fully advised of his or her rights under s ection 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for10 sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term. Any such waiver, of course, would have to be obtained at the time of the trial court's initial acceptance of the plea, and it must be knowing and intelligent. ' [Italics added.] ( People v. Cruz , supra , 44 Cal.3d at p. 1254, fn. 5.)
"In People v. Vargas (1990) 223 Cal.App.3d 1107, the Court of Appeal distinguished our decision in Cruz and held that a plea agreement validly could provide for a specified greater term to be imposed in the event the defendant failed to appear for sentencing, and to a specified lesser term if the defendant did appear. Vargas pleaded guilty to two counts of possession of controlle d substances pursuant to a plea agreement that called for a total sentence of two years in prison if he appear ed for sentencing but a total term of five years in prison if he fa iled to appear for sentencing. The prosecutor described this arrangement as '"a negotiated disposition agreed upon by both sides solely to allow [the defendant] to re main free till the probation and sentence date . . . ."' ( People v. Vargas , supra , 223 Cal.App.3d at p. 1109, fn. 1.) The defendant and defense counsel confirmed that this was their understanding of the terms of the plea agreement, but defendant was not advised of his right under section 1192.5 to withdraw his plea if the court subsequently withdrew its approval of the plea agreement. The defendant failed to appear for sentencing and was apprehended 14 months later. The court denied the defendant's motion to withdraw his plea and sent enced him to a total term of five years in prison.11 "The Court of Appeal affirmed the resu lting judgment, rejecting the defendant's contention that the sentence violated section 1192.5 as construed in Cruz . The court in Vargas distinguished 'the Morris line of cases and Cruz ' on the basis that the superior court in Vargas 'did not seek to repudiate the plea bargain or to impose a sentence more onerous than that which defendant had agreed to accept as part of the bargain itself.' ( People v. Vargas , supra , 223 Cal.App.3d 1107, 1113.) The provisions of section 1192.5 did not apply because '"the court didn't change the bargain."' ( People v. Vargas , supra , 223 Cal.App.3d at p. 1113.) In so holding, the court in Vargas relied upon the decision in People v. Jackson (1980) 103 Cal.App.3d 635.
"In Jackson , the defendant pleaded guilty to s econd degree burgl ary pursuant to a plea agreement in which the People promised to move for the dismissa l of a second count of burglary and 'not oppose reduction to a mi sdemeanor at time of sentencing if no prior record. Six months maximum.' ( People v. Jackson , supra , 103 Cal.App.3d 635, 637.) The trial court approved the plea agreement, ta king care to explain to the defendant that the proposed sentence was conditioned upon hi s having no prior record. The defendant said he understood. After the probation repo rt subsequently revealed that the defendant had an extensive prior criminal record, the court sentenced him to a term of three years in prison. "The Court of Appeal in Jackson affirmed the resulting judgment, rejecting the defendant's argument that he should have been permitted to withdraw his plea and reasoning that section 1192.5 applies only if 'the court makes a unilateral modification in12 the sentence agreed upon at the time of plea.' ( People v. Jackson , supra , 103 Cal.App.3d 635, 638.) The court explained: 'Here, the c ourt didn't change the bargain. The express agreement required a misdemeanor sentence only upon the condition of defendant having a clean record. If that conditi on were not met, neither the bargain nor the statute gave defendant the right to withdraw his plea.' ( Ibid. ) "The distinction drawn in People v. Vargas , supra , 223 Cal.App.3d 1107, between (1) a plea agreement that provides alternate sent ences depending upon whether the defendant does or does not appear for se ntencing as ordered, and (2) a sanction for nonappearance that is unilaterally imposed by the trial c ourt, was recognized in People v.
Jensen (1992) 4 Cal.App.4th 9 78. The defendant in Jensen pleaded guilty to a charge of possession of a concealable firearm by a felon, pursuant to a plea agreement that included a term of one year in county jail. After defense counsel recited the terms of the plea agreement to the court, he requested a 'sta y of execution,' indica ting he understood the court's policy of ensuring a defendant's appear ance by sentencing him or her to a term of two years in state prison and staying executi on of that sentence pending the defendant's appearance for sentencing. Defendant failed to appear for sentencing. When he was apprehended, the court ordered execution of the two-year pr ison sentence and denied the defendant's motion to withdraw his plea. "The Court of Appeal revers ed, concluding that 'the trial court maintained a return policy similar to those criticized in the Morris line of cases and sentenced appellant pursuant to such policy rather than the plea bargain ag reement reached between appellant13 and the district attorney.' ( People v. Jensen , supra , 4 Cal.App.4th 978, 982.) Significantly, the court concluded 'that the return provision was not a valid part of appellant's plea bargain.' ( Id. at p. 984.) "Similarly, the court in People v. Murray (1995) 32 Cal.App. 4th 1539, found a nonappearance sanction invalid because it was not part of the plea agreement. Murray pleaded guilty to two co unts of residential burglary base d upon an agreement that he would be sentenced to no more than four years in prison. After reciting the terms of the plea agreement on the record and obtaining th e defendant's waiver of his constitutional rights, the court indicated it would grant the defendant's '"request for a two-week hiatus before he turned himself in,"' on the condition that if he failed to appear the court would not be bound by the four-y ear maximum sentence. ( Id. at p. 1542.) The defendant failed to appear. When he was apprehended, the cour t sentenced the defendant to a total term of six years and four months in prison. "The court in Murray distinguished the decision in Vargas , supra , 223 Cal.App.3d 1107, on the basis that, unlik e the trial court's action in Vargas , 'the plea bargain itself did not contemplate a sentence higher th an the four-year middle term.' ( People v. Murray , supra , 32 Cal.App.4th 1539, 1545.) The sancti on for nonappearance was imposed by the court 'separate and apart from the plea bargain.' ( Ibid. )

" People v. Casillas (1997) 60 Cal.App.4t h 445, presented a situation analogous to that in Vargas . Casillas pleaded no contest to po ssession of methamphetamine pursuant to a plea agreement under which, with the following conditions, he would be placed on14 felony probation and serve 90 days in coun ty jail. The agreem ent provided that the defendant would be released on his own recognizance pending se ntencing, but if he failed to appear for sentencing, the maximum senten ce would be increased to three years in prison. The defendant failed to appear and later was apprehended. The superior court denied the defendant's motion to withdraw hi s plea and sentenced him to three years in prison. "The Court of Appeal in Casillas examined the authoritie s discussed above and distilled the following principles: 'First, when a defendant fails to appear at sentencing after entering a bargained plea with no discussion about a specific sanction for nonappearance, he or she is en titled to withdraw the plea if the court refuses to honor the plea bargain. Second, the same rule applies when, during the plea proceedings but after the parties have negotiated the basic plea bargain, the court im poses an additional condition providing a sanction fo r nonappearance. Third, wh en the parties themselves agree as part of the plea bargain to a specif ic sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.' ( People v. Casillas , supra , 60 Cal.App.4th 445, 451-452.) "The appellate court in Casillas concluded that 'the retu rn provision was a valid part of the plea agreement itsel f and, therefore, enforceabl e without regard to section 1192.5.' ( People v. Casillas , supra , 60 Cal.App.4th 445, 453.) The court observed that the plea agreement at issue differe d from the agreemen t involved in Vargas , 'because Casillas did not agree "to a specific greater term to be imposed if he should fail to appear15 for sentencing,"' but found this difference 'insignificant.' ( Id. at p. 452, italics added.) The court also found insignif icant the circumstance that the plea agreement did not specify a greater term of imprisonment as in Vargas but, rather, provided for an increase in the maximum possible prison term in the event the defe ndant failed to appear. The court in Casillas stated: 'We see no reason why the pa rties should not be free to negotiate a lesser sanction for nonappearance than impo sition of a specific greater sentence. Indeed, such a lesser sanction preserves the pa noply of procedural protections and rights for the sentencing hearing.' ( People v. Casillas , supra , 60 Cal.App.4th at p. 452.)" ( People v. Masloski (2001) 25 Cal.4th 1212, 1216-1222.)
In People v. Masloski , the defendant argued that a provision for an increased sentence in the event the defendant did not appe ar at sentencing was not part of the plea agreement but was imposed by the trial court as part of a separate "'contract.'" (25 Cal.4th at p. 1222.) Our Supreme Court disagr eed, noted that the trial court at the outset of the defendant's plea agreem ent accurately described the te rms of the agreement, which included what the court referred to as a "' Cruz waiver'" ( ibid. ), and explained that "a

' Cruz waiver' signified that defendant could rece ive an increased sentence of up to six years in prison in the event [the defendant ] failed to appear for sentencing." ( Ibid. ) The trial court next confirmed the terms of this agreement with the People and the defendant and his counsel. ( Ibid. ) Relying on People v. Casillas , among many other authorities, our high court in People v. Masloski , supra , 25 Cal.4th 1212 found that the "'relevant transcript leaves no16 doubt a plea agreement already had been negotia ted' . . . and that the agreement included a provision for an increased sentence in the event defendant fa iled to appear for sentencing[:] "Having confirmed the terms of the plea agreement, including the provision for an increased sentence in the ev ent defendant failed to ap pear, the [trial] court [in People v. Masloski ] turned its attention to defendant and explained in detail the aspect of the agreement providing that she co uld receive an increased sent ence upon failing to appear for sentencing. The court th en obtained defendant's assura nce that she understood and agreed to this arrangement. Although the court used the term 'contract ' in referring to this part of the agreement, we do not accept defendant's contention that the use of this terminology signified that the ' Cruz waiver' was not part of the plea agreement. The court apparently used this term, which is familiar to laypersons, to impress upon defendant the importance of this aspect of the agreement and the circumstance that her nonappearance would have serious consequences. "The decision in Vargas observed that the holding in Cruz , and the cases upon which it relied, 'serve the ob jective that plea bargains "'implement the reasonable expectations of the parties . . . .'"' ( People v. Vargas , supra , 223 Cal.App.3d 1107, 1112.) The [ Vargas ] court went on to state: 'That expect ation was served in this case. Here, unlike the Morris line of cases and Cruz , the trial court did not seek to repudiate the plea bargain or to impose a sentence more onerous than that which defendant had agreed to accept as part of the bargain itself. The plea bargain specified the se ntence defendant was17 to receive: two years if he appeared at the sent encing hearing, and five years if he did not. [¶] Neither defendant, his attorney, nor anyo ne else involved in th e plea bargain could have had any reasonable expect ation other than that the bargained-for term of five years would be imposed if defendant failed to appear at the sentencing hearing.' ( Id. at p. 1113, fn. omitted.) The same is true in the pr esent case. The tria l court listed the ' Cruz waiver' as one of the terms of the plea agreement, and defendant clearly understood that part of the agreement was that her sent ence could be increased in th e event she failed to appear for sentencing. The provision for an increased sentence upon defendant's nonappearance was part of the plea agreement and not 'a judicially imposed afterthought.' ( People v. Casillas , supra , 60 Cal.App.4th 445, 452.) "Defendant is correct that the superior c ourt, when it accepted defendant's plea of no contest, failed to advise he r as required by sec tion 1192.5 of her right to withdraw her plea in the event the court subs equently disapproved the plea agreement. But this error was of no consequence, because the superior court did not di sapprove the plea agreement. Rather, when defendant failed to appear on the date set for sentencing, she was sentenced to a term of four years in pr ison, in accordance w ith the terms of the plea agreement. The provisions of section 1192.5 that permit a de fendant to withdraw his or her plea if the court withdraws its approval of the plea agre ement were not implicated, because the court adhered to the terms of the plea agreement by sentencing defendant to a prison term that did not exceed (and in fact was less than) th e maximum sentence authorized by the plea18 agreement in the event that de fendant failed to appear on the date set for sentencing." ( People v. Masloski , supra , 25 Cal.4th at pp. 1222-1224.)
B. Analysis The following facts are undisputed: (1) th e July 10, 2012 plea agreement did not include a Cruz waiver, inasmuch as that waiver was imposed by the cour t on July 27—17 days after the plea agreement was negotiated and accepted by the trial court; (2) when Church walked out of the Tu rning Point program on July 27 after spending less than two hours at the facility, he violated a condition of his release; (3) when the trial court sentenced Church to a three-year pr ison term, that term not only was not part of the July 10 plea agreement, but it also was more onerous than the tw o-year bargained-for prison term in the plea; and (4) at the time of se ntencing, the court did not give Church the option to withdraw his plea despite its re fusal to adhere to the terms of the plea agreement. These facts, which we conc lude are supported by ample evidence in the record, lead us to conclude that the trial court erre d when it sentenced Chur ch to three years in state prison because neither the th ree-year term nor the alleged Cruz waiver was part of the plea agreement. (See People v. Cruz , supra , 44 Cal.3d at p. 1254, fn. 5 [noting that any waiver of section 1192.5 must be "obtai ned at the time of the trial court's initial acceptance of the plea" and must be "kno wing and intelligent," and noting that the agreement itself must includ e a provision for an increased sentence in the event the defendant fails to appear for sentencing or otherwise violat es a condition of his or her19 plea].) Moreover, the record shows the trial court also erred when it did not permit Church to withdraw his plea after the court c hose not to follow the te rms of the parties' agreement and instead imposed a three-year pris on term for Church's vi olation of count 1. (See § 1192.5.) Our decision is entirely consistent with the holding and teaching of our high court
in People v. Masloski and of the court in People v. Vargas , among the many other cases discussed herein, as it is merely an application of the rule th at one party to a contract may not after-the-fact impose terms and/or conditi ons on the other contracting party (i.e., the defendant) that were not part of the ba rgained-for/negotiated contract (i.e., plea agreement). (See People v. Masloski , supra , 25 Cal.4th at p. 1223 [noting that plea agreements serve an important public policy and that this policy is furthered only when an agreement "'"'implement[s] the reasonable expectations of the parties'"'"].)
DISPOSITION Church's sentence is reversed. On remand, the trial court is in structed either to sentence Church according to the terms of the July 10, 2012 plea agreement or to permit Church to withdraw his plea in a ccordance with section 1192.5. BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J.