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Filed 10/ 5/21 P. v. Roe CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. JOEL EDWARD ROE,

Defendant and Appellant. C092117 (Super. Ct. Nos. 19FE001276, 19FE012289 )

Before admitting to a felony probation violation, defendant Joel Edward Roe agreed to a Cruz 1 waiver. In exchange for a 72

- hour release from custody with conditions, defendan t offered to waive his presentence credits

. Defendant breached one
of the agreement’s conditions and the court struck his presentence credits. On appeal,
d efendant argues he agreed to waive only conduct credits , not actual credits

. Defendant
also contends his trial counsel was ineffective for failing to make this argument at sentencing. We affirm.

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

.2 FACTUAL AND PROCEDURAL BACKGROUND In 2019, defendant pled no contest to three felony drug charges in one case and one felony assault charge in another. Ultimately, the court suspended defendant’s aggregate sentence of six year s eight month s and placed him on five years of felony probation. In late 2019, defendant was arrested for violating probation when his urine tested positive for methamphet amine. On January 16, 2020, defendant offered to admit violating his probation in exchange for a temporary release from custody pursuant to a Cruz waiver

. The prosecution objected, arguing no additional time could be leveraged to induce defendant’s retu rn because his aggregate sentence was “already at the max.” Defendant himself twice offered to give up “additional time.” The parties conversed : “[Defense counsel]: Hold on. Hold on. [¶] We can do this. He has 230 days of credit applied. “[Prosecuto r]: Actual? “[Defendant]: Yes. “[Defense counsel]: Yes. “[Defendant]: And I’ll give all of that up. “[Prosecutor]: Okay. If he agrees to the Cruz waiver, he waives all of his credits. “[Defendant]: Absolutely. Sure.”
The conversation shifted to t opics involving defendant’s girlfriend and then went off the record. 2 After the sidebar, defendant admitted to violating his probation. This exchange followed:

2 Given this switch in discussion before the sidebar, we do not find support in defendant’s assertion that his Cruz waiver was “further discussed . . . off the record” prior to the court’s recitation of the agreement.3

“[Court]: And so your request then is to enter into a so

- called Cruz waiver to be allowed then to be released from custody on [January 20, 2020] and then to then return to reentry court on [January 23, 2020]; is that correct? “[Defendant]: Yes, Your Hono r. “[Court]: And so we’re all clear then, if you were to commit any new violation of law or were to test positive for drugs, then you would

-- or fail to appear, of course

-- you would then when sentenced would forfeit the good

- time work

- time credits that you have accrued. Is that your understanding? “[Defendant]: Yes. “[Court]: And that’s what you want to do? “[Defendant]: Yes, sir. “[Court]: All right. [¶] I’ll go ahead then and order [defendant] to be released on [January 20, 2020].”
Defendant returned on January 23, 2020, but his urine tested presumptively positive for methamphetamine. Defendant contested, “I was with my girlfriend the whole time. I would never risk that.” At the sentencing hearing, by which point defendant’s drug test resu lts were confirmed, defendant contested, “I’m really surprised I came back dirty

. . . . [I] would never jeopardize 285 days over that period of time

. . . . [¶] [ I ] would never even have turned myself in if I was using drugs.” The court found defendant violated his Cruz
waiver and struck all presentence credits

-- both actual and conduct

-- accrued before January 23, 2020. Neither party objected. The court revoked defendant’s probation and executed the aggregate sentence of six years eight months. Def endant appealed. On February 5, 2021, defendant’s appellate counsel moved to correct the record

. In the motion, appellate counsel argued defendant agreed to waive only good conduct
credits

. The motion requested the court to award defendant the actual credit s accrued4

before January 2 3 , 2020. 3 The judge

-- who had also presided over defendant’s no contest pleas, Cruz waiver hearing, and sentencing hearing

-- denied the motion. The judge provided in a written order , “ [T]h e record reflects an und erstanding and agreement that Defendant waived all of his credits earned up to January 23rd

. . . . Although the Court emphasized ‘good

- time work

- time credits’ at one point in the proceeding, no ‘new bargain’ was struck

. . . . Overall, the transcripts fro m the January 16[th] and March 19[th] proceedings make clear that Defendant proposed and agreed to forfeiting the entire amount of credits earned up to January 23rd.”
DISCUSSION
Defendant contends the court violated the terms of his Cruz waiver by striking all presentenc e credits, both actual and conduct. He argues, per the language of the court,
defendant offered to waive only his “good

- time work

- time” credits. We disagree.
When a defendant who ha s pled no contest is temporarily released from custody pursuant to a Cruz waiver agreement , the court may impose a more severe sentence if the
defendant breaches the agreement’s condition, typically by failing to reappear at sentencing . ( People v. Casillas (1997) 60 Cal.App.4th 445 , 45 2 [ “when the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained

- for sanction” ] ; Peopl e v. Masloski ( 2001 ) 25 Cal. 4th 121 2 , 1223 [ upholding “the ‘ Cruz waiver’ as one of the terms of the plea agreement [where] defendant clearly understood that part of the agreement was that her sentence could be increased in the event she failed to appear fo r sentencing”]

. ) Courts interpret Cruz waivers as they do

3 Defendant’s appellate c ounsel brought the motion pursuant to Peopl e v. Fares (1993) 16 Cal.App.4th 954. Both the court and the People construed the motion as pursuant to Penal Code section 1237.1, which partially codified Fares

. ( People v. Acosta (1996) 48 Cal.App.4th 411, 419

. )5

plea agreements because a Cruz waiver is part of the plea agreement . ( Masloski , at
p p

. 1222

- 1223; see People v. Vargas (2007) 148 Cal.App.4th 644, 647 [applying contract interpretation principles to a Cruz waiver] .) Like a plea agreement, a Cruz waiver is essentially a contract. (See Masloski , at p. 1223; People v. Cunningham (1996) 49
Cal. App. 4th 1044, 1047.) Here, the parties agree defendant’s Cruz waiver must be interpreted pursuant to contract interpretation principles. ( See People v. Shelton (2006) 37 Cal.4th 759, 767

. ) Clear and explicit contractual language governs. (Civ. Code, § 1638.) If the language is ambiguous, courts interpret the cont ract as to effectuate the mutual intention of the parties. (Civ. Code, § 1636; Shelton , at p. 767.) Courts determine parties’ mutual intention by objective manifestations of the parties’ intent, including extrinsic evidence such as: the surrounding circ umstances of the negotiation; the object, nature, and subject matter of the contract; and the subsequent conduct of the parties. ( Shelton , at p. 767

. ) Where the interpretation does not turn on the credibility of extrinsic evidence, courts
review the cont ract de novo. 4 ( People v. Paredes (2008) 160 Cal.App.4th 496 , 507 .) Defendant argues the court’s recitation of the agreement constituted the exclusive
terms of the Cruz waiver

. He argues the court’s oral statement is the best evidence of the contract because the court recited, had the authority to enforce , and was a party to the

4 Defendant argues his counsel was ineffective for failing to object at sentencing when the court struck defendant’s actual presentence credits. The People, however, do not argue forfeiture. The People contend that defendant made the claim cognizable by filing a postjudgment motion to cor rect his sentence. While defendant did have a statutory obligation to file a motion per Penal Code section 1237.1 prior to raising any appeal based solely on a sentencing challenge, he did not preserve his claim for review with a prompt objection. ( Peopl e v. Scott (1994) 9 Cal.4th 331, 351.) In any event , because the People do not analyze defendant’s claim under an ineffective assistance of counsel lens, neither do we.6

agreement

. Defendant’s argument misconstrues the court’s role in plea bargaining and
therefore misconstrues its role in negotiating a Cruz waiver. “It is well settled that a plea bargain is a tripartite agreement which requires the consent of the defendant, the P eople, and the court.” ( People v. Yu (1983) 143 Cal.App.3d 358, 371.) “Because the charging function is entrusted to the executive, ‘ the
court has no authori ty to substitute itself as the representative of the People in the negotiation process and under the guise of “ plea bargaining ” to “ agree ” to a disposition of the case over prosecutorial objection. ’ ” ( People v. Clancey (2013) 56 Cal.4th 562, 570 .)

“ ‘ On ce the trial court has accepted the terms of the negotiated plea, “[ i ] t lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a
defendant unless , of course, the parties agree.” ’ ” ( People v. Segura (2008) 44 Cal.4th 921, 931.) Our Supreme Court has interpreted Cruz waivers to be a part of plea agreements

. ( People v. Masloski , supra , 25 Cal.4th at pp. 1222

- 1223 [applying the principle that

“ ‘when the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained

- for sanction’ ”]

. ) In Masloski , the defendant argued her Cruz
waiver was judicially imposed and therefore distinct from her plea agreement. Masloski , at p. 1222.) The trial court in Masloski repeatedly characterized the Cruz waiver as a “contract” and asked the defendant, “Do we have a contract?” ( Masloski , at p. 1215.)
Des pite the trial court’s oral statements , our Supreme Court held that the Cruz waiver’s “provision for an increased sentence upon defendant’s nonappearance was part of the plea agreement and not ‘ a judicially imposed afterthought. ’ ” ( Masloski , at p. 1223.) Thus, like a plea agreement, the Cruz waiver was valid and enforceable. Here, defendant does not seek withdrawal from an invalid agreement

. Instead, he argues we should enforce the terms of the judicially imposed afterthought . But the court
could only approve of the prosecut or ’s and defendant’s agreement , not

-- as defendant7

suggests

-- unilaterally impose its own agreement

. 5 Th us , we are not confined to the
court’s oral statement when determining the terms of defendant’s Cruz wa iver.
Terms of a plea agreement must be recorded, lest the negotiation fall prey to the “greatest danger” of “secretiveness.” ( People v. West (1970) 3 Cal.3d 595, 609

- 610.) In West, our Supreme Court suggested four methods for recording negotiation terms : “(1) the bargain could be stated orally and recorded by the court reporter, whose notes then must be preserved or transcribed; (2) the bargain could be set forth by the clerk in the minutes of the court; (3) the parties could file a written stipulation stating the terms of the bargain; (4) finally, counsel or the court itself may find it useful to prepare and utilize forms for the recordation of plea bargains.” ( Id. at p. 610. ) Here, the court used the first two of these methods to record the agreemen t. First,
the parties orally stated the agreement on the record , indicating that defendant agreed to waive “all” of his credits; then, the court orally stated the agreement and used the term “good

- time work

- time credits.” Second, the clerk set forth the agreement in the minute
order and noted actual credits : “[Defendant] admits probation violation[.] [¶] [Defendant] enters Cruz waiver

-- waives all CTS [credit time served] if FTA [failure to appear] or dirty test[.]” (Italics added.) Because portions of the oral and written statements conflict, the terms of defendant’s agreement are ambiguous. ( People v.
Shelton , supra, 37 Cal.4th at p. 767.) To resolve this ambiguity, we can determine the mutual intention of the parties by looking at objective manifestations of intent, such as the surrounding circumstances and subsequent conduct. ( Ibid. ) Looking to the record, it is clear the parties intended fo r defendant to waive his actual credits, not solely conduct credits. The prosecution clarified this term by asking, “Actual?” Both defendant and his counsel replied, “Yes.” The prosecution again

5 That the court “had authority to fulfill the state’s side of the bargain” is irrele vant to the agreement’s interpretation.8

clarified, “Okay. If he agrees to the Cruz waiver, he wai ves all of his credits.”
D efendant himself again answered affirmatively, “Absolutely. Sure.” When seeking the Cruz waiver, defendant himself offered, “I would be willing to take any additional time.” (Italics added.) At sentencing, defendant acknowled ged the Cruz waiver but contended, “I know you probably don’t believe me, but I would never jeopardize 285 days over that period of time.” While it is unclear whether defendant used actual or conduct credits to calculate the 285 days he referenced, the we ight of the record indicates his contention concerned the drug test results

-- not the amount of credits the court struck from his

sentence. Indeed, o nly on appeal does defendant distinguish between actual and conduct
credits. In any event, the judge

-- who presided over the Cruz waiver and sentencing hearings

-- subsequently clarif ied his use of the term “good

- time work

- time credits.”
When denying defendant’s motion to correct the record, the judge reviewed the transcripts from the Cruz waiver and sent encing hearings and concluded defendant agreed to waive all presentence credits in the event he failed to comply with the conditions of his temporary release

. In a written order, the judge provided, “[a]lthough the Court emphasized ‘good

- time work

- time cr edits’ at one point in a proceeding, no ‘new bargain’ was struck.”
Based on all the evidence surrounding the making of defendant’s plea agreement and the subsequent conduct of the parties , we conclude the mutual intention of the parties
was for defendant to waive all his presentence credits , both actual and conduct

. Accordingly, defendant’s argument to the contrary lacks merit. Similarly, we reject defendant’s contention we should presume the judge accurately stated the agreement on the record a t the Cruz waiver hearing. (Evid. Code, §664

. ) “ As a general rule, when there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. [Citation.] [Our] California Supreme Court has also stated that ‘a record that is in conflict will be9

harmonized if possible,’ but if the reporter’s transcript and the clerk’s transcript

. . . cannot be reconciled, we do not automatically defer to the reporter’s transcript, but rather adopt the transcript that sho uld be given greater credence under the circumstances of the particular case.” ( People v. Contreras (2015) 237 Cal.App.4th 868, 880, quoting People
v. Harrison (2005) 35 Cal.4th 208, 226.) Under this principle, the record demonstrates the judge did not a ccurately state the terms of the agreement on the record and we do not
defer to his statement s

. DISPOSITION The judgment is affirmed.

/s/ Robie, Acting P. J.

We concur:

/s/ Mauro, J.

/s/ Hoch, J.