Filed 4/28/15 P. v. Thornton CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. WILLIAM CECIL THORNTON, Defendant and Appellant. D065827, D065991

(Super. Ct. No. SCE334918)

APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed. John L. Dodd, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Pe ter Quon, Jr. and Stacy Tyler, Deputy Attorneys Ge neral, for Plaintiff and Respondent. This case arises from a guilty plea and admission of alleged prior convictions by appellant, William Cecil Thornton , without agreement from the prosecutor after the court2 had given an indicated sentence. As part of the process of discussing Thornton's plea, the
court also obtained a " Cruz waiver," 1 that is an agreement by Thornton that if he failed to appear at sentencing, or was arrested for a new offense before the scheduled sentencing, the court's "deal" would be off and the court could sentence as it wished. As the facts developed, Thornton was arrested for a new offense prior to the sentencing hearing and the court imposed a sentence greater than th e indicated sentence. Thornton, acting in propria persona, did not object to the sentence or the impact of the Cruz waiver, and did not seek to withdraw his plea based on any of the court's postplea actions. Now, for the first time on appeal, Thornton contends the c ourt erred in not advisi ng him of his right to withdraw his plea under Penal Code 2 section 1192.5 and that the court erred in imposing a restitution fine of $1,000. We will find that Thornton has forfeited bot h contentions by failure to raise either one in the trial court. However, we do obse rve there are troubling aspects to this case. First, although Thornt on was properly allowed to repr esent himself, he was plainly incompetent to deal with th e issues presented here. Thornton unleashed a veritable blizzard of motions and filings in this case , which was resolved before the preliminary hearing. Yet, none of the motions is raised here and he did nothing in the trial court to

1 A Cruz waiver is a waiver of the rule announced in People v. Cruz (1988) 44 Cal.3d 1247, which said a court could not reje ct a plea agreement and impose a different sentence without allowing the defenda nt to withdraw the guilty plea. 2 All further statutory references are to the Penal Code unless otherwise specified.3 address any problems with his plea or sentenci ng, giving some merit to the adage that one who represents himself has a fool for a client. Perhaps more disturbing is the outcome of this case. Thornton's crime was failure to timely update his annual sex offender regist ration, concededly by only a few days. The record shows he had earlier tried to register at the El Cajon Police Department, but he failed to arrive in time for the department 's very limited hours for such registrations. Lastly, Thornton was arrested at the San Di ego Sheriff's Department where he had gone to update his registration. The punishmen t: six years in prison as a second strike offender, of which he will have to serve 80 perc ent. Our discomfort aside, we will affirm the judgment based on well-establ ished principles of forfeiture. PROCEDURAL BACKGROUND After discussions with the trial c ourt, and without any agreement by the prosecution, Thornt on pleaded guilty to failu re to register as a sex offender (§§ 290, subds. (b) & (c); 290.005, subd. (a); 290.01 8, subd. (b)). Thornton also admitted two prison priors (§ 667.5, subd. (b)) and one serious/violent felo ny prior conviction (§ 667, subds. (b)-(i)). Thornton also made a " Cruz waiver." Thornton was released pending his senten cing hearing. However, he was arrested and charged with several misdemeanor offe nses before the sentencing hearing. Thereafter, Thornton filed a motion to withdraw his plea on the grounds his 1987 Tennessee conviction, on whic h the section 290 registration was based, was unlawful and that he had appeals pending with regard to challenges to the Tennessee conviction. The court denied the motion. The court declined to strike the serious/violent felony prior4 conviction and sentenced Thornton to the middl e term of two years, doubled because of the strike prior, plus two year s for the prison priors. Thornton appealed and obta ined a certificate of prob able cause (§ 1237.5). STATEMENT OF FACTS In 1987, Thornton was convicted in Tennessee of sexual battery, which later required him to register in California as a sex offender. Thornton was released from prison in California where he had been inca rcerated for unrelated offenses in midSeptember 2013. He was informed by his paro le officer that he had to register. On October 17, 2013, Thornton was stopped by police and ad mitted he was late in his registration. He said he was on his wa y to register when he was arrested. DISCUSSION I PENAL CODE SECTION 1192.5 Thornton claims his sentence must be vacated because the trial court failed to advise him that he could withdraw his guilty plea if the trial court could not honor the "indicated sentence" which was stated at the ti me of the plea. Secti on 1192.5 provides, in part: "Upon a plea of guilty . . . to an accusatory pleading charging a felony, . . . the plea may specify th e punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, . . . . "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, . . . cannot be sentenced on the plea to a punish ment more severe than that5 specified in the plea and the cour t may not proceed as to the plea other than as speci fied in the plea. "If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) it s approval is not binding, (2) it may, at the time set for the hearin g on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matte r, and (3) in that case, the defendant shall be permitted to withdr aw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. "If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be de emed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available." First, we are satisfied that Thornton ha s forfeited any challenge he may have to the plea or the sentence. Thornton was fully informed that he was making a so-called " Cruz waiver" and told the implications of violating the terms of such waiv er would be that the court would not be obliged to stay with th e indicated sentence. Literally, under such waiver Thornton had no right to withdraw his plea if he violated the terms of the waiver and the court thereafter rejected the indicate d sentence. At the sentencing hearing the court asked Thornton several questions about the proposed sentence. First, Thornton was asked why he wanted to withdraw his plea. He said it was because of his 1987 Tennessee conviction and his on-going challe nges of it, including an appeal in the Ninth Circuit Court of Appeals. When asked if there were any other reasons, Thornt on said "No, sir." Thornton was next asked if he had any comments on the Cruz waiver and his violation of the terms of that waiver. Thornton said: "No, sir." Finally, he was asked if he had any comments on the matter of sentence. Again his answer was: "No, sir." Thus,6 it is clear that Thornton never raised any of the current issues at the time of sentencing. It is well established that failure to timely object to sentences forfeits the right to challenge those sentences on appeal, unless the sentences are "unauthorized," which is not an issue in this case. ( People v. Scott (1994) 9 Cal.4th 331, 352-354; People v. Villalobos (2012) 54 Cal.4th 177, 182.) Having failed to raise any challenge to the application of section 1192.5 or the Cruz waiver in the trial court Thornton has fo rfeited any such claim on appeal. Even if these issues have not been forfe ited, they are not meritorious. II RESTITUTION FINE Thornton contends the court violated th e "plea agreement" by imposing a $1,000 restitution fine. Thornton did not raise any objection to the fine at the time of sentencing. Rather, he contends the fi ne was unauthorized because of his plea agreement. First, there was no plea agreement. Th ornton entered his plea after receiving an indicated sentence from the trial court. Th e prosecutor did not participate in the discussions and did not sign th e change of plea form. The record is ambiguous regarding the re stitution fine. Thornt on did not check the box on the plea form, which he f illed out, that indicated a restitu tion fine of up to $10,000 would be imposed. Further, the court made a comment in reviewing the form that there would be no restitution, of course this is a victimless crime. Duri ng the same discussion, however, the court said: "It's a fine of up to $10,000, correct?" To which Thornton7 responded: "Yes, sir." The co urt went on to say: "There's no restitution involved, so you left that one blank." If Thornton was confused about the term s under which he entered his plea, his remedy was to raise the issue in the trial court. He did not do so a nd thus he has forfeited the claim. ( People v. Villalobos, supra , 54 Cal.4th at p. 182.) As we have pointed out above, there was no plea agreement. Further, the record shows Thornton was aware that a fine of up to $10,000 would be imposed. Thus any confusion as to which box he should have ch ecked on the change of plea form does not mean he was unaware of the potential for a s ubstantial fine. It also negates any possible inference that Thornton had a "plea agreement" in which the court ha d agreed to waive a mandatory fine. DISPOSITION The judgment is affirmed.

HUFFMAN, Acting P. J. WE CONCUR:

HALLER, J.

AARON, J.