Cruz waiver

"We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for 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." (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 [246 Cal.Rptr. 1, 752 P.2d 439].)

"A "Cruz waiver" gives a trial court the power to “withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term,” if the defendant willfully fails to appear for sentencing. (People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3, citing People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)

(People v. Vargas (1990) 223 Cal.App.3d 1107.)

(People v. Masloski (2001) 25 Cal.4th 1212.)

People v. Rabanales (2008) 168 Cal.App.4th 494

A defendant may wish to be released from custody to “clean up his or her affairs” prior to reporting to jail or state prison. People v. Cruz, 44 Cal. 3d 1247, 1254 n.5, 246 Cal. Rptr. 1, 752 P.2d 439 (1988), permits the defendant and the court to enter into an agreement that certain sanctions will be imposed if the defendant fails to appear later for sentencing or to commence the custody term. “We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for 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.” (Id., fn. 5.)

People v. Vargas, 148 Cal. App. 4th 644, 55 Cal. Rptr. 3d 837 (4th Dist. 2007), discusses an alternative form of Cruz waiver, often referred to as a “Vargas waiver.” There, the court told the defendant he would be sentenced to the upper term if he violated any conditions of the release agreement. While the defendant was released, he committed a robbery. The appellate court found no error in the court imposing the upper term solely because of the agreement with the defendant. (Id. at pp. 649–650.) The defendant also argued that it was improper for the court to impose the upper term because of a new law violation when the guilt had not been determined by a jury. The court rejected the claim because the defendant had agreed to the following: “that any willful violation of these terms will be decided by the sentencing judge without a jury and by a preponderance of the evidence. I further understand and agree, that if the court finds any willful violation of these terms, the court will be free to impose any greater sentence than expressly stated in this agreement, up to the maximum penalty for each offense and enhancement to which I am pleading guilty/no contest or admitting, and I will not have any right to withdraw my plea.” (Id. at p. 652; see also People v. Puente, 165 Cal. App. 4th 1143, 1145 n.2, 81 Cal. Rptr. 3d 380 (4th Dist. 2008); People v. Carr, 143 Cal. App. 4th 786, 49 Cal. Rptr. 3d 548 (4th Dist. 2006), reh'g denied, (Oct. 30, 2006).)

The plea agreement may alternatively provide for increased sentence in the event the defendant fails to appear for sentencing. (People v. Masloski, 25 Cal. 4th 1212, 108 Cal. Rptr. 2d 484, 25 P.3d 681 (2001).) For example, in People v. Rabanales, 168 Cal. App. 4th 494, 85 Cal. Rptr. 3d 607 (4th Dist. 2008), habeas corpus dismissed, 2011 WL 1599619 (C.D. Cal. 2011), the defendant pleaded guilty based on an indicated sentence and was released on his own recognizance with a Cruz/Vargas waiver. The defendant subsequently was arrested for domestic violence and returned to court. The prosecutor submitted a police report and the court found the Vargas waiver had been breached and imposed the higher agreed upon sentence. The court upheld the higher sentence and found no violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Cruz requires the following: “(1) the defendant must be fully advised of his or her rights under section 1192.5, (2) the waiver must be express, (3) the waiver must be obtained at the time of the trial court's initial acceptance of the plea, and (4) the waiver must be knowing and intelligent.” The enhanced punishment may be set aside, however, if the court gives the defendant an incomplete advisement. (See Cruz at p. 1254, fn. 5.)

The following procedure was determined appropriate in People v. Casillas, 60 Cal. App. 4th 445, 451–452, 70 Cal. Rptr. 2d 290 (5th Dist. 1997):

1. If the defendant fails to appear for sentencing after entering a plea bargain but has made no agreement with the court regarding the consequences of such failure, the court may refuse to follow the plea bargain, but the defendant is entitled to withdraw the plea if the court chooses to impose a different sentence.

2. The same rule applies when, during plea proceedings but after the parties have negotiated the plea agreement, the court imposes an additional condition providing for the sanction for nonappearance; e.g., the condition is imposed unilaterally by the court and is not a part of the underlying plea agreement. (People v. Vargas, 148 Cal. App. 4th 644, 650–651, 55 Cal. Rptr. 3d 837 (4th Dist. 2007); People v. Jensen, 4 Cal. App. 4th 978, 984, 6 Cal. Rptr. 2d 201 [1st Dist.] 1992); People v. Morris, 97 Cal. App. 3d 358, 364, 158 Cal. Rptr. 722 [1st Dist.] 1979) (abrogation recognized by, People v. Gonzalez, 2005 WL 914492 (Cal. App. 2d Dist. 2005)).)

3. If the defendant has specifically negotiated the consequences of non-appearance as part of the plea agreement, the court may impose additional consequences consistent with the terms of the agreement without allowing the defendant to withdraw the plea. (People v. Masloski, 25 Cal. 4th 1212, 108 Cal. Rptr. 2d 484, 25 P.3d 681 (2001).)

The procedure discussed in Casillas would be applicable to any condition of release imposed by the court. Typically courts will impose requirements that the defendant return to court or jail at a certain time, not commit any law violations, and return to custody free of any measurable drugs or alcohol. Other conditions could require the defendant to have no contact with the victim, attend a certain number of “self-helps,” check in with the probation officer at specified times, or not leave a certain geographic area. Undoubtedly the court would be free to impose any condition reasonably related to assuring the defendant will return to custody when required and will not cause problems during the short period of release.

The failure to move to withdraw a plea based on a defective Cruz admonishment waives the right to complain of the increased sentence on appeal. (People v. Murray, 32 Cal. App. 4th 1539, 1546, 39 Cal. Rptr. 2d 7 (5th Dist. 1995), reh'g denied, (Mar. 23, 1995): “we conclude appellant waived his right to complain about deviations from the plea bargain when he failed to move to withdraw his plea at the sentencing hearing.”)

If the defendant is to be released from custody, a signed promise to appear back in court is necessary for the future application of the “crime-bail-crime” allegation under section 12022.1 if the defendant subsequently commits a new felony. (People v. Hernandez, 177 Cal. App. 4th 1182, 99 Cal. Rptr. 3d 548 (5th Dist. 2009).)

In In re Duval, 44 Cal. App. 5th 401, 257 Cal. Rptr. 3d 557 (4th Dist. 2020), the court found the defendant was entitled to habeas corpus relief challenging the finding of a willful failure to appear at sentencing after a Cruz waiver; willfulness is a requisite finding to set aside the plea agreement under a Cruz waiver.