People v. Blair CA5 ( 2021 )

Filed 6/14/21 P. v. Blair 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F081269
Plaintiff and Respondent,
(Madera Super. Ct.
v. No. MCR061614)
WAYNE EUGENE BLAIR,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
James LaPorte, and Michael J. Jurkovich, Judges.†
Paul Kleven, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P.J., Levy, J. and Detjen, J.
†
Judge Blea presided over the bail review hearing and probation report and
judgment hearing; Judge LaPorte presided over the probation report and review hearing;
and Judge Jurkovich presided over the sentencing hearing.
INTRODUCTION
Appellant and defendant Wayne Eugene Blair pleaded guilty to receiving stolen
property and was sentenced to three years in prison. On appeal, his appellate counsel has
filed a brief that summarizes the facts with citations to the record, raises no issues, and
asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d
436 (Wende).) We affirm.
FACTS1
Around 1:45 p.m. on January 6, 2019, Deputy King of the Madera County
Sheriff’s Department responded to a dispatch about a theft at a winery on Avenue 16; he
met with Steve Schafer. Mr. Schafer stated that a break in had occurred on the property,
but he did not know when it occurred or whether any items were stolen. Mr. Schafer said
he would contact someone who was more knowledgeable about what was on the property
and forward the surveillance video to King.
On the following day, Mr. Schafer informed Deputy King that two Kawasaki
Mules (open cab utility vehicles) were stolen, and the theft occurred between 10:00 a.m.
and 12:00 p.m. on January 6. King received and reviewed the surveillance video, and it
showed a black Dodge Durango towing a red dual-axle flatbed trailer; the vehicle’s
license plate number was visible on the video. King sent out a dispatch with the vehicle’s
description.
Within 20 minutes of the dispatch, deputies conducted a traffic stop of a Dodge
Durango that matched the description and license plate. Deputy Stritzel went to
defendant’s house and found a red dual-axle flatbed trailer parked in the driveway.
Deputy King also went to defendant’s house, confirmed the trailer matched the one on
the video, and observed a covered object on the trailer that appeared to have wheels and
was shaped like an ATV.
1 The facts are from the police reports, as summarized in the probation report.
2.
Defendant was taken to the sheriff’s department and advised of the warnings
pursuant to Miranda v. Arizona (1966) 384 U.S. 436; he agreed to answer questions.
Deputy King asked defendant what he was doing on January 6, 2019. Defendant said he
was “ ‘laid up all day’ at home.” King asked if he bought “the Kawasaki [M]ule that was
located in his driveway.” Defendant said it belonged to a friend, and he was working on
it for him. King advised defendant that the vehicle was stolen from a winery, there were
cameras on the property, and “the paper mask he wore did not help him out too much.”
Defendant replied, “ ‘Well, I guess I’ll just go to jail then.’ ” King said okay, and
defendant replied, “ ‘Come on, you know I ain’t gonna tell you shit!’ ” King asked
defendant if he would rather go to jail. Defendant said he did not want to go jail but
knew that he would. Defendant was arrested.
PROCEDURAL BACKGROUND
On January 9, 2019, a felony complaint was filed in the Superior Court of Madera
County charging defendant with counts 1 and 2, unlawfully taking two vehicles without
consent with intent to permanently deprive the owner of title and/or possession (Veh.
Code, § 10851, subd. (a)).
Plea and Cruz waiver
On September 10, 2019, the court granted the prosecutor’s motion to amend the
information to add count 3, felony receiving stolen property, a vehicle (Pen. Code,
§ 496d, subd. (a)).
Thereafter, defendant pleaded guilty to count 3, for a maximum term of 16 months
in prison, and dismissal of the other charges in this complaint and unrelated cases. The
parties stipulated to the crime reports from the sheriff’s department as the factual basis.
3.
The court advised of and defendant entered waivers pursuant to People v. Harvey
(1979) 25 Cal.3d 754,2 and People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).3As to the Cruz
waiver, the court stated:
“Under a Cruz waiver, you would be released from custody today. You
would be released on your own recognizance. You would have instructions
to report to the probation department on a particular day, and you would be
ordered to return to court on a specific date. If you failed to report to the
probation department as ordered or for any scheduled appointment with
probation or you failed to return to court at any time before sentencing, then
your plea would become an open plea. What that means is you could be
sentenced up to 3 years in custody and fined up to $10,000, and you
wouldn’t be given the opportunity to withdraw your plea. Do you
understand that?”
Defendant said he understood and agreed to the Cruz waiver.
The court ordered defendant’s release on his own recognizance. Defendant was
further ordered to appear at the probation department within one day after his release
from custody and also appear at the next court hearing on October 8, 2019.
Failures to appear
On September 18, 2019, defendant failed to appear at the probation department as
directed. On September 24, 2019, the probation department advised the court about
defendant’s failure to appear, and that it had no subsequent contact with him.
On October 8, 2019, defendant appeared in court as ordered. The court again
referred defendant to the probation department and ordered him to return to court on
November 6, 2019.
2 “A Harvey waiver permits the sentencing court to consider the facts underlying
dismissed counts and enhancements when determining the appropriate disposition for the
offense or offenses of which the defendant stands convicted. [Citation.]” (People v.
Munoz (2007) 155 Cal.App.4th 160, 167.)
3 As we will discuss below, “[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. [Citation.]”
(People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.)
4.
On October 22, 2019, the probation department informed the court that defendant
never appeared as directed for any appointments.
On November 6, 2019, defendant failed to appear in court as ordered. The court
noted defendant’s Cruz waiver and issued a bench warrant.
On February 25, 2020, defendant was returned to custody and appeared in court.
The court referred him to the probation department for a report and recommendation, and
defendant remained in custody.
Sentencing
On April 30, 2020, the court conducted the sentencing hearing. The court asked
defense counsel if he contested the finding that defendant violated the terms of the Cruz
waiver release, and counsel said no. Counsel requested the court impose a split sentence
with mandatory supervision for the three-year term.
The court found defendant was presumptively ineligible for probation and there
were no unusual circumstances. The court also found that defendant was not a good
candidate for a split sentence or mandatory supervision because he had eight prior
probation violations, and adopted the probation report’s findings to deny a split sentence
based on defendant’s “ ‘ongoing criminality, poor prior performance on supervision, and
his prior record of criminality,… and there’s no indication he is willing or able to comply
with another grant of supervision.’ ”
The court sentenced defendant to the upper term of three years for count 3,
receiving stolen property, and imposed various fines and fees. The court granted the
prosecutor’s motion and dismissed the remaining counts, along with two unrelated
misdemeanor cases.
On June 4, 2020, defendant filed in pro. per. a timely notice of appeal and
requested a certificate of probable cause, based on the court’s alleged violation of the
plea agreement because it imposed a three-year term instead of the agreed upon sentence
of 16 months. The court did not rule on the request for a certificate of probable cause.
5.
DISCUSSION
While the court did not respond to defendant’s request for a certificate of probable
cause, we note that his claim of error is meritless. At the plea hearing, defendant entered
a Cruz waiver. Cruz held that a defendant may waive the right to withdraw his guilty
plea if he is “fully advised” of that right. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) If a
defendant is fully advised of his rights, “the trial court may withdraw its approval of the
defendant’s plea and impose a sentence in excess of the bargained-for term[]” if the
defendant violates a condition of his plea. (Ibid.) A Cruz waiver must be “obtained at
the time of the trial court’s initial acceptance of the plea, and it must be knowing and
intelligent.” (Ibid.)
Once a defendant agrees to a Cruz waiver, he is no longer permitted to withdraw
the plea if the court decides to impose a greater sentence than the bargained-for term after
the defendant fails to appear for sentencing. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; see
also People v. Masloski (2001) 25 Cal.4th 1212, 1214, 1223.) A Cruz waiver thus “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. [Citation.]” (People v. Puente, supra, 165 Cal.App.4th at p. 1146, fn. 3.)
When defendant entered the Cruz waiver, the court advised him that the plea
agreement for 16 months would no longer be applicable if he failed to appear as ordered
for either court hearings or probation appointments. Defendant failed to appear for
several appointments and hearings, a bench warrant was issued, and he was taken into
custody. The court was thus no longer bound by the plea agreement for 16 months.
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on November 2, 2020, we
invited defendant to submit additional briefing. To date, he has not done so.
6.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
7.