People v. White CA1/2 ( 2021 )

Filed 11/29/21 P. v. White CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v. A158708
TERRANCE LAMONT WHITE, (San Mateo County Super.
Defendant and Appellant. Ct. No. 18-NF-013021-A)
Defendant Terrance Lamont White appeals from the trial court’s
imposition of a four-year sentence for one count of theft of personal
identifying information with a prior conviction under a negotiated disposition
of his case. The court imposed this sentence based on its conclusion that
White had violated his plea agreement by willfully failing to appear at his
February 2019 sentencing hearing as he had promised under a Cruz waiver.1
White argues the trial court erred in finding that he willfully failed to appear
because the only support for it, the prosecutor’s representation at the
A Cruz waiver, named for People v. Cruz (1988) 44 Cal.3d 12471
(Cruz), is an agreement by the defendant that if he or she is released from
custody after the trial court accepts a plea, but before sentencing, the
defendant promises to not commit other crimes and to appear for the
sentencing hearing or potentially face the maximum term sentence for the
crimes pleaded to regardless of the plea agreement. (People v. Vargas (2007)
148 Cal.App.4th 644, 646; Cruz, at p. 1254, fn. 5.)
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sentencing hearing that White was not listed in an online database as being
in custody in Alameda County, contrary to the suggestion of White’s counsel,
was merely an attorney’s statement and not evidence that the court could
legally rely on for its finding.2 We disagree and affirm.
BACKGROUND
In November 2018, the San Mateo County District Attorney filed an
information charging White with one count of theft of personal identifying
information with a prior conviction (Pen. Code, § 530.5, subd. (c)(2)3), one
count of bringing contraband into jail (§ 4573, subd. (a)) and two counts of
giving false information to a police officer (§ 148.9, subd. (a)). Soon
thereafter, White agreed to plead no contest to theft of identifying
information with a prior conviction in exchange for a maximum sentence of
32 months. After accepting White’s plea, the trial court found him guilty of
the count and dismissed the remaining counts.
After White waived his rights under Cruz, supra, 44 Cal.3d 1247 (which
the court indicated was referred to in San Mateo County as a “Kemp O.R.”)
on his plea declaration form, the court granted him release on his own
recognizance so he could attend his mother’s funeral. Consistent with a Cruz
waiver, the court told White that, should he fail to return for his sentencing
hearing, his plea deal would be “off the table” and he could be sentenced for
up to six years.
2 The People do not argue that White has forfeited his claim by failing
to first object below. Therefore, we address its merits. Indeed, when White
finally did appear for sentencing in September 2019, he failed to produce any
evidence that he was absent from the February 2019 sentencing hearing
because he was in custody in Alameda County or because of some other
reason beyond his control.
3 Statutory references are to the Penal Code unless otherwise stated.
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White did not appear for his February 2019 sentencing hearing. At the
hearing, White’s attorney represented to the court that he had “received a
telephone call, a couple days after you released [White], from somebody, I
don’t know who, that said that he had been in attendance at his mother’s
funeral. And then he was arrested on a probation violation in Alameda
County arising out of this case.” The district attorney responded that,
“looking at the Alameda County jail inmate locator, it didn't have any return
for the defendant.” Based on the prosecutor’s representation, the court found
that White “is not in custody in Alameda. He was aware of today’s date for
sentencing looking at the judge’s face sheet from December 28th. . . . So no
excuse for showing––for lack of appearance.” 4
In September 2019, the court sentenced White to the mid-term of two
years doubled because of a prior strike for a total prison term of four years.
The court found it “significant, although there was a 32-month top [agreed to
in the plea deal], the defendant did violate the Kemp O.R., what is known in
the rest of the state as a Cruz waiver, in failing to appear for sentencing . . . .”
The court also noted that White had had previous opportunities to correct his
4 The minute order from the hearing states that the “Kemp O.R.
revoked” because White failed to appear as a result of being “in custody in
Alameda County.” Given the court’s statements at the hearing, it is clear the
minute order is in error; in any event, the court’s oral finding controls. (See
People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement of
judgment “controls over the clerk’s minute order”]; People v. Zackery (2007)
147 Cal.App.4th 380, 385 [“Where there is a discrepancy between the oral
pronouncement of judgment and the minute order . . . , the oral
pronouncement controls”].)
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behavior and had not corrected it as indicated by his criminal and probation
history. It awarded him credits and imposed certain fines and fees.
White filed a timely notice of appeal.5
DISCUSSION
As we have discussed, under a Cruz waiver, a defendant who pleads
guilty or no contest may waive the right to be sentenced pursuant to the plea
agreement and agree to a greater sentence as a sanction for, among other
things, failing to appear at a sentencing hearing. (Cruz, supra, 44 Cal.3d at
p. 1254, fn. 5; People v. Masloski (2001) 25 Cal.4th 1212, 1219-1224.) Before
the trial court can impose the sanction of a greater sentence, it must first find
the defendant willfully violated a term of the Cruz waiver. (Cruz, at p. 1254,
fn. 5; Masloski, at p. 1221.)
“The terms ‘willful’ or ‘willfully,’ as used in penal statutes, imply ‘simply
a purpose or willingness to commit the act . . . .’ The terms imply that the
person knows what he is doing, intends to do what he is doing, and is a free
agent.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; People v. Atkins
(2001) 25 Cal.4th 76, 85 [“ ‘[T]he terms “willful” or “willfully,” when applied
in a penal statute, require only that the illegal act or omission occur
“intentionally,” without regard to motive or ignorance of the act’s prohibited
character’ ”]; § 7(1) [as used in the Penal Code, “[t]he word ‘willfully . . .
implies simply a purpose or willingness to commit the act or make the
5 In filing his appeal, White did not obtain a certificate of probable
cause under section 1237.5. He argues he did not need one because his
appeal raises post-plea claims that do not challenge his plea’s validity. The
People do not disagree. White is correct. (See People v. Buttram (2003)
30 Cal.4th 773, 780 [no certificate needed to appeal from proceedings held
subsequent to the plea for the purpose of determining the penalty to impose];
People v. Rabanales (2008) 168 Cal.App.4th 494, 500-501 [same].)
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omission referred to”]; see People v. Cervantes (2009) 175 Cal.App.4th 291,
293-295 [reversing trial court finding of a willful probation violation when
defendant was in the custody of immigration officials at the time of his
review hearing]).
We review the trial court’s finding under the substantial evidence test.
(People v. Rabanales, supra, 168 Cal.App.4th at p. 509.) That is, “ ‘the power
of an appellate court begins and ends with the determination as to whether,
on the entire record, there is substantial evidence, contradicted or
uncontradicted, which will support the determination.’ ” (Ibid.)
The parties do not cite a Cruz waiver case involving a court’s reliance on
an attorney representation, nor have we found one in our own research.
Nonetheless, we conclude the trial court could rely on the prosecutor’s
representation for two reasons: first, the rules of evidence in sentencing
matters are more relaxed than at trial and, second, attorney representations
have been treated as tantamount to evidence in circumstances analogous to
those before us.
The California Supreme Court has explained, “Once guilt has been
determined, evidence which would be inadmissible on the issue of guilt may
nevertheless be received as bearing on the punishment to be imposed.
(Williams v. New York (1949) 337 U.S. 241 [93 L. Ed. 1337, 69 S. Ct. 1079].)”
(People v. Peterson (1973) 9 Cal.3d 717, 725.) The Peterson court observed,
“In Williams the Supreme Court rejected claims that a convicted man was
deprived of due process by procedural practices where the sentencing judge
relied on information not obtained through formal proceedings from persons
whom the defendant had not been permitted to confront or cross-examine. In
so concluding the court distinguished evidentiary procedural limitations
applicable to the guilt-determining processes from those applicable to
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hearings relating to the fixing of punishment after a determination of guilt
has been made, and noted the existence of a policy predating the Constitution
whereby a sentencing judge ‘could exercise a wide discretion in the sources
and types of evidence used to assist him in determining the kind and extent
of punishment to be imposed within limits fixed by law.’ ” (Ibid.) “The
[Williams] court concluded that the ‘due process clause should not be treated
as a device for freezing the evidential procedure of sentencing in the mold of
trial procedure.’ ” (Id. at p. 726; see People v. Hall (2019) 39 Cal.App.5th 831,
836, 840 [permitting the court’s consideration of reliable “unsworn hearsay”
in a probation report in a resentencing proceeding].)
Further, courts in multiple contexts have considered attorney
representations to courts worthy of consideration, with two courts stating
that they are “tantamount to sworn testimony.” (People v. Wolozon (1982)
138 Cal.App.3d 456, 460, fn. 4, citing People v. Laudermilk (1967) 67 Cal.2d
272, 286.) “ ‘[A]ttorneys are officers of the court, and “ ‘when they address the
judge solemnly upon a matter before the court, their declarations are
virtually made under oath.’ ” ’ ” (People v. Mroczko (1983) 35 Cal.3d 86, 112,
quoting Holloway v. Arkansas (1978) 435 U.S. 475, 485-486, disapproved on
other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Thus, in People v. Smith (2003) 30 Cal.4th 581, our Supreme Court, in
the course of determining whether the trial court had correctly concluded a
witness was unavailable for trial, indicated that “[t]he prosecution met its
burden of showing due diligence” (id. at p. 611), in part based on the
prosecutor’s “representation as an officer of the court” without the court
“requiring him to testify formally.” (Id. at p. 608.) The court concluded that,
although such “information may have been legally incompetent” for other
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purposes, “it sufficed to show that the prosecution made reasonable efforts to
locate” a missing witness. (Id. at p. 611.)
In People v. Mirenda (2009) 174 Cal.App.4th 1313, the court, in
evaluating whether defendant was prejudiced by a long delay in trial,
recognized certain representations by counsel as “credible evidence.” (Id. at
p. 1332.) The court pointed out that “ ‘ “[a]ttorneys are officers of the court,
and ‘ “when they address the judge solemnly upon a matter before the court,
their declarations are virtually made under oath[.]” ’ ” ’ ” (Ibid., citing
People v. Mroczko, supra, 35 Cal.3d at p. 112).
Similarly, in People v. Medina (1995) 11 Cal.4th 694, our Supreme
Court in reviewing a trial court’s decision to shackle a defendant during the
competency phase of proceedings, rejected the contention that “the
prosecutor’s uncontested statement cataloguing defendant’s prior violent
conduct in and out of the courtroom” did not provide evidentiary support for
its ruling. (Id. at p. 731.) The court concluded that “[t]he prosecutor was an
officer of the court whose representations of fact, made without objection or
rebuttal by defendant, properly could sustain the court’s ruling.” (Ibid.)
Based on this case law, we conclude White’s argument that the court
could not rely on the prosecutor’s representation to find that White had
willfully failed to appear for sentencing is without merit. The prosecutor’s
representation, albeit hearsay and not under oath, was made in a sentencing
proceeding, in which reliable, unsworn hearsay is regularly considered. The
representation itself was very reliable, both because the prosecutor was an
officer of the court and because he was reporting on his own review of a
government database. The court’s reliance on it is consistent with the case
law we have discussed.
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DISPOSITION
The sentence appealed from is affirmed.
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STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
People v. White (A158708)
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