PEOPLE v. COLE (1988)

Kim Cole appeals from the judgment entered upon her negotiated plea of guilty to selling cocaine and admission that she suffered a prior felony conviction for which she served a separate prison term.  (Health & Saf. Code, § 11352;  Pen.Code, § 667.5, subd. (b).)  Appellant was sentenced to four years in prison and contends:  “The court erred in denying appellant's request to withdraw her guilty plea.”

On August 27, 1987, appellant entered the negotiated plea and admission pursuant to the terms of an agreement in which she was to be granted five years probation, as a condition of which she was to serve one year in jail.   She was also advised that she could receive up to six years in prison if she failed to return for sentencing hearing.   Although appellant assented to the potentially enhanced sentence, she was not advised of her right to withdraw her plea if the court declined to follow the agreement.   Appellant did not return for her sentencing hearing and a bench warrant issued for her arrest on September 29, 1987.   On October 9, 1987, she was returned to the trial court.   On November 16, 1987, she was sentenced to four years in prison, following denial of her motion to withdraw her plea.¹

The contention that the trial court erred in declining to permit withdrawal of the negotiated plea and admission is meritless.   In People v. Cruz (1988) 44 Cal.3d 1247, 246 Cal.Rptr. 1, 752 P.2d 439, it was observed that a person may “expressly waive [his] 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., at p. 1254, fn. 5, 246 Cal.Rptr. 1, 752 P.2d 439.)   Here, the trial court did not withdraw approval of the negotiated settlement, rather it honored it to the letter.   All parties and the court expressly agreed to one of two dispositions dependent solely upon appellant's honoring her promise to return.   She was advised of, and waived, her rights only after being fully advised, and agreeing, that one consequence was the sentence presently under review.   The trial court was not required to permit withdrawal of the plea merely because appellant elected to become a fugitive, thereby rejecting probation as a sentencing choice.  (People v. Cruz, supra, 44 Cal.3d 1247, 246 Cal.Rptr. 1, 752 P.2d 439;  see People v. Giminez (1975) 14 Cal.3d 68, 73, 120 Cal.Rptr. 577, 534 P.2d 65.)

The judgment is affirmed.

FOOTNOTES

1.   The following relevant colloquy occurred at the time of the plea and admission:  “MR. BUDDE [Defense Counsel]:  Your Honor, I have discussed with her the proposal.   She would like to accept the plea bargain.   However, she is concerned about placing her son.  [¶]  She would like a stay of about two weeks to effectuate that.   I told her that I thought the only way that would happen is if she pleads out today with five years suspended, one year in the county stayed until that date with the understanding that she—if she didn't come back on that date, was late or any excuse, she would go directly into state prison for five years as a violation of probation.  [¶]  THE COURT:  We need a probation officer's report to be sentenced today.   But I would put it over to P and S for four weeks.  [¶]  Do you understand if she doesn't come back on the date of P and S, the court will consider it an open plea.   She could in fact do six years in the state prison.  [¶]  Is that your understanding, Miss Cole?   [¶]  THE DEFENDANT:  Yes.  [¶]  THE COURT:  You agree to that?  [¶]  THE DEFENDANT:  Yes.”Shortly thereafter, the prosecutor again advised appellant of the terms of the agreement, as follows:  “MR. SIMS [Dep. Dist. Atty.]:  In the event you don't come back, you could be sentenced to state prison for up to six years for the crime you are pleading guilty to.  [¶]  Do you understand that?   [¶]  THE DEFENDANT:  Yes.  [¶]  MR. SIMS:  Also, if you violate any terms and conditions of your probation during this five-year grant, you could be sentenced to state prison for up to the six years I just told you about.”

GOERTZEN, Associate Justice.

McCLOSKY, Acting P.J., and GEORGE, J., concur.