PEOPLE v. KILGORE (1990)

David Kilgore appeals his sentence to the low term of 16 months in state prison after pleading nolo contendere to possession of a controlled substance (Health & Saf.Code, § 11350).   We affirm.

I. PROCEDURAL BACKGROUND

Appellant was originally charged with a second count of possession of paraphernalia for smoking and injecting a controlled substance.   He first agreed to plead nolo contendere to possession of a controlled substance, in return for dismissal of the second count and a grant of probation conditioned on service of no more than a year in county jail.   This plea was accepted at the plea hearing, but appellant requested permission to withdraw it when he learned that the court did not intend to release him on his own recognizance before sentencing.   At that point the prosecutor requested a bench conference, where a new bargain was evidently struck.   After conferring with his attorney, appellant reinstated his nolo contendere plea with the additional understandings that he would be released on “supervised O.R.,” but would be subject to the maximum sentence for his offense if he failed to cooperate with the probation department or failed to appear for sentencing.¹  Appellant said he understood the new bargain, and initialed a change in his plea form setting forth the new terms.²

Appellant was sentenced to state prison after he failed to cooperate with the probation department.³  At the sentencing hearing, the court denied appellant's motion to withdraw his plea.   The court also denied appellant's request for a hearing on his claim that he had attempted to cooperate with the probation department.

II. DISCUSSION

Appellant contends that the court erred in refusing to allow him to withdraw his plea because the court did not “adhere to the original bargain” when it imposed sentence.   A defendant has the statutory right to withdraw his plea if the court withdraws its approval of the plea bargain upon pronouncement of judgment.  (Pen.Code, § 1192.5.)   We are not persuaded that the court breached the bargain in appellant's case.   His bargain was that he could receive up to three years in state prison if he failed to cooperate with the probation department.   When he failed to cooperate he was sentenced to a term of 16 months.   Since the sentence was within the terms of the bargain, there is no merit to appellant's contention that he received a “punishment more severe than specified in the plea.”

Appellant's authorities do not dictate a contrary conclusion.   He cites two cases where the court imposed a penalty for nonappearance at sentencing as a condition to a negotiated plea.   The plea bargain in People v. Barrero (1985) 163 Cal.App.3d 1080, was that the defendant would receive the lower term for a felony offense.   In the course of accepting Barrero's plea, the court advised him that a stiffer sentence might result if he failed to appear for sentencing, stating “If you don't come back ․ my part of the deal is off, but you can't back out of your plea.”  (Id., at p. 1085.)   The bargain in People v. Morris (1979) 97 Cal.App.3d 358, was that the defendant would not be sentenced to state prison.   After accepting the plea, the court announced its intention to summarily impose a state prison sentence with execution stayed for the sole purpose of assuring Morris' appearance for formal sentencing.   Neither of these defendants was advised of the right to withdraw his plea if the court withdrew its approval of the bargained-for sentence.   In these circumstances, the court-imposed condition could not be enforced because a waiver of the right to withdraw the plea could not be considered to have been part of the bargain.  (See People v. Cruz (1988) 44 Cal.3d 1247, 1251-1252 (describing Barrero and Morris ].)

These cases are distinguishable.   The record here does not establish that the court sought to impose an added condition to the plea bargain on its own motion.   A more reasonable inference is that the court merely accepted terms to which the parties had agreed in the bench conference, namely, the possibility of a heavier sentence if appellant failed to cooperate with the probation department, in return for an agreement to release him on his own recognizance.   We are not obliged to accept appellant's speculation that “the district attorney may well have reviewed his file, saw something new, and corrected his earlier stance that O.R. release was objectionable.”  (See People v. Green (1979) 95 Cal.App.3d 991, 1001 [ambiguity in record to be construed in favor of judgment].) ⁴  Moreover, unlike Barrero and Morris, appellant was advised of the plea withdrawal right under section 1192.5.   His plea form includes the statement that “The Court reserves the right to withdraw its consent to any sentence limitation agreement;  and, in the event, I will be permitted to withdraw my plea(s) of guilty or nolo contendere and all charges will be reinstated.”   In these circumstances, we find that appellant's bargain included a waiver of his right to withdraw his plea if he failed to cooperate with the probation department and the court decided to impose a heavier sentence because of that failure.

Appellant argues that the waiver was invalid under People v. Cruz, supra, 44 Cal.3d 1247.  Cruz held that a plea may be withdrawn if the court refuses to adhere to a plea bargain because the defendant does not appear for sentencing as scheduled.   The court stated, however, “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. at p. 1254, fn. 5.)

We do not believe that Cruz can be read, as appellant suggests, to preclude a bargain based on failure to cooperate with the probation department rather than nonappearance at sentencing.   The foregoing passage from Cruz is not directly applicable because appellant did not receive a sentence “in excess of the bargained-for term,” but we find in any event that he “knowingly and intelligently” waived his plea withdrawal right.   Even rights of constitutional dimension may be waived pursuant to a written form, “provided the court is assured that a defendant has signed and understands the form.”   (In re Moss (1985) 175 Cal.App.3d 913, 925-926.)   The form in appellant's case includes his attorney's statement that appellant read the form and signed it after its contents were explained to him.   It sets forth the plea withdrawal right and includes the trial court's finding that appellant “made a knowing, intelligent and voluntary waiver of the above rights.”   Appellant asserts, however, that the waiver was invalid because it was not “express.”   We find that appellant expressly waived the right to withdraw his plea when he agreed in writing “if no co-operation, no minimum sentence guaranteed,” and acknowledged in open court that he understood this agreement.

Since appellant's sentence was within the terms of the plea bargain, and the bargain included a waiver of his right to withdraw the plea when faced with that sentence, the trial court was not obliged to let him withdraw his plea.

The court nonetheless had discretion to allow withdrawal of the plea upon a showing of “good cause.”  (Pen.Code, § 1018.)   Appellant contends that this discretion was abused because his motion was summarily denied without a hearing on the question of his cooperation with the probation department.   He notes that a defendant is required to present “clear and convincing evidence” of good cause for withdrawal of a plea (People v. Hunt (1985) 174 Cal.App.3d 95, 103;  People v. Harvey (1984) 151 Cal.App.3d 660, 667), and that many plea withdrawal cases have involved evidentiary hearings.   He reasons on the basis of these cases that a court is obligated to hold an evidentiary hearing on every plea withdrawal motion, but cites no holdings to that effect.   Appellant's principal authorities state only that a court is required to “consider ․ all factors necessary to effectuate a just result.”  (People v. Hunt, supra, at p. 103;  People v. Harvey, supra, at pp. 666-776.)

In this case, defense counsel told the court appellant was prepared to indicate that he had been ill and, contrary to the probation officer's report, that he had in fact contacted the probation department on certain dates.   The probation report, however, contained substantial evidence of appellant's willful failure to comply with the terms of his plea bargain.   In light of that evidence, we cannot say that no reasonable court could have dispensed with a hearing to allow appellant to amplify on his excuses.

III. DISPOSITION

The judgment of conviction is affirmed.

ANDERSON, P.J., and POCHÉ, J., concur.