California Cases May 07, 2020: People v. Avalos

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 2019008823)
(Ventura County)

Armando Avalos appeals a sentence and order revoking probation following his guilty plea to carrying a dirk or dagger (Pen. Code, § 21310), a felony. The trial court revoked his probation because Avalos violated his " Cruz waiver" ( People v . Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5) agreement by not appearing for sentencing. We conclude, among other things, that the court did not abuse its discretion by revoking probation and

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imposing an 18-month jail sentence followed by 18 months of mandatory supervision. We affirm.

Police officer Nathan Langelier knew Avalos had been previously arrested for trespassing at an unoccupied house located on South G Street in Oxnard, California. The house had been purchased by Ms. Barton who told police Avalos had no permission to be on her property.

On March 5, 2019, Langelier saw Avalos again at that residence holding a long metal rod in his hand. He believed Avalos was preparing to use the rod to break the glass on the door of the house and enter the residence. Langelier approached him. Because of an "officer safety concern," he asked Avalos to drop the rod. Avalos was "initially uncooperative," but he eventually dropped it.

Langelier noticed Avalos had "several bulges in his pants." He told Avalos that he was going to pat him down to search for weapons. Avalos said he had two knives in his back pocket. Langelier searched him and "recovered two straight blade knives." One was a "large kitchen knife" and the other had a black handle. Both knives had "sharp" tips. In a search incident to Avalos's arrest, Langelier recovered a methamphetamine pipe.

Avalos pleaded guilty to carrying a dirk or dagger (§ 21310). As part of a negotiated plea agreement, the parties agreed that he would be placed on probation with a maximum possible jail term of 180 days. After accepting Avalos's plea, the court continued the case to June 12 to allow the probation department to finish its sentencing report.

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At the June 12 hearing, the court advised Avalos that it would release him from custody provided he would agree to a " Cruz waiver." The court advised him that this meant that if he did not appear for his sentencing hearing on July 1, "then the Court can sentence you to any legally-authorized sentence. That means I don't have to follow the recommended Court offer." Avalos agreed to the Cruz waiver.

Avalos did not appear for sentencing on July 1 and a bench warrant issued.

At a July 15 hearing, Avalos claimed he was confused about the July 1 appearance date. The court did not find his explanation to be credible. It found he violated his Cruz waiver agreement, it revoked his probation, and sentenced him to 18 months in jail followed by 18 months on mandatory supervision.

Avalos contends the trial court abused "its discretion in denying [Avalos] probation and sentencing him to eighteen months in custody" on the ground that he violated his Cruz waiver agreement.

The People contend the trial court "acted within its discretion in revoking probation after [Avalos] failed to appear for his sentencing hearing" after he made a Cruz waiver and promise to appear. We agree.

"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; see also People v . Cruz , supra , 44 Cal.3d at p. 1254, fn. 5.) Once a defendant agrees to a Cruz

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waiver, he or she 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.

Avalos pleaded guilty to carrying a dirk or dagger (§ 21310) with the understanding that he would be placed on probation with a maximum possible jail term of 180 days. At the June 12 hearing, the trial court advised Avalos of his sentencing date. It said, "I'm going to go ahead and release you with your promise to appear with the understanding that you're going to give a Cruz Waiver which . . . I know the Court had already offered you. If you [do] not appear for your sentencing, then the Court can sentence you to any legally-authorized sentence. That means I don't have to follow the recommended Court offer." The court asked Avalos, "Are you willing to give a Cruz waiver until that sentencing?" Avalos answered in the affirmative after consulting with his counsel.

Avalos contends the court should not have revoked probation and sentenced him to 18 months in custody for not appearing for sentencing because he was "confused" about the sentencing date. He claims he did not willfully fail to appear.

But at the June 12 hearing, the court told Avalos, "[W]e're going to continue your sentencing until July 1st at 9:00 a.m. in this courtroom." The trial court did not find Avalos's brief explanation for his non-appearance to be credible. It noted that it explained the Cruz waiver to Avalos because it "didn't want to be in the situation where if he didn't show, then he's going to say, oh, I forgot or I misunderstood." The court said, "I made sure it was very clear . . . ." It added, "I'm actually offended that the defendant, after I took that much time to explain the importance,

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would be under the impression that I'd be willing to accept, oh, I forgot." The trial court was in the best position to determine Avalos's credibility. It saw his demeanor. The trial court's express or implied findings are reviewed for substantial evidence and "'[d]eferential review is particularly necessary when, as here, the factual determination depends in part on judging a witness's credibility' . . . [Citation]." ( People v . Rabanales (2008) 168 Cal.App.4th 494, 509.)

Avalos did not testify to support his claim of confusion about the sentencing date. ( People v . Evans (2008) 44 Cal.4th 590, 598.) This prevented the People from cross-examining him about this claim. ( Ibid .) His counsel only made an oral argument that "[Avalos] forgot. He got the dates confused. He thought it was vacated." Avalos made only the following unsworn statement in court: "I had like six different dates." But the trial court could reasonably find there was only one date for the sentencing hearing—July 1.

Avalos claims the trial court should have found that he was confused. But such a finding requires evidence. Avalos has not shown why he did not present evidence or why his and his counsel's brief conclusory explanations were not accompanied by supporting factual details. These omissions undermined his claims. ( People v . Ochoa (1985) 165 Cal.App.3d 885, 888-889; People v . Beal (1953) 116 Cal.App.2d 475, 479; Evid. Code, § 412 ["If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust"].)

Avalos had consulted with his counsel before agreeing to the Cruz waiver. His counsel told the court she had explained

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the waiver to him. Avalos heard the court's warning. He signed a written agreement with his promise to appear. At the June 12 hearing, he agreed to the Cruz waiver and said he understood it. There was no ambiguity in the Cruz waiver language or the requirement to appear on July 1. The court could reasonably infer he was not confused. The People note that Avalos, in addition to failing to appear for the July 1 sentencing, also failed to appear at a July 8 "arraignment warrant" hearing. Avalos has not shown why the trial court could not reasonably find that he willfully failed to appear for sentencing.

Avalos notes the court said it had provided him with "a very detailed explanation" of the Cruz waiver. He claims that information was not detailed, therefore the court must have "mistook [him] for a different defendant with whom it had had a more extensive discussion of Cruz and its consequences." But this is speculation without citation to the record. Unless the record shows otherwise, we presume the court properly performed its duties. ( People v . Weddington (2016) 246 Cal.App.4th 468, 492.) Moreover, regardless of how Avalos interprets the term "detailed," the record reflects that he received comprehensive information about the Cruz waiver from: 1) the trial court's oral advisement; 2) Avalos's conference with his counsel about the waiver; and 3) his signing of an agreement in court containing his "promise to appear" and his acknowledgement that he was "informed of the consequences and penalties applicable to violation of the conditions of release."

Avalos contends the trial court did not know the scope of its discretion. After the court revoked probation it said, "I couldn't

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even get to probation unless I made an IOJ [interest of judgment] finding. I can't in good conscience make an IOJ finding . . . ." Avalos claims his "crime of possessing a dirk or dagger is not one for which probation is barred without a finding of an interest of justice (Pen. Code, § 1203)."

We start with the presumptions that trial courts are "presumed to know" the law ( People v . Braxton (2004) 34 Cal.4th 798, 814), the scope of their discretion ( People v . Hooton (1959) 53 Cal.2d 85, 88), and that they have "properly exercised" their "discretion in sentencing." ( People v . Weddington , supra , 246 Cal.App.4th at p. 492.) A judge's comments may reveal a misunderstanding of the law which is reflected in the judgment requiring a reversal. More often a judge's comments are fleeting and do not affect the judgment. ( People v . Seumanu (2015) 61 Cal.4th 1293, 1321.) A judge's unnecessary comments do not necessarily "impeach" an otherwise valid order. ( Burbank-Glendale-Pasadena Airport Authority v . Hensler (1991) 233 Cal.App.3d 577, 591.)

Avalos suggests the court's comments indicate that it incorrectly believed it had no discretion to reinstate him on probation following its finding that he violated his Cruz waiver agreement.

But the record shows the court knew it had the discretion to continue Avalos's probation status should he violate his Cruz waiver agreement. In advising him about the Cruz waiver, the court said, "If you [do] not appear for your sentencing, then the Court can sentence you to any legally-authorized sentence. That means I don't have to follow the recommended Court offer . " (Italics added.)

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The People also note that the court's reference to the interest of judgment (IOJ) finding was relevant. In considering probation, an interest of justice finding is a standard requirement where a defendant "has been previously convicted twice in this state of a felony." (§ 1203, subd. (e)(4).) Avalos had prior felony convictions. The court said, "I've looked at his criminal history."

But even if the court had erred by its reference to IOJ findings, Avalos has not shown how the result in sentencing would change. ( People v . Price (1991) 1 Cal.4th 324, 492.) The court said it had "read and considered the probation report."

The probation reports shows that Avalos: 1) has "numerous" prior convictions; 2) he has served "prior prison terms"; 3) his "performance on probation and parole were unsatisfactory"; 4) he was on "Conditional Revocable Release when he committed the present crime"; 5) he "has engaged in violent conduct which indicates a serious danger to society"; 6) his "ability to comply with and successfully complete probation appears significantly compromised due [to] drug abuse"; 7) he was "carrying a deadly weapon in the present matter"; and 8) there "do not appear to be any factors in mitigation." The probation department recommended that he be "sentenced to [f]elony [j]ail, to be followed by a period of [m]andatory [s]upervision." It said, "[H]e does not appear to be a suitable candidate for a grant of probation."

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The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J.

TANGEMAN, J.

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Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.