Filed 10/5/21 P. v. Roe CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092117
Plaintiff and Respondent, (Super. Ct. Nos. 19FE001276,
19FE012289 )
v.
JOEL EDWARD ROE,
Defendant and Appellant.
Before admitting to a felony probation violation, defendant Joel Edward Roe
agreed to a Cruz1 waiver. In exchange for a 72-hour release from custody with
conditions, defendant offered to waive his presentence credits. Defendant breached one
of the agreement’s conditions and the court struck his presentence credits. On appeal,
defendant argues he agreed to waive only conduct credits, not actual credits. Defendant
also contends his trial counsel was ineffective for failing to make this argument at
sentencing. We affirm.
1 People v. Cruz (1988) 44 Cal.3d 1247.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2019, defendant pled no contest to three felony drug charges in one case and
one felony assault charge in another. Ultimately, the court suspended defendant’s
aggregate sentence of six years eight months and placed him on five years of felony
probation. In late 2019, defendant was arrested for violating probation when his urine
tested positive for methamphetamine.
On January 16, 2020, defendant offered to admit violating his probation in
exchange for a temporary release from custody pursuant to a Cruz waiver. The
prosecution objected, arguing no additional time could be leveraged to induce
defendant’s return because his aggregate sentence was “already at the max.” Defendant
himself twice offered to give up “additional time.” The parties conversed:
“[Defense counsel]: Hold on. Hold on. [¶] We can do this. He has 230 days of
credit applied.
“[Prosecutor]: Actual?
“[Defendant]: Yes.
“[Defense counsel]: Yes.
“[Defendant]: And I’ll give all of that up.
“[Prosecutor]: Okay. If he agrees to the Cruz waiver, he waives all of his credits.
“[Defendant]: Absolutely. Sure.”
The conversation shifted to topics involving defendant’s girlfriend and then went
off the record.2 After the sidebar, defendant admitted to violating his probation. This
exchange followed:
2 Given this switch in discussion before the sidebar, we do not find support in
defendant’s assertion that his Cruz waiver was “further discussed . . . off the record” prior
to the court’s recitation of the agreement.
2
“[Court]: And so your request then is to enter into a so-called Cruz waiver to be
allowed then to be released from custody on [January 20, 2020] and then to then return to
reentry court on [January 23, 2020]; is that correct?
“[Defendant]: Yes, Your Honor.
“[Court]: And so we’re all clear then, if you were to commit any new violation of
law or were to test positive for drugs, then you would -- or fail to appear, of course -- you
would then when sentenced would forfeit the good-time work-time credits that you have
accrued. Is that your understanding?
“[Defendant]: Yes.
“[Court]: And that’s what you want to do?
“[Defendant]: Yes, sir.
“[Court]: All right. [¶] I’ll go ahead then and order [defendant] to be released on
[January 20, 2020].”
Defendant returned on January 23, 2020, but his urine tested presumptively
positive for methamphetamine. Defendant contested, “I was with my girlfriend the whole
time. I would never risk that.”
At the sentencing hearing, by which point defendant’s drug test results were
confirmed, defendant contested, “I’m really surprised I came back dirty. . . . [I] would
never jeopardize 285 days over that period of time. . . . [¶] [I] would never even have
turned myself in if I was using drugs.” The court found defendant violated his Cruz
waiver and struck all presentence credits -- both actual and conduct -- accrued before
January 23, 2020. Neither party objected. The court revoked defendant’s probation and
executed the aggregate sentence of six years eight months. Defendant appealed.
On February 5, 2021, defendant’s appellate counsel moved to correct the record.
In the motion, appellate counsel argued defendant agreed to waive only good conduct
credits. The motion requested the court to award defendant the actual credits accrued
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before January 23, 2020.3 The judge -- who had also presided over defendant’s no
contest pleas, Cruz waiver hearing, and sentencing hearing -- denied the motion. The
judge provided in a written order, “[T]he record reflects an understanding and agreement
that Defendant waived all of his credits earned up to January 23rd. . . . Although the
Court emphasized ‘good-time work-time credits’ at one point in the proceeding, no ‘new
bargain’ was struck. . . . Overall, the transcripts from the January 16[th] and March
19[th] proceedings make clear that Defendant proposed and agreed to forfeiting the entire
amount of credits earned up to January 23rd.”
DISCUSSION
Defendant contends the court violated the terms of his Cruz waiver by striking all
presentence credits, both actual and conduct. He argues, per the language of the court,
defendant offered to waive only his “good-time work-time” credits. We disagree.
When a defendant who has pled no contest is temporarily released from custody
pursuant to a Cruz waiver agreement, the court may impose a more severe sentence if the
defendant breaches the agreement’s condition, typically by failing to reappear at
sentencing. (People v. Casillas (1997) 60 Cal.App.4th 445, 452 [“when the parties
themselves agree as part of the plea bargain to a specific sanction for nonappearance, the
court need not permit the defendant to withdraw his or her plea but may invoke the
bargained-for sanction”]; People v. Masloski (2001) 25 Cal.4th 1212, 1223 [upholding
“the ‘Cruz waiver’ as one of the terms of the plea agreement [where] defendant clearly
understood that part of the agreement was that her sentence could be increased in the
event she failed to appear for sentencing”].) Courts interpret Cruz waivers as they do
3 Defendant’s appellate counsel brought the motion pursuant to People v. Fares
(1993) 16 Cal.App.4th 954. Both the court and the People construed the motion as
pursuant to Penal Code section 1237.1, which partially codified Fares. (People v. Acosta
(1996) 48 Cal.App.4th 411, 419.)
4
plea agreements because a Cruz waiver is part of the plea agreement. (Masloski, at
pp. 1222-1223; see People v. Vargas (2007) 148 Cal.App.4th 644, 647 [applying contract
interpretation principles to a Cruz waiver].) Like a plea agreement, a Cruz waiver is
essentially a contract. (See Masloski, at p. 1223; People v. Cunningham (1996) 49
Cal.App.4th 1044, 1047.)
Here, the parties agree defendant’s Cruz waiver must be interpreted pursuant to
contract interpretation principles. (See People v. Shelton (2006) 37 Cal.4th 759, 767.)
Clear and explicit contractual language governs. (Civ. Code, § 1638.) If the language is
ambiguous, courts interpret the contract as to effectuate the mutual intention of the
parties. (Civ. Code, § 1636; Shelton, at p. 767.) Courts determine parties’ mutual
intention by objective manifestations of the parties’ intent, including extrinsic evidence
such as: the surrounding circumstances of the negotiation; the object, nature, and subject
matter of the contract; and the subsequent conduct of the parties. (Shelton, at p. 767.)
Where the interpretation does not turn on the credibility of extrinsic evidence, courts
review the contract de novo.4 (People v. Paredes (2008) 160 Cal.App.4th 496, 507.)
Defendant argues the court’s recitation of the agreement constituted the exclusive
terms of the Cruz waiver. He argues the court’s oral statement is the best evidence of the
contract because the court recited, had the authority to enforce, and was a party to the
4 Defendant argues his counsel was ineffective for failing to object at sentencing
when the court struck defendant’s actual presentence credits. The People, however, do
not argue forfeiture. The People contend that defendant made the claim cognizable by
filing a postjudgment motion to correct his sentence. While defendant did have a
statutory obligation to file a motion per Penal Code section 1237.1 prior to raising any
appeal based solely on a sentencing challenge, he did not preserve his claim for review
with a prompt objection. (People v. Scott (1994) 9 Cal.4th 331, 351.) In any event,
because the People do not analyze defendant’s claim under an ineffective assistance of
counsel lens, neither do we.
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agreement. Defendant’s argument misconstrues the court’s role in plea bargaining and
therefore misconstrues its role in negotiating a Cruz waiver.
“It is well settled that a plea bargain is a tripartite agreement which requires the
consent of the defendant, the People, and the court.” (People v. Yu (1983) 143
Cal.App.3d 358, 371.) “Because the charging function is entrusted to the executive, ‘the
court has no authority to substitute itself as the representative of the People in the
negotiation process and under the guise of “plea bargaining” to “agree” to a disposition of
the case over prosecutorial objection.’ ” (People v. Clancey (2013) 56 Cal.4th 562, 570.)
“ ‘Once the trial court has accepted the terms of the negotiated plea, “[i]t lacks
jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a
defendant unless, of course, the parties agree.” ’ ” (People v. Segura (2008) 44 Cal.4th
921, 931.)
Our Supreme Court has interpreted Cruz waivers to be a part of plea agreements.
(People v. Masloski, supra, 25 Cal.4th at pp. 1222-1223 [applying the principle that
“ ‘when the parties themselves agree as part of the plea bargain to a specific sanction for
nonappearance, the court need not permit the defendant to withdraw his or her plea but
may invoke the bargained-for sanction’ ”].) In Masloski, the defendant argued her Cruz
waiver was judicially imposed and therefore distinct from her plea agreement. Masloski,
at p. 1222.) The trial court in Masloski repeatedly characterized the Cruz waiver as a
“contract” and asked the defendant, “Do we have a contract?” (Masloski, at p. 1215.)
Despite the trial court’s oral statements, our Supreme Court held that the Cruz waiver’s
“provision for an increased sentence upon defendant’s nonappearance was part of the
plea agreement and not ‘a judicially imposed afterthought.’ ” (Masloski, at p. 1223.)
Thus, like a plea agreement, the Cruz waiver was valid and enforceable.
Here, defendant does not seek withdrawal from an invalid agreement. Instead, he
argues we should enforce the terms of the judicially imposed afterthought. But the court
could only approve of the prosecutor’s and defendant’s agreement, not -- as defendant
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suggests -- unilaterally impose its own agreement.5 Thus, we are not confined to the
court’s oral statement when determining the terms of defendant’s Cruz waiver.
Terms of a plea agreement must be recorded, lest the negotiation fall prey to the
“greatest danger” of “secretiveness.” (People v. West (1970) 3 Cal.3d 595, 609-610.) In
West, our Supreme Court suggested four methods for recording negotiation terms:
“(1) the bargain could be stated orally and recorded by the court reporter, whose notes
then must be preserved or transcribed; (2) the bargain could be set forth by the clerk in
the minutes of the court; (3) the parties could file a written stipulation stating the terms of
the bargain; (4) finally, counsel or the court itself may find it useful to prepare and utilize
forms for the recordation of plea bargains.” (Id. at p. 610.)
Here, the court used the first two of these methods to record the agreement. First,
the parties orally stated the agreement on the record, indicating that defendant agreed to
waive “all” of his credits; then, the court orally stated the agreement and used the term
“good-time work-time credits.” Second, the clerk set forth the agreement in the minute
order and noted actual credits: “[Defendant] admits probation violation[.] [¶]
[Defendant] enters Cruz waiver -- waives all CTS [credit time served] if FTA [failure to
appear] or dirty test[.]” (Italics added.) Because portions of the oral and written
statements conflict, the terms of defendant’s agreement are ambiguous. (People v.
Shelton, supra, 37 Cal.4th at p. 767.) To resolve this ambiguity, we can determine the
mutual intention of the parties by looking at objective manifestations of intent, such as
the surrounding circumstances and subsequent conduct. (Ibid.)
Looking to the record, it is clear the parties intended for defendant to waive his
actual credits, not solely conduct credits. The prosecution clarified this term by asking,
“Actual?” Both defendant and his counsel replied, “Yes.” The prosecution again
5 That the court “had authority to fulfill the state’s side of the bargain” is irrelevant
to the agreement’s interpretation.
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clarified, “Okay. If he agrees to the Cruz waiver, he waives all of his credits.”
Defendant himself again answered affirmatively, “Absolutely. Sure.” When seeking the
Cruz waiver, defendant himself offered, “I would be willing to take any additional time.”
(Italics added.) At sentencing, defendant acknowledged the Cruz waiver but contended,
“I know you probably don’t believe me, but I would never jeopardize 285 days over that
period of time.” While it is unclear whether defendant used actual or conduct credits to
calculate the 285 days he referenced, the weight of the record indicates his contention
concerned the drug test results -- not the amount of credits the court struck from his
sentence. Indeed, only on appeal does defendant distinguish between actual and conduct
credits.
In any event, the judge -- who presided over the Cruz waiver and sentencing
hearings -- subsequently clarified his use of the term “good-time work-time credits.”
When denying defendant’s motion to correct the record, the judge reviewed the
transcripts from the Cruz waiver and sentencing hearings and concluded defendant
agreed to waive all presentence credits in the event he failed to comply with the
conditions of his temporary release. In a written order, the judge provided, “[a]lthough
the Court emphasized ‘good-time work-time credits’ at one point in a proceeding, no
‘new bargain’ was struck.”
Based on all the evidence surrounding the making of defendant’s plea agreement
and the subsequent conduct of the parties, we conclude the mutual intention of the parties
was for defendant to waive all his presentence credits, both actual and conduct.
Accordingly, defendant’s argument to the contrary lacks merit.
Similarly, we reject defendant’s contention we should presume the judge
accurately stated the agreement on the record at the Cruz waiver hearing. (Evid. Code,
§664.) “As a general rule, when there is a discrepancy between the minute order and the
oral pronouncement of judgment, the oral pronouncement controls. [Citation.] [Our]
California Supreme Court has also stated that ‘a record that is in conflict will be
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harmonized if possible,’ but if the reporter’s transcript and the clerk’s transcript . . .
cannot be reconciled, we do not automatically defer to the reporter’s transcript, but rather
adopt the transcript that should be given greater credence under the circumstances of the
particular case.” (People v. Contreras (2015) 237 Cal.App.4th 868, 880, quoting People
v. Harrison (2005) 35 Cal.4th 208, 226.) Under this principle, the record demonstrates
the judge did not accurately state the terms of the agreement on the record and we do not
defer to his statements.
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Mauro, J.
/s/
Hoch, J.
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