P. v. Cruz

Filed 8/25/06 P. v. Cruz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CRISTIAN CRUZ,
Defendant and Appellant.
H029302
(Santa Clara County
Super. Ct. No. CC331753)
Appellant Cristian Cruz entered a no contest plea to charges of attempted murder
and assault with a deadly weapon, and he admitted gang enhancement allegations. On
appeal, he challenges his sentence on two grounds. First, appellant contends that the trial
court’s imposition of the upper term on the attempted murder charge violates his federal
constitutional rights. Second, he argues that the court’s assessment of a $6,400 restitution
fund fine violates his plea bargain. For reasons explained below, we reject both of
appellant’s contentions and we affirm the judgment.
BACKGROUND
Because the sole issue in this appeal concerns sentencing, a brief recitation of the
facts will suffice. As indicated in the probation report, the charges against appellant
arose from two separate incidents, which occurred several days apart in October 2003.
On October 24, 2003, appellant and a co-defendant (Garcia) approached the 17-
year-old victim, Jovanny G. Upon discovering that the victim was wearing a blue belt,

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Garcia swung a metal dumbbell at his head. The victim ducked, avoiding the blow, then
ran toward a nearby high school campus. Appellant gave chase, striking the victim on his
left wrist with a metal bat.
On October 27, 2003, appellant, together with Garcia and another co-defendant
(Baez), attacked another victim, 16-year-old Jose R., who was dressed in blue. Garcia
and Baez pushed the victim to the ground and then struck him with plastic milk crates.
Appellant kicked and hit the victim with his feet and hands. The victim suffered a skull
fracture and lacerations; he was transported to San Jose Hospital, where he underwent
emergency surgery.
Charges
On October 30, 2003, a felony complaint was filed in Santa Clara County,
charging appellant with one count of attempted premeditated murder for his part in the
October 27th attack on Jose R. (Pen. Code, §§ 664, subd. (a)/187; further unspecified
statutory references are to the Penal Code.) As sentence enhancements, the complaint
specially alleged infliction of great bodily injury, perpetration of the crime for the benefit
of a gang, and personal use of a weapon. (§§ 12022.7, subd. (a), 1203, subd. (e)(3) [great
bodily injury]; 186.22, subd. (b)(1) [gang enhancement]; 12022, subd. (b)(1) [personal
use of a weapon].)
On December 1, 2003, a first amended felony complaint was filed. The amended
complaint added counts 2 and 3, charging appellant with assault for the October 24th
attack on Jovanny G. (§ 245, subd. (a)(i).) Ten days later, a second amended felony
complaint was filed, which added gang enhancement allegations to counts 2 and 3.
(§186.22, subd. (b)(1)(B).) Third and fourth amended felony complaints were filed in
2004, which added criminal charges and sentence enhancement allegations against
appellant’s co-defendants, Garcia and Baez.
A felony information was filed in November 2004.

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Change of Plea
On April 29, 2005, appellant entered a plea of no contest to counts 1 and 2, and he
admitted the gang enhancement allegations as to both counts. (See § 186.22, subd.
(b)(1)(B).) In exchange, the prosecution agreed to amend count 1 by removing the
allegation of premeditation, by asserting a five-year rather than a 10-year gang
enhancement, and by striking the other special allegations. The prosecution also agreed
to dismiss count 3 altogether.
Before the court accepted the negotiated plea, it advised defendant about his
possible prison term, stating: “Now there is no agreement as to the amount of time you
will receive in state prison. The Judge will decide that at sentencing. It could be as little
possibly as five years or as much as 16 years eight months. Do you understand that?”
The court also sought and obtained appellant’s acknowledgement that he would be
required to “pay a restitution fund fine anywhere between [$]200 and $10,000” as well as
other costs. But the court failed to advise appellant of the circumstances under which he
would be permitted to withdraw his plea. (See § 1192.5.) 1
The matter was then set for sentencing.
Sentencing
In July 2005, after conducting an extensive evidentiary hearing, the court imposed
sentence on appellant. On count 1, the charge of attempted murder, the court sentenced
appellant to the upper term of nine years in prison, with a consecutive five-year sentence
on the gang enhancement. On count 2, the assault charge, the court imposed a
consecutive sentence totaling two years, eight months. The court then assessed a
1 Section 1192.5 provides in pertinent part: “If the court approves of the plea, it
shall inform the defendant prior to the making of the plea that (1) its approval is not
binding, (2) it may, at the time set for the hearing on the application for probation or
pronouncement of judgment, withdraw its approval in the light of further consideration of
the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her
plea if he or she desires to do so.” (§ 1192.5.)

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restitution fund fine of $6,400. (§ 1202.4.) It also imposed an equivalent parole
revocation fine, which it stayed. (§ 1202.45.)
Defendant’s Appeal
In August 2005, appellant brought this appeal.
CONTENTIONS
Appellant makes two arguments on appeal. First, he asserts that the court’s
imposition of the upper term for count 1 violated his federal constitutional trial rights,
both as to burden of proof and as to trial by jury. Second, appellant contends that
imposition of the $6,400 restitution fund fine violated his plea bargain. The People
defend the sentence against both arguments.
DISCUSSION
We consider each of appellant’s contentions in turn.
I. Federal Constitutional Claim
Appellant first challenges the trial court’s imposition of the upper term of nine
years for attempted murder. He argues that his federal constitutional rights were violated
because the factual determinations supporting the upper term were made by the trial
judge using the preponderance of the evidence standard, rather than by a jury employing
the beyond a reasonable doubt standard. In making that argument, appellant relies on
Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000)
530 U.S. 466 (Apprendi).
The People counter appellant’s argument on the merits. Furthermore, they urge,
the argument is forfeited in any event for failure to raise it in the trial court. (See, e.g.,
People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
As appellant acknowledges, the California Supreme Court considered Blakely’s
effect on California’s determinate sentencing law, in the recent case of People v. Black

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(2005) 35 Cal.4th 1238. In Black, our state’s high court held that “the judicial factfinding
that occurs when a judge exercises discretion to impose an upper term sentence or
consecutive terms under California law does not implicate a defendant’s Sixth
Amendment right to a jury trial.” (Id. at p. 1244.) Later in the Black opinion, the court
reiterated that “a trial court’s imposition of an upper term sentence does not violate a
defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and
Booker [United States v. Booker (2005) 543 U.S. 220].” (Id. at p. 1254.)
Appellant’s stated purpose in presenting this argument is to preserve his claim for
federal court review. As he correctly recognizes, this court is bound to follow the
California Supreme Court’s holding in Black. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) Accordingly, we reject appellant’s constitutional claim of
Blakely error on the merits. Having done so, we need not address the People’s forfeiture
argument.
II. Plea Bargain Claim
Appellant next challenges the trial court’s imposition of a restitution fund fine in
the amount of $6,400. He asks us to reduce the fine to $200, the statutory minimum,
under the authority of People v. Walker (1991) 54 Cal.3d 1013 (Walker).
Appellant acknowledges that this court has repeatedly rejected similar arguments.
(See People v. Dickerson (2004) 122 Cal.App.4th 1374; People v. Knox (2004) 123
Cal.App.4th 1453 [majority opinion]; People v. Sorenson (2005) 125 Cal.App.4th 612.)
Appellant maintains that Dickerson, Knox, and Sorenson were wrongly decided and that
they conflict with the holding of Walker. He urges us to adopt the views expressed by
Justice Mihara in his dissent in Knox.
As both parties recognize, this issue is presently pending in the California
Supreme Court, in People v. Crandell (review granted August 24, 2005, S134883).
At the threshold, we observe, appellant’s claim is cognizable on appeal.

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As noted above, the trial court failed to advise appellant of the circumstances
under which he would be permitted to withdraw his plea, as required by section 1192.5.
“Absent a section 1192.5 admonition, we cannot assume the defendant knew he had a
right to withdraw his plea.” (Walker, supra, 54 Cal.3d at p. 1026.) For that reason, when
the statutory admonition is not given, the defendant’s plea bargain claim is preserved for
appellate review. (See id. at pp. 1024-1025.)
Reaching the merits of appellant’s claim, we reject it.
We extensively reviewed the principles that govern plea bargains and restitution
fines in Dickerson, Knox, and Sorenson. We need not repeat that discussion here. We
simply reiterate this key conclusion: in determining whether a restitution fine is
encompassed by the plea bargain, “the critical consideration is whether the challenged
fine was within the ‘defendant’s contemplation and knowledge’ when he entered his
plea.” (People v. Knox, supra, 123 Cal.App.4th at p. 1460, quoting People v. Panizzon
(1996) 13 Cal.4th 68, 86.)
As we explained in Knox, plea agreements have “contractual qualities.” (People v.
Knox, supra, 123 Cal.App.4th at p. 1459; see also, e.g., People v. Shelton (2006) 37
Cal.4th 759, 767 [“plea agreement is a form of contract”].) Plea agreements also have “a
constitutional dimension.” (People v. Knox, at p. 1459.) “A criminal defendant’s
constitutional due process right is implicated by the failure to implement a plea bargain
according to its terms.” (Ibid.) The question presented in this case concerns the
contractual aspect of plea agreements: at issue here “is whether specific terms or
consequences became part of the plea bargain.” (Ibid.)
In this case, we conclude, the restitution fund fine did become part of appellant’s
plea agreement. Various aspects of the agreement were reflected in the colloquy that
preceded his plea. As relevant here, the restitution fund fine was among them. Appellant
entered his plea only after acknowledging that he was subject to a statutory restitution
fund fine of up to $10,000. As in Knox, “we have analyzed defendant’s understanding

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that his plea would result in a restitution fine, as disclosed by the pre-plea timing of the
advisement and by defendant’s acknowledgement that the fine would be imposed.”
(People v. Knox, supra, 123 Cal.App.4th at p. 1461.)
Nor are we persuaded to a different conclusion by the court’s later determination
of the amount of the fine. As stated in Knox: “The fact that the precise amount of the
fine was not specified prior to the entry of defendant’s plea does not change the analysis.
To the contrary, it represents defendant’s implicit recognition that the amount of the fine
will be left to the sentencing court’s discretion.” (People v. Knox, supra, 123
Cal.App.4th at p. 1461, fn. omitted. See People v. Dickerson, supra, 122 Cal.App.4th at
p. 1385.)
As fully explained in this court’s recent cases, our conclusion does no violence to
Walker. (See People v. Sorenson, supra, 125 Cal.App.4th at pp. 618-619; People v.
Knox, supra, 123 Cal.App.4th at pp. 1461-1462; People v. Dickerson, supra, 122
Cal.App.4th at pp. 1384-1385.) We therefore find no merit in appellant’s contentions to
the contrary.
SUMMARY OF CONCLUSIONS
We reject appellant’s federal constitutional claim based on the California Supreme
Court’s recent decision in Black. We reject his state law challenge to the restitution fund
fine based on three recent decisions from this court, Dickerson, Knox, and Sorenson.

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DISPOSITION
The judgment is affirmed.
_____________________________________________
McAdams, J.
I CONCUR:
________________________________
Bamattre-Manoukian, Acting P.J.

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MIHARA, J., concurring in the judgment.
I do not agree with my colleagues’ analysis of the restitution fund
fine issue, but I do agree that defendant has failed to establish that there was a
violation of the plea agreement in this case.
“When a guilty [or no contest] plea is entered in exchange for
specified benefits such as the dismissal of other counts or an agreed maximum
punishment, both parties, including the state, must abide by the terms of the
agreement. The punishment may not significantly exceed that which the parties
agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024, emphasis added.)
“[O]nly a punishment significantly greater than that bargained for violates the
plea bargain.” (Walker at p. 1027, emphasis added.)
The plea agreement in this case was simple. Defendant agreed to
plead to the attempted murder and aggravated assault counts and admit the gang
enhancements, and the prosecution agreed to dismiss the premeditation allegation,
a second aggravated assault count and the remaining enhancement allegations.
There was no agreement as to punishment.
As the parties did not bargain for or agree to any particular
punishment, the trial court’s imposition of $6,400 restitution fund fines did not
exceed the punishment specified in the plea agreement and therefore did not
violate the plea agreement. For this reason, I concur in the judgment.
___________________________________
Mihara, J.

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