Metropolitan News-Enterprise


Friday, July 6, 2001


Page 1


State Supreme Court Rules:

Plea Bargain May Increase Term for Not Showing at Sentencing


By ROBERT GREENE, Staff Writer


Plea bargains may provide for boosted sentences if the defendant fails to appear for sentencing, the state Supreme Court ruled yesterday.

Although judges may not throw out the bargained-for sentence just because the defendant fails to show up, Chief Justice Ronald George wrote, that does not mean that an increased sentence can’t be made part of the bargain.

The 6-0 ruling upholds a distinction developed by the high court and the state’s appeals courts between two lines of cases dealing with the plea bargain statute, Penal Code Sec. 1192.5.

Under the line crystallized in 1988’s People v. Cruz, defendants were held not to have lost their bargained-for sentence under the statute simply because they didn’t show up on sentencing day. Defendants might face the additional charge of failure to appear, the court ruled in Cruz, but they could not lose the provisions of the bargain that they already reached with prosecutors and had confirmed by the court.

But the Courts of Appeal also have ruled that failing to appear could result in the court scrapping the agreed-upon sentence and imposing a higher one if the penalty was incorporated into the bargain in the first place.

In other words, the defendant may enter into a bargain that includes waiving rights under Sec. 1192.5 in the event he or she does not come to court as ordered for sentencing. That same plea bargain may provide for a higher sentence, or for termination of the bargain itself and imposition of sentencing as the judge sees fit.

That’s what happened in the Los Angeles Superior Court case of Linda Jean Masloski, who was charged with a third-strike offense of cocaine possession.

Priors Struck

Judge Ronald Coen struck two of the priors, then entertained the plea agreement reached with prosecutors for 16 months in prison, which would have been doubled under the Three Strikes law.

Coen then explained a “Cruz waiver” to Masloski, calling it her permission that she and the court “enter into a contract.”

“What this means is that you show up on time and I will follow the plea bargain,” Coen told Masloski. “If you are late, or heaven forbid, you don’t show up at all, then I want your permission to treat this as an open plea which means I am not bound by the low term doubled, that I can give you as much as six years in state prison if the facts warrant it.”

Masloski said she understood and agreed to the “contract.” Sentencing was set for July 8, 1999, and she appeared, but she requested and was granted a continuance to July 19. She failed to appear on July 19.

Instead, she came to court on July 20, and instead of the 16 months agreed on originally Coen sentenced her to two years, which was then doubled under the Three Strikes law to four years.

Masloski alleged she had not been fully informed of her rights under Sec. 1192.5 and had not expressly waived them, and moved for resentencing. Coen denied the motion.

This district’s Court of Appeal reversed, but the Supreme Court reinstated the sentence.

George rejected the assertion that Coen’s “contract” with the defendant was separate, and not part of the plea bargain. He said the judge carefully explained the term of the agreement and said that it included a Cruz waiver-and explained what such a waiver means.

“Although the court used the term ‘contract’ in referring to this part of the agreement, we do not accept defendant’s contention that the use of this terminology signified that the ‘Cruz waiver’ was not part of plea agreement,” George said. “The court apparently used this term, which is familiar to laypersons, to impress upon defendant the importance of this aspect of the agreement and the circumstance that her nonappearance would have serious consequences.”

Plea Withdrawal

The chief justice said Masloski was correct in noting that the judge failed to advise her under Sec. 1192.5 of her right to withdraw her guilty plea in the event the court later disapproved of the plea bargain. But that didn’t matter, he said—because Coen did not disapprove of the plea bargain. He followed it.

“[W]hen defendant failed to appear on the date set for sentencing, she was sentenced to a term of four years in prison, in accordance with the terms of the plea agreement,” George said. “The provisions of section 1192.5 that permit a defendant to withdraw his or her plea if the court withdraws its approval of the plea agreement were not implicated, because the court adhered to the terms of the plea agreement by sentencing defendant to a prison term that did not exceed (and was in fact less than) the maximum sentence authorized by the plea agreement in the event that defendant failed to appear on the date set for sentencing.”

The case is People v. Masloski, 01 S.O.S. 3227.


Copyright 2001, Metropolitan News Company