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Name: People v. Puente
Case #: E043466
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 08/08/2008

Where the plea bargain includes appellant’s waiver of due process right to notice and proper sentencing procedures, an appellate challenge to the manner in which the sentence is imposed requires a certificate of probable cause. Appellant entered into a plea bargain whereby he pled guilty to second degree burglary and admitted a prior strike conviction in exchange for a six-year prison term. By the terms of the bargain, it was agreed that he would be released from custody following sentencing. If he kept his appointment with the probation officer, committed no new offenses, and returned for sentencing, the strike would be dismissed, a prior-prison-term enhancement would be imposed, and he would received specified time credits. The agreement also included appellant’s waiver of his rights to not be sentenced to a greater term than that for which he negotiated unless he was properly charged and convicted of a new offense, as well as his agreement that the judge could determine any violation of his Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247) for failing to appear or committing a new offense, by a preponderance of evidence. As agreed, appellant was sentenced to the six-year term and released. He subsequently failed to return as ordered. It was determined that at the time of the sentencing hearing, he was in custody for a Health and Safety Code violation in another jurisdiction. When he appeared for sentencing in 2007, the court ordered execution of the six-year sentence, without finding that he had violated his Cruz agreement. Appellant argued a due process violation as he had not been provided notice that he allegedly violated the terms of his Cruz waiver and because the court failed to state why appellant was found in violation. The appellate court found that by virtue of appellant’s waiver to be properly charged and convicted of his violation of the Cruz waiver, the argument presented was a challenge to the plea and dismissed the appeal as no certificate of probable cause had been obtained.