Apprendi, Blakely, and Cunningham have no application in determining whether the conditions of a Vargas waiver have been violated. Appellant pled to attempted murder for a suspended seven-year prison sentence. The plea included a Vargas waiver where appellant agreed to return to court at a later date in exchange for OR release, and a promise he would not violate any other laws. (People v. Vargas (1990) 223 Cal.App.3d 1107.) If appellant satisfied these conditions, he would later be allowed to withdraw his current plea and plead to a lesser offense with a lesser sentence. The prosecutor later sought to revoke the OR release because it was alleged appellant committed spousal abuse. After a hearing, the court found appellant violated the “break no laws” provision, and ordered the suspended sentence executed. Appellant claimed on appeal he was entitled to a jury trial on the Vargas violation. The appellate court disagreed. A determination of whether a Vargas waiver has been violated is not the functional equivalent of deciding whether there are aggravating factors to justify a discretionary sentencing choice. Because of the plea agreement the trial court could only impose one of two specified sentences, and lacked discretion to impose a sentence based on aggravating or mitigating factors.
The plea agreement was not violated because its terms did not contemplate Vargas violations be determined by a jury using the reasonable doubt standard. The court also rejected appellant’s argument that the terms of the plea, as evidenced by the guilty plea waiver form, required a conviction in a separate criminal case before they trial court could find he violated the Vargas waiver. At all times, the parties acted as if appellant had marked a paragraph on the change-of-plea form (which he crossed out) indicating that a willful violation of the release conditions would be decided by the sentencing judge, without a jury, and by a preponderance standard.