People v. Wilkins CA6, H047572

Background:

On Sept. 1, 2018 Wilkins was arrested riding a stolen Yamaha with fraudulent paper plates; police found methamphetamine and a pipe on him.
Wilkins had prior felony convictions and had been on post-release community supervision with multiple PRCS violations; information alleged seven prior prison-term enhancements under Pen. Code § 667.5(b).
On May 16, 2019 Wilkins entered an open no-contest plea; the court indicated a three-year sentence (1 year custody + 2 years mandatory supervision) but warned the indicated term was not binding if Wilkins failed to comply with conditions or appear.
The court released Wilkins on supervised own-recognizance (SORP) with reporting and drug-testing conditions; Wilkins failed to appear at the June 12 sentencing date and did not comply with pretrial services/drug testing.
At sentencing the court increased custody time to a four-year term (to be served in custody) citing Wilkins’s noncompliance; the minute order showed the § 667.5(b) prior-prison-term punishments were struck.
Wilkins appealed, arguing the court abused discretion by exceeding the indicated sentence without a Cruz waiver and violated due process by not holding an evidentiary hearing; he also sought retroactive relief under SB 136 to strike prior-prison-term enhancements.

Issues:

Issue	People’s Argument	Wilkins’s Argument	Held
Whether court abused discretion in increasing sentence beyond indicated three years	Court may increase an indicated sentence where defendant agreed that new facts or noncompliance could lead to higher term; plea form and colloquy put defendant on notice	Court increased sentence without an actual Cruz waiver; Wilkins did not willfully fail to appear and tardiness was excusable; no evidentiary hearing on willfulness	Affirmed. No abuse: indicated-sentence doctrine (Clancey) permits increase; colloquy and plea form showed Wilkins understood possible increase.
Whether a Cruz waiver was required	Not required because this was an open plea with an indicated sentence, not a bargained-for plea; plea colloquy sufficed	Trial court relied on a mistaken belief a Cruz waiver existed and thus lacked authority to increase sentence	Cruz waiver unnecessary here; Clancey controls—trial court retained full discretion to increase indicated sentence.
Whether there was sufficient evidence/willfulness to justify increased sentence	Substantial evidence of nonappearance and failure to report/test supports court’s factual finding; counsel effectively conceded noncompliance	Wilkins’s tardiness was not willful (mobility issues); court should have held evidentiary hearing before increasing sentence	Substantial evidence supports court’s conclusion; failure-to-hear claim forfeited by not requesting hearing; no due process violation.
Whether prior prison-term enhancements under § 667.5(b) must be stricken under SB 136	SB 136 is retroactive to cases not final and limits § 667.5(b) to sexually violent offenses; enhancements should be stricken	Agrees enhancements are inapplicable under SB 136	Remand not required; enhancements stricken and judgment affirmed as modified.

Key Cases Cited

People v. Cruz, 44 Cal.3d 1247 (Cal. 1988) (limits on imposing greater punishment after breach of a bargained plea; court may accept a waiver permitting higher sentence)
People v. Clancey, 56 Cal.4th 562 (Cal. 2013) (explains indicated-sentence doctrine and court’s retained discretion at sentencing)
People v. Sandoval, 41 Cal.4th 825 (Cal. 2007) (standard for reviewing sentencing for abuse of discretion)
In re Estrada, 63 Cal.2d 740 (Cal. 1965) (statutory ameliorative changes presumed retroactive for nonfinal cases)
People v. Jennings, 42 Cal.App.5th 664 (Cal. Ct. App. 2019) (discusses SB 136’s limitation of § 667.5(b) enhancements)
People v. Buycks, 5 Cal.5th 857 (Cal. 2018) (remand for resentencing generally required when part of sentence is stricken)