Defendant and appellant Mario Cristobal Rabanales appeals his seven-year sentence that was imposed based on his plea of guilty to attempted murder (Pen. Code,
1
§§ 664, 187, subd. (a)) pursuant to a plea agreement. He contends the trial court did not follow the plea agreement when it imposed the seven-year sentence. He also argues that the trial court deprived him of his constitutional right to due process and his right to a jury trial when it found him in violation of his plea agreement and sent him to prison because of a domestic violence allegation that was never tried to a jury or proven beyond a reasonable doubt. To support this argument, defendant cites the Supreme Court’s decisions in
Apprendi v. New Jersey
(2000)
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea bargain, defendant pled no contest to the attempted murder of Joseph B. in violation of sections 664 and 187, subdivision (a), a felony strike offense within the meaning of section 667.5, subdivision (c). 2 The court accepted the plea and found there was a factual basis for the offense based on the evidence in the preliminary hearing transcript. The facts and circumstances of the offense are not relevant to our analysis.
Defendant’s sentencing exposure for the attempted murder offense was five, seven, or nine years in state prison, and the court immediately sentenced him to the middle term of seven years. Defendant was then released on his own recognizance subject to various terms and conditions as set forth on his change of plea form and ordered to appear in court at a later date. If he returned thereafter as ordered by the court, the parties agreed defendant would be allowed to withdraw his no contest plea to attempted murder and to enter a new and different plea.
The new and different plea was to assault with a deadly weapon with force likely to produce great bodily injury in violation of section 245, subdivision (a)(1), which the court advised was not a strike offense. Pursuant to the
Among other terms and conditions, the Vargas waiver included a “break no laws” provision. By way of a petition filed March 15, 2007, the district attorney sought to revoke defendant’s release on the Vargas waiver. As proof of a violation of his release, the district attorney submitted a report alleging defendant committed “spousal abuse” in violation of section 273.5. On April 19, 2007, the court held a preliminary hearing in the new spousal abuse case, as well as a Vargas waiver hearing in this case to determine whether defendant violated the terms of his release. After hearing testimony from several witnesses, including defendant and the victim, the court found defendant violated the break no laws provision of his Vargas waiver, and ordered execution of the seven-year prison term previously imposed. The prosecutor then moved to dismiss the new spousal abuse case; the motion was granted with no objection.
DISCUSSION
Certificate of Probable Cause Requirement
Defendant claims he preserved his right to a jury trial in the plea agreement for any violations of his
Vargas
waiver. He complains the trial court did not follow the plea agreement and instead held a hearing without a jury and found he violated his
Vargas
waiver. Citing
People v. Mancheno
(1982)
The People contend defendant’s claims are not reviewable on appeal because they attack the validity of the plea and defendant did not comply with section 1237.5 by obtaining a certificate of probable cause. Defendant concedes he did not obtain a certificate of probable cause but argues one was not required because he seeks to enforce the plea agreement, not invalidate or withdraw from it. In this regard, he believes his case is distinguishable from our recent decision in
People v. Carr
(2006)
Under section 1237.5, a defendant must obtain a certificate of probable cause to appeal from a judgment entered on a guilty plea unless the appeal falls within an exception. In this regard, a defendant need not comply with section 1237.5 if the appeal is based on “[gjrounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).) Under this exception, compliance with section 1237.5 is not required if the defendant asserts “issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.”
(People v. Panizzon
(1996)
This exception has been interpreted to include claims involving alleged violations of the plea agreement. In
People v. Kaanehe
(1977)
In
People v. Brown
(2007)
Likewise, in a case entitled
People v. Vargas
(2007)
Based on the foregoing, it is apparent defendant is alleging a breach of the plea agreement by the court, which he contends occurred after entry of the plea and pertains only to a matter involving sentencing. Thus, it is appropriate for us to address defendant’s arguments even though he did not obtain a certificate of probable cause.
Alleged Violation of Apprendi, Blakely, and Cunningham
Citing Apprendi, Blakely, and Cunningham, defendant contends he was ' entitled to a trial by jury and finding of guilt beyond a reasonable doubt on the question of whether he violated the conditions of his release under the Vargas waiver. Although he acknowledges the facts at issue here do not directly “come within the ambit” of Apprendi, Blakely, and Cunningham, he argues they do “by implication.” However, he does not explain how or why he believes the facts of his case fall within the holdings of the Supreme Court’s decisions in these cases.
In
Cunningham,
the most recent of the referenced decisions, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.”
(Cunningham, supra,
Alleged Violation of Plea Agreement
Citing the written change of plea form he signed on January 16, 2007, which was also signed and approved by the court and the district attorney, defendant claims he preserved his right to have any alleged violations of his Vargas waiver determined by a jury under the reasonable doubt standard. The referenced change of plea form is a three-page standardized document that can be adapted for use in a variety of different cases. The form includes 22 numbered paragraphs. On the right side of each page, next to each numbered paragraph, there is a coordinating numbered box. When the defendant writes his initials in a numbered box, he indicates his agreement with the coordinating paragraph. When a box is crossed out, it “means that the information next to that box does not apply” to the defendant. Defendant claims he preserved his right to a jury trial on any alleged violations of his Vargas waiver by crossing out and not initialing paragraph 16g on page 3 of the change of plea form.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in
As mentioned above, defendant was released on his own recognizance pursuant to a
“Vargas
waiver,” which is based on the approval of a similar plea agreement in
Vargas, supra,
As permitted by
Vargas,
paragraph 17 of defendant’s change of plea form, which is entitled
“Vargas
waiver,” reads as follows: “I understand that I am being sentenced today pursuant to the initial terms stated in paragraph 9. If I comply with the conditions set forth in numbers 16a, 16b, 16c, 16d, 16e, and 16f, and any other terms as ordered, the court will resentence me pursuant to the remainder of the terms described in paragraph 9.” Paragraph 9 of the change of plea form states defendant “freely and voluntarily” agrees to plead no contest “[a]s a result of plea bargaining” and/or because the district attorney agreed to the following terms, which were handwritten on the form: “I will plead today to the charged offense ([§§ 664, 187]) on a
‘Vargas'
Paragraph 16 on the change of plea form is entitled
“Cruz
waiver.” Since the
Vargas
waiver in paragraph 17 incorporates by reference paragraphs 16a through 16f of the
Cruz
waiver, we must also examine the substance of this paragraph. The
Cruz
waiver in paragraph 16 is based on our Supreme Court’s decision in
People
v.
Cruz
(1988)
Thus, in keeping with the Supreme Court’s decision in
Cruz,
paragraph 16 of defendant’s change of plea form sets forth a
“Cruz
waiver,” which reads in pertinent part as follows: “I understand I have an absolute right under California law to withdraw my plea if the court, for any reason, does not follow the plea bargain agreement.
I also understand that I cannot receive any additional penalty or punishment for any subsequent failure to appear or any new offense unless I am properly charged and convicted of such an offense. I understand and agree as part of this plea bargain agreement to be released upon my own recognizance and to waive these rights, and as a condition of my release, I will:
[f] . . . [][] c. Appear in court for sentencing,
Next to paragraph 16g, however, defendant placed an “x.” Paragraph 16g reads as follows: “g. If I violate any of the above conditions in paragraph 16a-16f, I then agree the court will no longer be bound by this plea bargain and I would not have any right to withdraw my plea. / further understand and agree that any willful violation of these terms will be decided by the sentencing judge without a jury and by a preponderance of the evidence. I further understand and agree, that if the court finds any willful violation of these terms, the court will be free to impose any greater sentence than expressly stated in this agreement, up to the maximum penalty for each offense and enhancement to which I am pleading guilty/no contest or admitting, and I will not have any right to withdraw my plea.” (Italics added.)
By placing an “x” next to paragraph 16g, defendant contends he was guaranteed that the longer sentence of seven years in prison could be imposed against him in this case only if a jury convicted him of a new criminal offense in a separate case. In other words, he seems to believe the “x” next to paragraph 16g somehow granted him the right to be tried and convicted by a jury of a new criminal offense in a separate case before the trial court in this case could find him in violation of his Vargas waiver and impose the greater term of seven years in prison. He argues that if he initialed this paragraph it would mean he waived his right to a jury trial and his right to proof of any alleged violation beyond a reasonable doubt, so by placing an “x” next to paragraph 16g “the converse must also be true.” In our view, defendant is asking us to read a term into the agreement that just is not there.
“Where the parties have reduced their agreement to writing, their mutual intention is to be determined, whenever possible, from the language of the writing alone. [Citations.] We may not ‘create for the parties a contract which they did not make, and . . . cannot insert in the contract language which one of the parties now wishes were there.’ [Citation.] HD ... HD A contract term will be implied only where the term is ‘indispensable to effectuate the expressed intention of the parties.’ [Citation.] A term can only be implied ‘. . . upon grounds of obvious necessity.’ [Citations.]”
(Ben-Zvi
v.
Edmar Co.
(1995)
Here, the plea agreement contains no express term guaranteeing defendant a right to be tried and convicted by a jury of a new criminal offense in a separate case before the trial court in this case could find him in violation of
To resolve this ambiguity, “we consider the circumstances under which this term of the plea agreement was made, and the matter to which it relates (Civ. Code, § 1647) to determine the sense in which the prosecutor and the trial court (the promisors) believed, at the time of making it, that defendant (the promisee) understood it (id., § 1649).” (People v. Shelton, supra, 37 Cal.4th at pp. 767-768.) The record indicates the parties entered into the plea agreement on January 16, 2007, which was the first day of defendant’s trial on the original attempted murder charge. When the court asked whether the parties were ready to bring the jury in, defense counsel asked to make a record of a recent offer by the prosecutor. Defense counsel indicated he recommended defendant accept the offer, but defendant had decided to reject it. Under the terms of the offer, defendant would plead to a felony strike offense in exchange for probation with one year in county jail. If he violated his probation, he would then be sentenced to no more than four years in prison. Defendant indicated he rejected the offer and was willing to go to trial because he was concerned about having a strike offense on his record.
During jury panel selection, there was a recess and the parties reached an agreement, the terms of which were then placed on the record. Defense counsel stated he did not join in the waivers or the plea, and defendant
Based on the record before us, it is highly likely the “x” was placed next to paragraph 16g inadvertently as an oversight that was not detected by counsel or the court rather than as a deliberate act by mutual consent to preserve defendant’s right to a jury trial on any alleged violations of the conditions of his release. We reach this conclusion for several reasons. First, the differences between the prior offer and the final agreement, as well as the comments made on the record, show what served as the most important motivating factors for entering into the plea agreement. Although the parties placed the terms of the plea bargain on the record and the court confirmed defendant intended to waive his right to a jury trial on the attempted murder charge, the parties did not discuss whether defendant was also waiving this right for purposes of the Cruz and/or the Vargas waivers. There is nothing to suggest the parties had any reason to deviate from the standard waivers in paragraphs 16 and 17 on the change of plea form. If there had been some intent to deviate from the standard waivers, we would expect to see some mention of this on the record. Second, without some alteration or rejection of the waivers set forth at the beginning of paragraph 16, placing an “x” next to paragraph 16g was not a clear statement of defendant’s purported intent to preserve his right to a jury trial on any alleged violations of the conditions of his release. In other words, if this had been his true intent, he would have had a strong incentive to make this intent clear, so we would expect to also see some alteration or rejection of the initial waivers in paragraph 16.
In addition, it is reasonable to infer the prosecutor would not have extended an offer which provided for a two-tiered sentence similar to that approved in Vargas if it did not include the standard waivers listed in paragraphs 16 and 17 on the change of plea form. These standard waivers, particularly the waiver of the right to a jury trial on any alleged violations of the conditions of release, would have been significant to the prosecution. Having already prepared and appeared for trial on the attempted murder charge, the prosecution would have had a strong desire to avoid the time and expense of another jury trial and to be able to resolve any alleged violations of the conditions of release before the court, without a jury, under a preponderance of the evidence standard.
Most tellingly, the parties’ subsequent conduct is inconsistent with the existence of a waiver of the right to a jury trial on any alleged violations of the conditions of release. In this regard, defendant appeared before the court
When defendant and his counsel next appeared before the court for the combined hearing, defense counsel stated as follows: “If we’re doing a preliminary hearing on [the new case] as well as ... a Vargas violation hearing on the old case ...[][]... [f] ... it would be my contention that they should be done in separate hearings. [][] The reason for that is the Court will have to make its evaluation as to the preliminary hearing and the Vargas violation with two separate standards. [][] I believe that a preponderance of the evidence [standard] is required for the Vargas violation, whereas a strong suspicion is required for the preliminary hearing; so based on the fact that the Court will have to apply two different standards—and I’m not suggesting that this Court can’t separate in its analysis and opinion . . . but for the record, I would still—I would request that we have two separate hearings and not one combined hearing.” The court responded it could separate the two standards and would run the hearings concurrently. After hearing the evidence, the court concluded there was sufficient evidence to believe defendant committed the spousal abuse charge in the new case and ordered defendant held to answer on the complaint. With respect to the “Cruz-Vargas allegations,” the court stated as follows: “[T]he court finds by a preponderance of the evidence that [defendant] did in fact violate his Cruz-Vargas waiver by committing the offenses alleged in [the new spousal abuse case], [][]... [][] Based upon that finding, the Court is simply going to let stand the sentence that occurred on January 18th of ’07. [][] [Defendant] will be committed to the state prison for the aggravated [szc] term of seven years.” Defense counsel then made no objection when the court granted the prosecutor’s motion to dismiss the spousal abuse case without a jury trial.
In sum, all of the parties acted at all times as if defendant had initialed paragraph 16g on the change of plea form agreeing “that any willful violation of [the conditions of defendant’s release] will be decided by the sentencing judge without a jury and by a preponderance of the evidence.” Under these circumstances, we cannot conclude the parties had any intent whatsoever not to have made paragraph 16g an integral part of their agreement. We must therefore reject defendant’s contention the trial court did
Sufficiency of the Evidence
Alternatively, defendant argues there is insufficient evidence to establish he violated the terms of his Vargas waiver by committing spousal abuse. Although he contends the offense should have been proved beyond a reasonable doubt, he argues there is insufficient evidence even under the lower preponderance of the evidence standard applied by the court. Essentially, defendant’s contention is there was insufficient evidence because he testified he did not strike the victim and because the victim’s testimony was weak and not credible.
Based on our previous discussion, it was appropriate for the trial court to apply the preponderance of evidence standard to determine whether defendant violated the break no laws condition of his release. The question whether defendant violated the conditions of his release is one of fact, which we review under the substantial evidence test. “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court
begins
and
ends
with the determination as to whether,
on the entire record,
there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .”
(Bowers v. Bernards
(1984)
The People claimed defendant violated his “Cruz/Vargas release” by violating section 273.5, which states in pertinent part as follows: “(a) Any person who willfully inflicts upon a person who is ... the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony . ... fit] ... [f] (c) As used in this section, ‘traumatic condition’ means a condition of the body, . . . whether of a minor or serious nature, caused by a physical force.”
“[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.
The injuries to the victim were corroborated by the testimony of two other witnesses. First, in response to questioning by defense counsel, a police detective testified he contacted the victim by telephone on March 13, 2007, and then talked with her again in person on the same day. During the in-person meeting, the detective said he noticed the victim had a black eye and some bruising on the top and bottom of both of her forearms. Later, to rebut defendant’s testimony the victim had no injuries, the People called the victim’s aunt to the stand. The aunt testified she saw the victim shortly after the incident and noticed she had a black eye and bruises and cuts on her arms.
As defendant contends, there is contrary evidence in the record. For example, the victim was reluctant to talk to the police detective. When the detective asked her to tell him what happened, she asked if she could wait until the next day because she wanted to think about it. She also told the detective her injuries were not caused by defendant. In addition, defendant testified in his own defense. He admitted he had been drinking heavily during the time in question. He also admitted he and the victim had gotten into an argument, but he denied hitting her. He claimed the victim was mad at him so she lied. He also denied the victim had a black eye or any other injuries.
In sum, defendant has not shown an absence of evidence to support the trial court’s finding he committed spousal abuse. Rather, defendant merely cites conflicts in the evidence that made it possible, although improbable, for the court to interpret the evidence in his favor. Under the relevant standard of review, circumstantial evidence is not insufficient simply because it is “ ‘ “susceptible of two interpretations, one of which suggests guilt and the other innocence.” ’ ”
(People v. Snow
(2003)
The judgment is affirmed.
Hollenhorst, J., and Miller, J., concurred.
Appellant’s petition for review by the Supreme Court was denied February 18, 2009, S169402. George, C. J., did not participate therein.