Sometimes a judge will indicate how much time he or she will sentence a defendant to in county jail or in state prison and then grant defendant a few weeks to get his or her “affairs” in order before being actually sentenced. Defendant must then enter his or her plea and agree not to withdraw the plea later.
In a Nutshell: A Cruz waiver is an agreement to give up the plea bargain agreed to and not object to a sentence of up to the maximum allowed for the conviction if defendant fails to appear in court as promised in the future, usually to be remanded.
He or she must also already be out of custody on bail. Such a delay in starting the sentence is to allow defendant to get one’s affairs in order would not apply to someone who is already in custody who did not post bail.
“Getting one’s affairs in order” may mean moving one’s furniture to storage, turning off the utilities to one’s home, letting one’s employer know that he or she will be leaving, arranging for someone else to take care of one’s children or adult dependents, have someone receive one’s mail and pay one’s bills, etc. It may involve signing a power of attorney to let someone else take care of one’s finances.
This delay in starting the time (a stay of execution of the sentence) may also be to allow defendant more time out of custody to see one’s child graduate high school or college before beginning to serve the time.
The delay in the actual sentencing is called “a stay” in sentencing.
The judge may not condition the stay by warning defendant that failure to appear later for sentencing and then to begin serving the sentence will be punished by an additional term of imprisonment. People v. Gooch (1995) 33 Cal.App.4th 1004. Instead, the judge will typically ask the defendant to acknowledge on the record that if he or she fails to appear at a later date for sentencing, the judge’s promise of a certain length of time in custody.
The judge will also tell defendant that if defendant picks up a new case (i.e. is arrested on a new charge and is so charged), the judge’s promise of a certain sentence at sentencing will be withdrawn. This is especially relevant if defendant is being sentenced in the future for a drug offense, an alcohol-related offense, a sex offense, a gang-related offense or domestic violence and it is strongly suspected that during the time between the plea and sentencing, defendant may reoffend.
The judge is statutorily only authorized only to vacate the previously imposed sentence and permit defendant to withdraw the plea, or to reduce the initial sentence. The judge cannot threaten to increase the sentence. People v. Gooch, supra. However, by stating to defendant that his promise of a certain sentence length will be vacated, it is implied strongly that the sentence will increase up to the maximum allowed for the plea.
In this context, a defendant may enter a waiver of the right to have the sentence imposed immediately by agreeing to a sanction (extra punishment, i.e. extra time in jail or prison) for nonappearance and disallowing the withdrawal of a plea. People v. Cruz (1988) 44 Cal.3d 1247, 1250; see e.g. People v. Vargas (1990) 223 Cal.App.3d 1107 (agreed-upon increased sentence if defendant failed to appear at sentencing proper when supported by waivers under Cruz; sometimes referred to as “Vargas” waivers). Other times, a defendant is sentenced to a greater term that will be reduced at the agreed-upon sentence date. People v. Carr (2006) 143 Cal.App.4th 786.
In twenty-one years of practice, I have only seen a Cruz waiver become a problem twice. In one case, my client agreed to put over sentencing a few weeks to get his affairs in order. He then never showed up for sentencing and it was strongly suspected that he simply fled the United States for his birth country. A bench warrant was issued for him and, eventually, if he ever returns to the United States, he may be taken into custody at customs or in any further contact with law enforcement here.
In a second case, my client sadly was being sentenced for a felony DUI, his fourth DUI. The client then entered his plea and waived his right to be sentenced forthwith under Cruz. The judge agreed to allow him thirty days to get his affairs in order prior to starting a two-year sentence in state prison. Despite having a SCRAM (secure continuous remote alcohol monitoring) device on his ankle, he consumed alcohol during the thirty-day period and was arrested again for DUI. I was notified of his arrest well prior to the 30-day period expiring and the judge did indeed increase our client’s sentence.