Reported / Citable
Background
In December 2023, Freland Brian Jones entered a no-contest plea in San Luis Obispo County to felony corporal injury to a spouse or cohabitant under Penal Code section 273.5 and to violating a court order. The trial court accepted a negotiated plea calling for a sentence of felony probation. The judge advised Jones that under the People v. Cruz framework, if he failed to appear for sentencing or committed a new offense before sentencing, he could be sentenced to up to four years in state prison.
Jones did not appear at the January 2024 sentencing hearing because he was in custody in Fresno County on another matter. His defense counsel told the court that the failure to appear was not willful. The court issued and held a warrant. At a later hearing, the prosecutor argued that Jones had violated the Cruz waiver because he had committed a new offense in Fresno after the plea, leading to his Fresno custody.
To prove the violation, the prosecutor presented four documents: a CLETS rap sheet and three uncertified records from the Fresno superior court. Defense counsel objected, arguing that the CLETS report did not show a conviction and that the Fresno superior court records were uncertified and unauthenticated. The trial court overruled the objections, found a Cruz waiver violation, and sentenced Jones to four years in state prison.
The Court’s Holding
The Second District Court of Appeal, Division Six, reversed and remanded. The court held two things. First, a defendant who is in custody in another jurisdiction at the time of a scheduled sentencing hearing does not, by virtue of being in custody, willfully fail to appear. Such a defendant cannot appear, and a Cruz waiver penalty for nonappearance does not apply unless the prosecution proves an underlying willful act that placed him in custody, and proves it with admissible evidence.
Second, even if the prosecution’s theory was that Jones’s commission of a new offense in Fresno after the plea was the willful conduct triggering the Cruz waiver, the prosecution failed to prove that fact with admissible evidence. The CLETS rap sheet did not show a conviction and was not current. The three Fresno superior court documents were uncertified, and the California Supreme Court has held that an uncertified copy of a court record is not, by itself, reliable enough to constitute prima facie evidence of a prior conviction. The prosecutor did not call any witness or submit any sworn declaration to authenticate the documents.
The court further explained that even certified records can be used only to prove the fact of conviction, not to prove the date or other underlying facts of the offense. Establishing the date of the alleged Fresno offense, which was central to the prosecution’s theory of post-plea misconduct, required testimony or other admissible evidence. Because the trial court erred by admitting the uncertified documents and by finding a willful failure to appear without sufficient evidence, the four-year sentence could not stand. The case was remanded for further proceedings, and the prosecution remains free to attempt the proof again with admissible evidence.
Key Takeaways
- A defendant in custody in another jurisdiction at the time of a scheduled hearing has not, by that fact alone, willfully failed to appear for purposes of a Cruz waiver.
- Uncertified copies of court records, standing alone, are not reliable enough to serve as prima facie evidence of a prior conviction or its underlying facts.
- A CLETS rap sheet that does not show a conviction or that is not current cannot be used as prima facie proof of a conviction.
- Even certified court records can establish only the fact of conviction; the date and circumstances of the offense generally require additional admissible evidence.
- Reversal of a Cruz waiver finding does not preclude the prosecution from attempting to prove the violation again with admissible evidence on remand.
Why It Matters
The decision is a useful reminder that Cruz waiver enforcement is a serious matter that requires proper proof. Prosecutors who rely on uncertified records and rap sheets risk reversal and remand. They should obtain certified copies and live witness testimony when seeking to prove the underlying conduct that triggered a defendant’s nonappearance.
Defense lawyers should make timely and specific evidentiary objections to uncertified records and to CLETS reports that do not show what the prosecution claims they show. They should also press the argument that a defendant in custody elsewhere cannot “willfully” fail to appear without an antecedent willful act proven by admissible evidence. Trial courts faced with Cruz waiver allegations involving out-of-county custody should require careful evidentiary showings before imposing increased prison terms.