Cruz Waiver

During the course of a criminal proceeding, a defendant (accused) has the option to plea bargain or go to trial. That decision is made between the defendant and his or her attorney. The advantage of a plea bargain is that a defendant can usually obtain a more lenient sentence rather than risk going to trial and lose and receive a harsher sentence. In California, if a defendant enters into a plea agreement and then fails to appear for sentencing, the judge may refuse to enforce the plea bargain.

Generally, if a judge disapproves a plea bargain, the defendant may withdraw his or her plea. (California Penal Code section 1192.5). However, a defendant can agree to a harsher sentence being imposed by the judge for failing to appear for sentencing (usually scheduled two to four weeks after the plea is taken). If the defendant waives or gives up their right to withdraw the guilty or no contest plea on their failure to appear for the sentencing hearing (at the time the plea is taken) and the waiver is knowingly and intelligently made, the defendant loses the benefit of the plea bargain and can now be sentenced to a harsher sentence for not showing up to the sentencing hearing.

This waiver is referred to as the Cruz Waiver. In essence, a defendant who enters into a Cruz Waiver is giving up their right to withdraw the plea for not showing up to the sentencing. In fact, the defendant subjects himself or herself to a harsher sentence for not showing up to the sentencing after having agreed to do so.

EXAMPLE: John takes a plea to a felony domestic violence charge and as part of the plea bargain agrees to a 30 day county jail sentence and a dismissal of the remaining felony charges. John takes the plea on February 15th and agrees to appear for the final sentencing hearing one month later. When John takes the plea the judge asks the defendant if he agrees to a Cruz Waiver-that is if he gives up his right to withdraw his plea and to the 30 day county jail sentence and a dismissal of the remaining charges.

John is told by the judge at the time of the plea that if he does not show up at the sentencing in one month that all bets are off-meaning that he loses the 30 day county jail sentence and dismissal of the remaining charges and that he can be subjected to a harsher sentence. In this case, he could be facing a state prison sentence. When a defendant accepts a Cruz Waiver he or she in essence is saying they give up their right to withdraw the plea and subject themselves to a harsher sentence.

The Cruz Waiver is named after the two California appellate court decisions that created it: People v. Cruz (1988) 44 Cal.3d 1247 and People v. Vargas (1990) 223 Cal.App.3d 1107.

Consult with an experienced California criminal defense attorney to learn more about plea bargaining and Cruz Waivers.