People v. Pavelko CA2/6

Opinion

Filed 9/16/26 P. v. Pavelko CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B348616 (Super. Ct. No. 2025012658) Plaintiff and Respondent, (Ventura County)

v.

BRIAN NICHOLAS PAVELKO,

Defendant and Appellant.

Brian Nicholas Pavelko appeals a judgment following his guilty plea to making criminal threats, a felony. (Pen. Code,1 § 422, subd. (a).) Pursuant to a plea bargain, the trial court would reduce the offense to a misdemeanor at sentencing. The court released Pavelko pending sentencing pursuant to a “Cruz waiver” (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz)) with a promise that he would appear for sentencing. Pavelko subsequently did not appear for sentencing. The court found he 1 Undesignated statutory references are to the Penal Code. violated his Cruz waiver and placed him on probation for his felony conviction. We conclude the trial court erred because it did not find that Pavelko willfully violated his Cruz waiver. The People “had the burden to prove by admissible evidence that appellant willfully failed to appear for sentencing” (People v. Jones (2026) 119 Cal.App.5th 261, 265 (Jones)) and did not meet that burden. We reverse and remand. FACTUAL AND PROCEDURAL HISTORY2 On May 12, 2025, Pavelko entered Joe’s Quick Shop and “created a disturbance.” The manager, Michael L., made a report to the police. Nine days later, Pavelko returned, opened the door to the shop and told Michael L., “[Y]ou wanna call the cops? Call the cops. I’m gonna kill you and I’m gonna kill them.” The People filed a felony complaint alleging that Pavelko committed the crime of criminal threats. (§ 422, subd. (a).) Pavelko entered into a negotiated plea agreement where he agreed to plead guilty. Part of the plea agreement specified that Pavelko’s conviction would be reduced to a misdemeanor at sentencing and he would be placed on probation with credit for time served. At the change of plea hearing, the court accepted Pavelko’s plea, stating, “I’m going to let you out of custody pending that sentencing date if you’re willing to enter into a Cruz waiver with me.” The court explained that a Cruz waiver required Pavelko to “report to probation as ordered, stay out of trouble,” and “come back here” for sentencing. “If you do those three, then I’m obligated to give you the sentence that your lawyer has negotiated for which is a reduction to a misdemeanor 2 Because Pavelko pleaded guilty, the factual history is based on the probation report.

2 and credit for time served.” “[I]f you break one of those three promises . . . all bets are off with respect to what the sentence might be. . . . [T]hen your misdemeanor’s gone, and I can sentence you up to the maximum, which is three years in prison.” Pavelko agreed to the “Cruz waiver” and checked a box in his signed plea form stating, “I understand that if, after my plea and before sentencing, I commit another crime, violate any condition of my release, or willfully fail to appear for my probation interview or my sentencing hearing, the negotiated sentence portion of this agreement will be canceled. I will be sentenced unconditionally up to the maximum sentence allowed under the law, and I will not be allowed to withdraw my guilty plea(s).” Pavelko was released from custody on June 30 and ordered to return for sentencing on August 4, 2025. Pavelko reported to probation on July 15 but did not appear at the August 4 sentencing hearing. The trial court issued a bench warrant. The next day, defense counsel told the court Pavelko was in custody “but authorized [him] to appear 977[3] on his behalf.” The sentencing hearing was continued to August 7. At the August 7 sentencing hearing, with Pavelko present and in custody, counsel stated he “would like to make a record . . . .” He said, “I believe that [Pavelko’s] failure to appear was not willful. He did get on the wrong bus. It went the wrong way. By the time he got here, court was over and the warrant had been issued.” The prosecutor said, “There’s a Cruz waiver violation in this case . . . . “He failed to appear at sentencing on August 4th. There’s a willful failure to appear because he’s responsible for getting here. And so the People ask that the 3 See section 977, subdivision (b).

3 Court sentence the defendant to two years formal probation with credit for time served.” The trial court did not make a finding on whether Pavelko’s failure to appear on August 4 was willful. It stated, “[w]ithout the reduction from the People, this matter is going to stay a felony.” It placed Pavelko on two years felony probation with credit for time served. DISCUSSION Cruz waiver Pavelko contends the trial court erred by finding he violated his Cruz waiver agreement because there was no evidence that his failure to appear was willful. We agree. “In People v. Cruz, supra, 44 Cal.3d at page 1249, our Supreme Court held a defendant who pleads guilty pursuant to a plea bargain that is subsequently disapproved by the trial court for defendant’s failure to appear is entitled to withdraw his or her plea. But ‘if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained for term. Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.’ ” (Jones, supra, 119 Cal.App.5th at p. 264.) Here, the trial court did not advise Pavelko of his right to withdraw his plea if the court imposed a more severe sentence. (See § 1192.5, subd. (c).) Nor did the court advise Pavelko that his conviction would not be reduced to a misdemeanor if he “willfully” failed to appear for sentencing. But Pavelko’s written plea form states that he “will not be allowed to withdraw [his]

4 guilty plea” and that his negotiated disposition would be “cancelled” if he willfully failed to appear at sentencing. To deprive him of the benefit of his plea bargain, the trial court must find that Pavelko willfully failed to appear at his August 4 sentencing hearing. A defendant acts “willfully” if he knows what he is doing and intends to do it. (§ 7, subd. (b)(1); People v. Atkins (2001) 25 Cal.4th 76, 85–86.) “[T]he term ‘willful’ requires only that the prohibited act occur intentionally.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.) We recently held in Jones that it is the People’s burden to prove a defendant willfully failed to appear for sentencing after being released pursuant to a Cruz waiver. (Jones, supra, 119 Cal.App.5th at p. 265.) Thus, we concluded that this burden requires the People to present “admissible evidence.” (Ibid.) Here, the People concede they “did not present sufficient evidence to show appellant willfully failed to appear for sentencing.” In fact, they presented no evidence. The People relied on the prosecutor’s conclusion that “There’s a willful failure to appear because [Pavelko’s] responsible for getting here.” From our review of the record, it does not appear that the trial court found, explicitly or implicitly, that Pavelko’s failure to appear was willful. We presume that a trial court understands and properly carries out its duties. (Evid. Code, § 664; People v. Stowell (2003) 31 Cal.4th 1107, 1114.) But the trial court’s statements here suggest that it did not consider whether Pavelko’s failure to appear was willful. The court did not properly advise Pavelko that he could withdraw his plea (§ 1192.5, subd. (c)), did not advise him that his conviction would not be reduced to a misdemeanor if he “willfully” failed to appear at sentencing, and stated the conviction would “stay a felony”

5 “without reduction from the People.” On this record, we must conclude that the trial court imposed the greater term of a felony conviction exclusively on the fact of Pavelko’s failure to appear on August 4, 2025, without determining whether the failure to appear was willful. The People suggest that Pavelko should have made a showing that he did not willfully fail to appear for sentencing. But the sentencing hearing preceded the guidance in Jones, supra, 119 Cal.App.5th 261. And Pavelko’s counsel made an offer of proof to support that claim by representing to the trial court that he mistakenly got on the wrong bus and arrived too late for the sentencing hearing on August 4. The prosecutor did not object to the offer of proof, present evidence to challenge it, or claim that counsel’s statements were not credible. The prosecutor’s position was that Pavelko did not appear and therefore he necessarily willfully violated his Cruz waiver. That position is a conclusory accusation that cannot prove a willful failure to appear. We vacate the sentence and remand to the trial court to determine whether Pavelko’s failure to appear on August 4, 2025, was willful. DISPOSTION The judgment is reversed. The matter is remanded to the superior court so that it can give the parties the opportunity to present evidence and to make a finding of whether Pavelko’s 6 failure to appear at his August 4, 2025, sentencing was willful. (Jones, supra, 119 Cal.App.5th at p. 266.) NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

CODY, P. J.

YEGAN, J.

7 Ferdinand Inumerable and David M. Hirsch, Judges Superior Court County of Ventura ______________________________ Christina Vanarelli, Inc. and Christina Vanarelli, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.