Can a defendant withdraw a plea of no contest pursuant to a plea agreement?

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Notes:

1. All further statutory references are to the Penal Code.

2. In People v. Cruz (1988) 44 Cal.3d 1247, 246 Cal.Rptr. 1, 752 P.2d 439, we interpreted the provision of section 1192.5 that permits a defendant who pleads guilty or nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. We held that this provision applies even if the defendant fails to appear for sentencing. We noted in a footnote, however, that a defendant could expressly waive his or her rights under section 1192.5 at the time the plea was entered. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5, 246 Cal.Rptr. 1, 752 P.2d 439.)

3. Contrary to the assertion of defendant's counsel at oral argument, defendant did not move to withdraw her plea of no contest. In fact, defendant made it clear in her subsequent motion to recall the sentence pursuant to section 1170, subdivision (d), that, although she believed she had the right to withdraw her plea, she wished only "to get the benefit of her original bargain."

4. Section 1192.5 provides, in relevant part: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."

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Notes:

1. All further statutory references are to the Penal Code.

Notes:

2. In People v. Cruz (1988) 44 Cal.3d 1247, 246 Cal.Rptr. 1, 752 P.2d 439, we interpreted the provision of section 1192.5 that permits a defendant who pleads guilty or nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. We held that this provision applies even if the defendant fails to appear for sentencing. We noted in a footnote, however, that a defendant could expressly waive his or her rights under section 1192.5 at the time the plea was entered. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5, 246 Cal.Rptr. 1, 752 P.2d 439.)