“Cruz Waiver” – What is it and should I agree to one?

In California, a Cruz Waiver is a promise by you to stay out of trouble while out of custody and to return to court for your sentencing hearing. If you break that promise, you waive your right to the terms of the plea bargain or indicated sentence and can face a harsher sentence.

“Cruz Waiver” Explained

A Cruz Waiver is a relinquishment of your right to enforce the terms of a plea agreement, should you violate the terms of your release or fail to appear at your sentencing hearing. Judges may request a Cruz Waiver before releasing you between the plea deal and the sentencing hearing.

Cruz Waivers often come in the form of an alternative sentence in the plea bargain. They are an exception to the rule that you have a right to withdraw your plea deal if the superior court does not accept it.¹ Cruz Waivers get around this rule by allowing the court to impose the alternative sentence in the agreement. That alternative can be up to the maximum sentence allowed by statute.

For example: Jack agrees to a plea bargain for a misdemeanor offense of domestic violence that carries up to 6 months in county jail, on the condition that he does not have a criminal record. The probation report reveals prior convictions. Jack is sentenced to a 3-year state prison sentence.²

These waivers allow the sentencing court to impose higher penalties if, after pleading guilty to a crime and being released pending sentencing, you:

• commit another crime,
• fail to appear at sentencing, or
• violate any other rule set out by the court for your release.

You have to knowingly waive these rights, though. Courts are not allowed to impose harsher penalties than agreed to in the plea deal simply because you failed to appear at the sentencing.³ Doing so infringes on your constitutional rights to due process.⁴ Instead, you can fight the criminal charges of failure to appear.

The Cruz Waiver takes its name from the California Supreme Court case People v. Cruz.⁵ It is sometimes referred to as a Vargas Waiver after a subsequent appellate court case, People v. Vargas. They may also be referred to as “Cruise Waivers.”⁶

When are they available?

Cruz Waivers are only available in a limited set of circumstances. You:

• must have pleaded guilty or filed a no contest plea to a criminal offense,
• have to be out of custody on bail or your own recognizance at the time of your plea agreement, and
• must receive a stay in sentencing from the court so you can arrange your affairs before surrendering to jail.

If all of these conditions are met, the trial court judge accepting your plea agreement will often require a Cruz Waiver before releasing you until the sentencing hearing. If you knowingly and intelligently agree, the waiver will relinquish certain rights if you are charged with a crime or fail to appear at the hearing before the sentencing judge. The rights that you waive are to:

• the terms of the original plea agreement,
• challenge a harsher sentence if imposed by the court, or
• withdraw your guilty plea.

What are the benefits of a Cruz Waiver?

By agreeing to a Cruz Waiver, you can obtain a release from jail in the weeks that lie between your guilty plea – which often happens at the arraignment – and your sentencing hearing. This can provide crucial moments for you to arrange your affairs before going to prison for the original offense.

You may use this time to:

• notify your boss,
• get out of your apartment lease,
• settle your finances,
• turn off your electrical service and other utilities,
• end any service subscriptions,
• arrange for child custody, and
• put your belongings in storage.

However, because Cruz Waivers can come with a sentencing enhancement if you break one of the court’s rules, it is important to weigh the options with a skilled criminal defense attorney, first. Many Cruz Waivers come with conditions you have to follow while out of custody, such as:

• remaining in California (unless you get the court’s permission to travel),
• submitting to drug testing, and/or
• agreeing to a curfew.

What happens if I fail to appear at sentencing?

If you have accepted a Cruz Waiver to be released pending your sentencing hearing, and then miss that hearing, a bench warrant will be issued for your arrest. Once law enforcement makes the arrest, you will find that the court has rejected your previous guilty plea and that they no longer have the right to withdraw it. The terms of the plea agreement are forgotten and you will likely face a higher sentence because of your flight.

You will also face charges for failure to appear; a criminal case that can carry additional penalties.

Additional resources

For more in-depth information about sentencing, refer to these scholarly articles:

• The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings – The Vanderbilt Law Review.
• Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings – Iowa Law Review.
• Victim Impact Videos: The New-Wave of Evidence in Capital Sentencing Hearings – Queensland Law Reporter.
• The Emergence of Sentencing Hearings – Punishment & Society.
• The Standard of Proof at Sentencing Hearings under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate – University of Illinois Law Review.

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