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

Posted on May 1, 2021

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

Cruz Waivers come from a California Supreme Court case of the same name. They are sometimes called “Vargas Waivers,” after a similar ruling from the California Court of Appeals. They may also be referred to as “Cruise Waivers.”

What is a Cruz Waiver in California?

A Cruz Waiver is a relinquishment of the defendant’s right to enforce the terms of a plea agreement, should the defendant violate the terms of his or her release or fail to appear at their sentencing hearing. Judges may request a Cruz Waiver before releasing the defendant 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 defendants have a right to withdraw their 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, the defendant:

• commits another crime,
• fails to appear at sentencing, or
• violates any other rule set out by the court for their release.

The defendant has to knowingly waive these rights, though. Courts are not allowed to impose harsher penalties than agreed to in the plea deal simply because the defendant failed to appear at the sentencing.³ Doing so infringes on the defendant’s constitutional rights to due process.⁴ Instead, the defendant 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.⁶

When are they available?

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

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

If all of these conditions are met, the trial court judge accepting the defendant’s plea agreement will often require a Cruz Waiver before releasing them until the sentencing hearing. If the defendant knowingly and intelligently agrees, the waiver will relinquish certain rights if the defendant is charged with a crime or fails to appear at the hearing before the sentencing judge. The rights that the defendant waives are to:

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

What are the benefits of a Cruz Waiver?

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

Many defendants use this time to:

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

However, because Cruz Waivers can come with a sentencing enhancement if the defendant breaks one of the court’s rules, it is important to weigh the options with a skilled criminal defense attorney, first.

What happens if the defendant fails to appear at sentencing?

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

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

Contact our California criminal defense attorneys if you need representation.

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