Filed 7/17/17 P. v. Brown CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Colusa)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

DANA BERNARD BROWN, JR.,

Defendant and Appellant.
C082671

(Super. Ct. No. CR56862)





Defendant Dana Bernard Brown, Jr., appeals the trial court’s imposition of sentence following entry of a negotiated plea. He claims the prosecution breached the plea agreement and he should therefore be permitted to withdraw his plea. The People concede the error. We will accept the People’s concession, reverse the judgment, and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with evading a police officer (Veh. Code, § 2800.2, subd. (a)--count 1), receiving stolen property (Pen. Code, § 496d, subd. (a) (unspecified statutory references are to this code)--count 2), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)--count 3).
Pursuant to a negotiated agreement, defendant entered a plea of guilty to unlawful driving or taking of a vehicle (count 3) in exchange for dismissal with a waiver of the remaining charges pursuant to People v. Harvey (1979) 25 Cal.3d 754, and the prosecution’s agreement to “recommend midterm of 2 years at sentencing.” The parties stipulated to the following factual basis for the plea: On February 14, 2015, in the County of Colusa, defendant was driving a white Volkswagen Jetta owned by Holly Ann Ornelas without her permission and with the intent to either permanently or temporarily deprive her of possession of the vehicle.
At the initial sentencing hearing on May 4, 2016, the trial court denied probation and sentenced defendant to the upper term of three years. The hearing was continued to allow the probation department to provide a supplemental report as to defendant’s presentence custody credits. At the continued hearing on June 8, 2016, the court again imposed an upper term sentence of three years, awarded defendant 176 days of presentence custody credit (88 actual days plus 88 days of conduct credit), and imposed fees and fines.
Defendant filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause.
DISCUSSION
Defendant contends, and the People concede, the prosecution violated the negotiated plea agreement by failing to recommend a midterm sentence. We accept the People’s concession and remand for further proceedings.
Background
At the plea hearing, defendant’s counsel informed the court, without objection from the prosecution, that “it is not a promise, but there was a recommendation of a mid term disposition from the district attorney’s office referenced on the [plea] form.”
The prosecution’s agreement to recommend a midterm sentence was never discussed at the initial sentencing hearing, nor was the recommendation made. The probation report recommended an aggravated term of three years. Defendant’s counsel requested that the court consider probation, including a 24-month treatment program (The Delancy Street Program), but otherwise submitted on the probation officer’s recommendation. The court stated it was not inclined to grant probation due to defendant’s prior felonies, his unsatisfactory prior performance on probation, and the additional reasons set forth in the probation report, and found him statutorily ineligible pursuant to section 1203, subdivision (e)(4). Finding defendant ineligible for section 1170, subdivision (h) sentencing due to his prior serious or violent felony conviction in Texas, the court sentenced defendant to the upper term of three years in state prison.
At the continued sentencing hearing, the court indicated it intended to follow probation’s recommendation. When asked if the People wished to be heard in that regard, the prosecution responded, “We believe the recommendation is appropriate, Your Honor.” The court again denied probation and imposed the aggravated term of three years in state prison, awarded revised presentence custody credits, and reimp
osed fees and fines.
Analysis
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.]’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767.) “[C]ourts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations. [Citations.]” (People v. Nguyen (1993) 13 Cal.App.4th 114, 120, fn. omitted.)
“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433].)
Here, the parties’ written plea agreement contemplated that the prosecution would recommend the midterm sentence. Defendant’s counsel reiterated that portion of the agreement at the time defendant entered his plea. The prosecution failed to honor that portion of the agreement. Instead, the prosecution remained silent during the initial sentencing hearing, and then stated its position at the continued sentencing hearing that the probation department’s recommendation for an aggravated term was “appropriate.” Failure of the state to honor the agreement violates the defendant’s due process rights for which the defendant is entitled to some remedy. (People v. Walker (1991) 54 Cal.3d 1013, 1024; see also People v. Mancheno (1982) 32 Cal.3d 855, 860, citing Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433] [“[V]iolation of the [plea] bargain by an officer of the state raises a constitutional right to some remedy. [Citations.]”].)
As for the appropriate remedy, defendant asserts he must be afforded leave to withdraw his plea. The People argue we should remand the matter for resentencing to permit the prosecution to recommend the middle term as promised and the trial court to exercise its discretion to impose the sentence it deems appropriate.
“The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of each case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases.” (People v. Mancheno, supra, 32 Cal.3d at p. 860.)
While the agreement here did not call for a particular sentence, nor did it guarantee defendant would receive a two-year sentence, it nonetheless called for a prosecutorial recommendation of a term less than what was recommended by the probation department, affirmed as “appropriate” by the prosecution, and actually imposed by the trial court. Thus, the harm caused by the prosecution’s violation of the plea bargain was the absence of its recommendation of a midterm sentence. Assuming the violation was inadvertent, and in light of the fact that defendant has now served over one year of his three-year sentence and is apparently scheduled to be paroled on August 14, 2017 , we conclude the appropriate remedy under these circumstances is to remand the matter to the trial court to allow defendant to withdraw his plea. We leave it to the parties to determine whether to dismiss the matter for time served, renegotiate a plea agreement, or proceed to trial.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.



HULL , J.



We concur:



RAYE , P. J.



MAURO , J.