P. v. Carlsen

Filed 10/11/07 P. v. Carlsen CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.

William A. Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant, Brian Christopher Carlsen, contends the trial court violated his plea agreement by imposing a sentence greater than indicated in the original negotiated disposition. Appellant further argues that certain restitution fines were improperly imposed.

Before appellant changed his plea to no contest to various charges in three cases, the court advised appellant:

Now what the court has indicated, if you want to go ahead and plead today and take Drug Court, is Im going to place you on probation, give you 180 days for all three of these cases, and then as part of your probation youre going to go into the Drug Court program and successfully complete that program.

However, appellant was found ineligible and not accepted into the drug court program. The court then sentenced appellant to an aggregate term of 240 days.

Appellant argues, and respondent agrees, that the court erred in unilaterally increasing the sentence. Appellant initially asserted that the appropriate remedy was specific performance of the plea agreement. Nevertheless, in his reply brief, appellant concedes that under these circumstances, the proper remedy is to allow him to withdraw his no contest plea and go to trial on the original charges. This is correct. Courts find withdrawal of the plea to be the appropriate remedy when specifically enforcing the bargain would have limited the judges sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. (People v. Mancheno (1982) 32 Cal.3d 855, 861.) Here, the circumstances changed, i.e., appellant was not accepted into the drug court program.

Since this case will be remanded and appellant allowed to withdraw his no contest plea, appellant concedes that the balance of his claims relating to restitution fines are moot.

DISPOSITION

The sentence is vacated and the matter remanded to permit appellant to withdraw his no contest plea.

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^* Before Vartabedian, Acting P.J.; Levy, J.; and Gomes, J.