P. v. Culbertson
Filed 9/7/07 P. v. Culbertson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. RICHARD EUGENE CULBERTSON, Defendant and Appellant. | E042585 (Super.Ct.No. FSB059216) OPINION |
APPEAL from the Superior Court of San Bernardino County. Tara Reilly and James M. Dorr, Judges. Affirmed in part, reversed in part with directions.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ana Duarte and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) pursuant to a plea bargain that defendant would be granted probation under Proposition 36 (Pen. Code 1210.1),[1]but he failed to appear for sentencing. Based on the failure to appear, the court denied Proposition 36 probation and granted three years probation, ordering enrollment in the PRIDE drug treatment program. Defendant contends the failure to appear did not make him ineligible for probation under Proposition 36, and that on remand the superior court should be directed to grant probation under Proposition 36 or permit defendant to withdraw his plea. The People agree with defendants contention.
FACTS
On December 6, 2006, defendant pled guilty to possessing methamphetamine, on or about November 23, 2006, in exchange for three years probation under Proposition 36 and release pending the sentencing hearing ultimately set for January 3, 2007. Defendant said he understood that failing to appear would be a felony punishable by three years in prison.
Defendant failed to appear on January 3, 2007, and a bench warrant was issued. Defendant appeared via video in custody on February 9, 2007, and was arraigned on the failure to appear. A probation officer and, at the sentencing hearing on February 26, 2007, the court, noted defendants admission that his failure to appear resulted from his drug use; nevertheless, although the probation officer recommended Proposition 36 probation, the court denied it reasoning that someone who failed to appear was not amenable to probation under Proposition 36 and that the PRIDE drug treatment program was more appropriate.
Although the record on appeal does not contain the proceedings with respect to the failure to appear, references in the record indicate that the failure to appear was charged as a misdemeanor under a separate case, No. MSB098527, and that the prosecutor agreed to its dismissal at the sentencing hearing. Thus, the record contains no indication that defendant was convicted of a failure to appear.
DISCUSSION
Defendant contends that we should direct the superior court to sentence him pursuant to the plea bargain, or to disapprove the plea bargain and allow defendant to withdraw his plea. The People support defendants contention. We agree.
In this case, defendant would be ineligible for Proposition 36 treatment only if he had been convicted of the failure to appear as a misdemeanor, which would have qualified as a misdemeanor not related to the use of drugs . . . . ( 1210.1, subd. (b)(2).)[2] Since defendant was not convicted, he remains eligible for treatment under Proposition 36.
The question then becomes whether the court had the discretion to deny probation under Proposition 36 and to grant probation on different terms, despite the plea bargain for Proposition 36 probation. Under section 1192.5, when a defendants guilty plea is accepted, the court cannot proceed as to the plea other than as specified in the plea. Accordingly, we must analyze the plea agreement to determine if the court strayed from the bargain.
We review the plea agreement using the paradigm of contract law. (People v. Knox (2004) 123 Cal.App.4th 1453, 1458.) We begin by looking at the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, [we] seek to carry out the parties reasonable expectations. [Citations.] (Ibid.)
Defendants plea bargain specified that he be granted three years felony probation, with [a] PC 1210 rehab program as a term of probation. A defendant would reasonably prefer treatment under Proposition 36 because it provides for escalating punishments that may be imposed by the court prior to probation being revoked. ( 1210.1, subd. (f); In re Mehdizadeh (2003) 105 Cal.App.4th 995, 1006.)[3]
We conclude that due to the constraints of section 1192.5, the court had the discretion to proceed with sentencing defendant to probation as defined in section 1210.1 or allow defendant to withdraw his plea. ( 1192.5.)
DISPOSITION
The sentence is reversed and the matter is remanded to the Superior Court of San Bernardino County. The trial court is directed to sentence defendant pursuant to the plea bargain or allow defendant to withdraw his plea. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
GAUT
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Although the failure to appear resulted from defendants drug use, the crime itself is not a drug-related offense. (See 1210.1, subd. (d); cf. People v. Canty (2004) 32 Cal.4th 1266, 1279 [a driving under the influence misdemeanor is not concerned with drug use].)
[3] Defendant and the People incorrectly cite section 1210.1, subdivision (e). We note that amendments to section 1210.1 became effective on July 12, 2006, and the subdivision that defendant and the People cite as subdivision (e) is now subdivision (f).
