P. v. Davenport

Filed 5/12/06 P. v. Davenport CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant appeals from a judgment of conviction of possession of a controlled substance (Health & Saf. Code, § 11350) based upon his plea of guilty and admission of three prior prison term enhancements (Pen. Code, § 667, subd. (b))[1] pursuant to a plea bargain providing for a referral to drug treatment court. Defendant was sentenced to a six-year prison term after he tested positive and his referral to drug treatment court was terminated.

Defendant asserts on appeal that he was entitled to Proposition 36 drug treatment as a matter of law after his failed referral to drug treatment court.[2] He maintains that imposition of a prison sentence for simple possession of a controlled substance was an unauthorized sentence constituting reversible error because section 1210.1, added by Proposition 36, requires a grant of probation and prohibits incarceration as a condition of probation.

Section 1210.1, subdivision (a), states in part: "Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program." A defendant is rendered ineligible for drug treatment under Proposition 36 if he is "convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." (§ 1210.1, subd. (b)(2).)

We reject defendant's contentions and affirm.

A. Procedural History

On August 9, 2004, a four count information was filed against defendant. It charged him with two felonies: transportation or sale of a controlled substance, methamphetamine (Health & Saf. Code, § 11379) (count one) and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364) (count three). It also charged him with two misdemeanors: resisting a peace officer (§ 148, subd. (a)(1)) (count two) and destroying evidence (§ 135) (count four). In addition, the information alleged four prior prison term enhancements (§ 667.5, subd. (b)) arising from different felony convictions, including two convictions of petty theft with a prior (§§ 484, 666), a conviction of possession of a controlled substance (Health & Saf. Code, § 11350), and a conviction of possession for sale of a controlled substance (Health & Saf. Code, § 11351).

On September 16, 2004, the prosecutor and the deputy public defender then representing defendant both indicated that they had been unable to reach a plea agreement. When questioned about the proposal by the court, the prosecutor stated: "The proposal was for the People to add an 11350. Mr. Davenport was to admit a few prior prison terms and be referred to the Drug Treatment Court, with the possibility of having the case dismissed for successful completion of rehabilitation. [¶] He has declined that offer, and we'll set it for trial." Defendant's counsel then indicated that defendant had "a change of heart." The prosecutor stated: "He would be referred to Department 11 on Monday for assessment and the formation of a treatment plan." The court explained to defendant that if he was not accepted into the drug treatment program, he could withdraw his plea but if he was accepted into the program and later failed the program, he could not withdraw his plea.

The prosecutor reiterated the plea offer: "The People would move to amend and add Count 5, simple possession, 11350 of the Health and Safety Code. The defendant was going to admit three prior prison terms. [¶] Under the terms of the plea agreement, he would be eligible for Drug Treatment Court. He will be assessed on Monday. If and when he completes the treatment program that is outlined for him on Monday for which the People have no control over--they will design a program to assist Mr. Davenport in addressing his narcotic addiction. If he completes the program, the charges will be dismissed. If he does not complete that program and fails to do the things required by the Probation Department or Behavioral Health or the program itself, whether it be in or out of residence, then he would be subject to six years in the Department of Corrections. Upper term, plus three is the maximum exposure . . . ."

The court explained: "You could receive up to six years. It doesn't mean you get six years." The court stated: "If you fail, you're going to prison. How long, I can't say."

Defendant announced that he would do the drug program. After advisements and waivers, defendant pled guilty to possession of a controlled substance (Health & Saf. Code, § 11350) and admitted three prior prison term enhancement allegations (§ 667.5, subd. (b)). The court struck the fourth prior prison term enhancement allegation. The court referred the matter to drug treatment court.

At a drug court progress review on December 10, 2004, defendant admitted to using drugs and was ordered to serve a weekend in custody. At a drug court progress review on December 17, 2004, defendant tested positive and his referral to drug treatment court was terminated.

Defendant moved to withdraw his plea of guilty. The supporting declaration of defendant's newly appointed counsel indicated that defendant had been taking the pain medication Vicodin and a psychotropic medication at the time he entered his plea and did not understand "what public defender Deana Davis was telling him." According to defense counsel, "Davenport believed that if he was unsuccessful in drug treatment he would not be sent to prison but he would be sentenced to felony probation" and "Davenport would not have pleaded guilty if he understood the severe outcome of failing to succeed in drug treatment."

At the March 10, 2005 hearing on the motion, defendant's counsel stated that defendant was moving to withdraw his plea on the ground he was not competent at the time he pled "because he was on his medication and there were a couple different medications." Counsel indicated defendant was bipolar. After discussing the September 16, 2004 hearing and recalling that defendant had been "very rational and responsive" and also observing that defendant's motion had been made after he had been kicked out of the drug program, the court denied the motion.

On March 15, 2005, the court denied probation and imposed a total six-year prison term, which consisted of an upper three-year term on the Health and Safety Code section 11350 violation and three consecutive one-year terms for the prior prison term enhancements (§ 667, subd. (b)).

B. Plea Agreement

Defendant claims that he never agreed to a specific sentence or a disposition outside the mandates of Proposition 36. Defendant points out that "the record is devoid of any indication that [he] was even aware of the fact that he was entitled to rehabilitative drug treatment under Proposition 36." Defendant complains that since he did not "knowingly or intelligently give up his right to a Proposition 36 disposition, he cannot be said to have agreed to the sentence in the instant case." He seeks to factually distinguish People v. Chatmon (2005) 129 Cal.App.4th 771, which held that a defendant was barred from arguing that the court should have sentenced him to probation and drug treatment under Proposition 36 because "he received the benefit of his plea bargain." (Id. at p. 773.)

"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. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (Id., § 1649; see AIU [Ins. Co. v. Superior Court (1990) 51 Cal.3d 807,] 822 . . . .)' (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265 . . . .) 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635-1656; Code Civ. Proc., §§ 1859-1861, 1864; [citations].)' (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 . . . ; see also People v. Toscano, supra, at p. 345 . . . .) " (People v. Shelton (2006) 37 Cal.4th 759, 767.)

"[T]he undisclosed intentions of a party to a contract do not furnish a basis for its modification. Brant v. California Dairies, Inc., 4 Cal.2d 128, 133 [48 P.2d 13, 16]; Bell v. Minor, 88 Cal.App.2d 879, 882 [199 P.2d 718]." (Bratnober v. Bratnober (1957) 48 Cal.2d 259, 270-271.) "A party is bound, even if he misunderstood the terms of a contract and actually had a different, undisclosed intention. (Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 133 [48 P.2d 13]; 1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, §§ 244, 522, pp. 212-213, 445-446.)" (Blumenfeld v. R. H. Macy & Co. (1979) 92 Cal.App.3d 38, 46.)

Even if defendant was unaware of Proposition 36, his lack of awareness does not change the plea bargain that he accepted.[3] The objective manifestations of the parties' intent disclosed by the record establish that the plea bargain contemplated that defendant would be sentenced to prison if he failed to successfully complete the agreed referral to drug treatment court. Defendant did not expressly reserve the issue whether section 1210.1 required the court to grant probation instead of sentencing him to prison. (See People v. Shelton, supra, 37 Cal.4th at p. 769; People v. Panizzon (1996) 13 Cal.4th 68, 78, fn. 8.) Consequently, it is unnecessary to decide whether Proposition 36 treatment is ordinarily available to an eligible defendant who has failed a deferred entry of judgment.[4]

Defendant complains that he did not knowingly waive his rights under section 1210.1. The court was not required to obtain an express, personal waiver of any such statutory rights. (Cf. People v. Betts (2005) 34 Cal.4th 1039, 1056, fn. 11 [statutory right to a jury trial on venue "could be forfeited without a personal, express waiver" despite claimed ignorance of law].) Defendant's acceptance of the proposed plea bargain was an implicit relinquishment of any statutory rights under section 1210.1. (See People v. Hester (2000) 22 Cal.4th 290, 295.)

The Supreme Court "confirmed in People v. Hester (2000) 22 Cal.4th 290 . . . that 'defendants are estopped from complaining of sentences to which they agreed.' (Id., at p. 295.)" (People v. Buttram (2003) 30 Cal.4th 773, 776.) "Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.]" (People v. Hester, supra, 22 Cal.4th at p. 295.)

Defendant incorrectly insists that the trial court did not have fundamental jurisdiction to sentence him to state prison. "In its fundamental sense, 'jurisdiction' refers to a court's power over persons and subject matter. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 . . . .)" (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.) Failure to grant probation pursuant to section 1210.1 does not concern "the trial court's fundamental jurisdiction in the sense of personal jurisdiction, which is the authority of the court to proceed against a particular defendant in a criminal action (see, e.g., People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6 . . .)" (People v. Posey (2004) 32 Cal.4th 193, 208) or concern "the trial court's fundamental jurisdiction in the sense of subject matter jurisdiction, which is the authority of the court to consider and decide the criminal action itself (see, e.g., People v. Mower, supra, 28 Cal.4th at p. 474, fn. 6 . . .)." (Ibid.)

Despite certain factual distinctions between this case and People v. Chatmon, supra, 129 Cal.App.4th 771, defendant Davenport, like defendant Chatmon, received the benefit of avoiding a potentially harsher disposition and "dismissal of a charge that, were he convicted, would have disqualified him from treatment under Proposition 36. (Penal Code, § 1210.1, subd. (b)(2).)" (Id. at p. 773.) We reject defendant's efforts to better his plea bargain through the appellate process.

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

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PREMO, Acting P. J.

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BAMATTRE-MANOUKIAN, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Defendant obtained a certificate of probable cause on a different ground, namely that the court erred in denying his motion to withdraw his guilty plea. Once a defendant has properly obtained a certificate of probable cause, the defendant may raise on appeal cognizable issues other than those identified in the statement of grounds. (People v. Hoffard (1995) 10 Cal.4th 1170, 1176-1180.)

[3] We note that, under principles of contract law, a unilateral mistake of fact or law ordinarily is not a ground for rescission of a contract unless the other party knew of the mistake or caused the mistake or the enforcement of the contract would be unconscionable. (See Civ. Code, §§ 1565-1567, 1576-1578, 1689; Rest.2d Contracts (1981), §§ 151, 153, pp. 383-384, 394-399; Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 282; Gardner v. Watson (1915) 170 Cal. 570, 577.) However, we need not decide the role of contract law in ruling on a motion to withdraw a guilty plea based upon a unilateral mistake since defendant is not challenging the court's denial of his motion to withdraw his guilty plea.

[4] It appears that, under the plea agreement, defendant in effect received a deferred entry of judgment even though he did not actually meet the statutory requirements for the deferred entry of judgment program. Section 1000, subdivision (a)(1), requires that a defendant have "no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense."