Filed 10/19/17 P. v. El Mir CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gary G. Haehnle, Judge. Sentence vacated and the case remanded with directions.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal arises from a plea bargain in which the parties agreed to an unauthorized sentence. When the fact the sentence was unauthorized was brought to the court's attention by the Department of Corrections and Rehabilitation (CDCR), the court imposed a lawful sentence. The appellant now contends he is entitled to specific performance of the bargain and is thus entitled to serve his sentence in prison rather than county jail, even though such sentence cannot be imposed by statute. As we will explain below the appellant is not entitled to specific performance because the courts have no authority to impose an illegal sentence. Accordingly, we will affirm the judgment, but remand the case to the trial court with directions to permit the appellant to withdraw his guilty plea if he wishes to do so.

PROCEDURAL BACKGROUND

In 2012, appellant, Adam El Mir, was convicted by a jury of several felony offenses. Appellant was sentenced to a 12-year term in local custody pursuant to Penal Code[1] section 1170, subdivision (h). While he was in custody for the previous offenses, appellant was charged with three counts of possession of alcohol in jail (§ 4573.8). The complaint also alleged appellant had suffered four prior prison convictions (§ 667.5, subd. (b)).

In October 2014, appellant pleaded guilty to one count. The agreement contemplated he would receive an eight-month consecutive sentence to be served in state prison.

In November 2014, the court resentenced appellant in the first case to a 12-year prison term with a consecutive eight-month prison term for the current offense. Subsequently, CDCR notified the court that the sentence was illegal. The court was advised the terms for the offenses in both cases must be served in local custody, not state prison. Thereafter the court again resentenced appellant to a 12-year eight-month sentence to be served in local custody.

Appellant obtained a certificate of probable cause (§ 1237.5) and this court deemed his notice of appeal to be constructively filed in a timely manner.[2]

DISCUSSION

Appellant contends the trial court's decision to again sentence him to serve his sentence in local custody deprived him of the benefits of his plea agreement and denied him due process. Appellant asks this court to order that he serve his 12-year eight-month sentence in state prison. The People concede the plea agreement for his current offense contemplated a state prison sentence. The People argue, however, that the court lacks the power to impose a prison sentence that is forbidden by statute. The People agree, however, that appellant should have the right to set aside his guilty plea if he wishes to do so. We agree with the People's analysis.

The Criminal Justice Realignment Act included section 1170, subdivision (h). That section mandates that sentences for certain low level felony offenses must now be served in local custody instead of state prison. Section 4573.8 is not one of the crimes listed as exceptions to local custody in section 1170, subdivision (h)(1)-(3), (5).

The parties agree that a defendant has the right to the benefits of a plea agreement. Where the agreement has been violated, "[t]he usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain." (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.) If the court cannot provide the defendant with the benefits of the plea bargain, the defendant will normally be allowed to withdraw the guilty plea. (People v. Pinon (1973) 35 Cal.App.3d 120, 125.)

A court lacks the power to enforce an unauthorized or illegal provision of a plea bargain. (People v. Refro (2004) 125 Cal.App.4th 223, 232-233.) Since there is no power in the court to approve an unlawful sentence, the court cannot provide a defendant with specific performance of an unlawful sentence. (In re Daniel M. Williams (2000) 83 Cal.App.4th 936, 945; People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.)

In this case, appellant was serving a lawfully imposed 12-year sentence in local custody when he committed the current offense. His plea bargain dealt with pleading guilty to one new count and receiving a consecutive eight-month sentence. The unusual wrinkle here is that appellant, who had four prior prison commitments, prefers prison to local custody. Thus, there is a line in the change of plea form that rather ambiguously refers to serving the term in state prison. One inference is the eight-month term would be served in prison, but apparently the parties thought the entire term would be served there and the judge resentenced appellant accordingly. The problem, however, is the sentences for the current offenses may not be served in prison under the circumstances of this case. Nor was there any lawful basis to change the pre-existing, valid commitment to local custody. In short, the sentence was unlawfully imposed and cannot stand. To the extent, the plea agreement called for an unlawful sentence, the trial court lacked the authority to approve it. (People v. Jackson (1981) 121 Cal.App.3d 862, 868-869.)

Appellant's due process rights have not been violated here. He is still subject to the original 12-year sentence in local custody. He has not yet begun to serve a sentence for the current offense, thus he will be adequately protected by allowing him to set aside his guilty plea if he wishes to do so.

DISPOSITION

The sentence imposed in SCD 242688 is vacated and the case is remanded to the trial court to allow appellant to withdraw his guilty plea if he wishes to do so. If the appellant withdraws his plea the court shall proceed accordingly to resolve the case. If the appellant does not wish to withdraw his guilty plea the court shall reinstate the 12‑year eight‑month sentence in local custody, subject to appropriate custody credits. In all other respects the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.