P. v. Florence

Filed 7/12/07 P. v. Florence 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge. (Retired judge of the Merced Sup. Ct., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed as modified.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Francis P. Florence appeals a suspended prison sentence of five years imposed upon the revocation and termination of his probation in PEF001397 and a three-year prison term imposed upon the revocation and termination of his probation in PEF005279. Defendant claims these prison sentences violate an amended plea agreement guaranteeing him a maximum prison sentence of two years. He contends he is entitled to specific enforcement of the amended plea agreement. Alternatively, he contends the trial court misunderstood the scope of its discretion and should have considered all sentencing options in these cases before it sentenced him to prison. Defendant also argues the trial court improperly imposed a second restitution fine in both cases.

I.

Factual and procedural background

This case comes to us following a long and difficult procedural history involving two separate cases. In case No. PEF001397, defendant was charged on July 7, 1998, with manufacturing methamphetamine in violation of Health and Safety Code section 11379.6, subdivision (a) (count 1), assault by means likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1) (count 2), and possession of marijuana in violation of Health and Safety Code section 11357, subdivision (b) (count 3). Defendants girlfriend was the victim of the assault, and she led police to evidence of methamphetamine manufacturing. Defendant pled guilty to all three charges on August 20, 1998. On count 1, the trial court sentenced defendant to state prison for the middle term of five years. The trial court also imposed a concurrent three-year prison sentence on count 2 and six days in jail on count 3. However, the court stated it would suspend execution of [counts 1 and 2] for the purpose of placing [defendant] on formal probation for a period of three years subject to certain conditions. In addition to three years of probation, the trial court imposed 180 days in jail to be served on weekends. The trial court warned defendant he would go to state prison for five years if he violated any of the conditions of his probation. In addition, the plea agreement provided defendant could be sentenced to the maximum custody term of 8 years 6 months if he violated the terms of his probation.

At a hearing held March 3, 1999 and pursuant to an agreed disposition, defendant admitted violating his probation. However, he was reinstated to probation under the same terms and conditions previously imposed, and the five-year prison sentence was once again suspended. During the hearing, the trial court again warned defendant he would be going to prison for five years if he violated the terms and conditions of his probation.

While he was still on probation in case No. PEF001397, defendant was charged on December 27, 2000, in case No. PEF005279, with inflicting corporal injury resulting in a traumatic condition on his live-in girlfriend in violation of Penal Code section 273.5, subdivision (a). The girlfriend told police defendant grabbed her around her throat and squeez[ed] it so hard she couldnt even scream. The same girlfriend was the victim of the assault admitted by defendant in count 2 of case No. PEF001397, and a prior strike was alleged in the new case based on defendants prior admission to this assault. In addition, as a result of this new cohabitant abuse case, defendant was once again charged with violating his probation in case No. PEF001397. Thereafter, these two cases proceeded on the same track, and hearings in both cases were generally held at the same time.

On September 21, 2001, the parties indicated to the court there was an agreed disposition involving case No. PEF001397 (the original manufacturing case) and case No. PEF005279 (the cohabitant abuse case). Defendant pled guilty to the cohabitant abuse charge, as well as the prior strike in case No. PEF005279. Defendant also admitted violating probation in the original manufacturing case (PEF001397). The agreement provided for probation to be denied and for defendant to serve the low term of two years doubled to four as a result of the alleged strike in the cohabitant abuse case. With respect to the original manufacturing case, the agreement called for the low term of three years in state prison on count 1 and the low term of two years on count 2. All three sentences imposed at this time were to be served concurrently to one another. There was also an agreement defendant would be released from custody on bond, and sentencing in both cases would be postponed.

Before defendant could be sentenced as agreed during the hearing on September 21, 2001, he filed a motion to withdraw his plea in the original manufacturing case (PEF001397). The motion to withdraw was filed on January 4, 2002, arguing defendants admission on September 21, 2001 of a strike in the cohabitant case, was not supported by the facts. Pursuant to a stipulation, involving both cases, the prior strike allegation was dismissed, and defendant was allowed on February 6, 2002, to withdraw and amend his guilty plea to the admission of a violation of his probation in the original manufacturing case (PEF001397) and to amend the plea agreement in the cohabitant abuse case (PEF005279). Defendants appeal seeks specific enforcement of this plea bargain.

Following the plea bargain involving both cases on February, 6, 2002, defendant continued to be released on bond. The record indicates sentencing hearings were scheduled in both cases but continued a number of times, and when his bail bond expired, the court allowed defendant to remain out of custody on his own recognizance without posting a new bond.

Defendant was not sentenced as a result of the February 6, 2002 plea bargain until January 31, 2003. At this time, the court granted defendant formal probation for a period of three years in the cohabitant abuse case subject to a number of terms and conditions, and the proceedings were suspended. As noted above, the prior strike allegation was dismissed. At the same time, the court allowed defendant to amend his guilty plea to a probation violation in the original manufacturing case because it was based on his guilty plea and admission of the prior strike offense that was dismissed. The court then reinstated probation in the original manufacturing case but extended it to expire on January 31, 2006. Although defendant subsequently incurred a number of probation violations in one or both cases, including a failure to complete a domestic violence program, probation was reinstated each time.

On March 29, 2005, defendants probation was revoked, a bench warrant was issued, and bail was set as a result of a failure to appear. Thereafter, defendants probation remained revoked and was then terminated at a final sentencing hearing on November 22, 2005. Prior to the final sentencing on November 22, 2005, the court held an evidentiary hearing on the probation violation allegations. Based on testimony presented at the evidentiary hearing, the court found defendant violated his probation despite numerous chances to comply . . . going back to 1998. However, because it believed substance abuse was the cause of defendants inability to comply with the terms of his probation, the court asked the probation department to investigate whether there were any options available other than state prison.

In pertinent part, the probation officers sentencing memorandum states as follows: The defendant has been on probation in Riverside County since August 20, 1998. He has had seven violations of probation and has recently been arrested for violating a restraining order to stay away from the victim in the current probation case. . . . [H]e has had two additional arrests for driving under the influence of alcohol or drugs. He has had an opportunity to address his substance abuse issues at the local level for the past seven years. He has chosen not to do so. . . . The defendant has exhausted his opportunities for treatment at the local level. . . . It is not in the best interest of the victim, the defendant or the public to continue the defendants grant of probation. The defendant is not amenable to probation services. Therefore, it is respectfully recommended that the defendants probation remain revoked and the suspended sentence of August 20, 1998 be executed.

At the final sentencing hearing on November 22, 2005, the trial court terminated probation in the original manufacturing case (PEF001397) and placed the previous suspended sentence of five years into full force and effect. In the cohabitant abuse case (PEF005279), the trial court terminated probation and imposed the middle term of three years to be served concurrent to the five-year sentence in the original manufacturing case (PEF001397). In terminating probation, the court noted the number of probation violations reported in the probation officers sentencing memorandum. In addition, based on a discussion in chambers and the probation officers sentencing memorandum, the court stated my hands are actually tied, it turns out . . . there was a suspended sentence placed over [defendants] head, and that was the five years. . . . []  . . . So once that happens, the next judges hands are tied . . . . I have no choice, sir. The only sentence I can give you is five years.

II.

Discussion

1. Prison sentences imposed in case Nos. PEF001397 and PEF005279

Defendant argues the trial court abused its discretion at the final sentencing hearing on November 22, 2005, when it terminated probation and imposed concurrent sentences of five years in prison in the original manufacturing case (PEF001397) and three years in prison in the cohabitant abuse case (PEF005279). Defendant believes the court was bound in both cases by the amended plea agreement dated February 6, 2002. He also believes this plea agreement guaranteed him two-year concurrent sentences in both cases. As a result, defendant requests a modification of his sentence.

A trial courts decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.) The trial court is presumed to have acted to achieve legitimate sentencing objectives unless the party attacking the sentence is able to overcome the presumption with a clear showing of abuse. (Id. at pp. 376-377.)

A consummated plea bargain is not a perpetual license to a defendant to violate his probation. The plea bargain does not insulate a defendant from the consequences of his future misconduct. (People v. Bookasta (1982) 136 Cal.App.3d 296, 299.) A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever. (People v. Jones (1982) 128 Cal.App.3d 253, 262.) If the court complied with the terms of the plea bargain at the initial sentencing with no agreement limiting its discretion as to future probation violations, the trial court is no longer bound by that plea bargain if it later finds a probation violation. (People v. Hopson (1993) 13 Cal.App.4th 1, 2.)

Although the record demonstrates there was a plea agreement on February 6, 2002 involving both cases, the record also shows there were separate dispositions and written agreements for each case. First, in the cohabitant abuse case (PEF005279), there was a written, amended plea agreement allowing defendant to withdraw his prior plea of September 21, 2001 to one count of cohabitant abuse and a prior strike. It appears the basis for this withdrawal was the prosecutors concession there was a lack of a factual basis to support the prior strike allegation, and defendant was therefore entitled to a dismissal of the strike and a reduction in the previously agreed maximum sentence of four years. This new agreement provided for a maximum two-year term in state prison if defendant appeared as required for sentencing, and a four-year prison term if defendant failed to appear for sentencing or violated the terms of his probation.^[1] Defendant obtained the benefit of this bargain. Rather than impose a prison term, the trial court granted defendant formal probation for a period of three years in this case at the next sentencing hearing on January 31, 2003. Following a subsequent probation violation, the trial court at the final sentencing hearing on November 22, 2005 imposed a total term in state prison of three years to be served concurrent to any sentence imposed in the original manufacturing case. Thus, the court complied with the plea agreement of February 6, 2002 by imposing a three-year prison term, which is less than the maximum four-year term for a probation violation allowed in the February 6, 2002 plea agreement.

Second, in the original manufacturing case (PEF001397), defendant executed an amended violation of probation advisement and waiver form, not an amended plea agreement. A handwritten notation on the form in a section entitled terms of agreed disposition reads as follows: ADMIT 2 yrs LID to run concurrent w/PEF005279. This amended violation of probation advisement and waiver form was executed to allow defendant to withdraw his admission of a probation violation in this case on September 21, 2001. This admission was based on defendants guilty plea to cohabitant abuse and a prior strike in the cohabitant abuse case. However, as noted above, the prior strike allegation was later dismissed. Because it was partially based on the existence of this prior strike offense, it appears the prosecutor agreed on February 6, 2002 to reduce the maximum three-year prison term allowed by the plea agreement of September 21, 2001 to a maximum two-year prison term. Unlike the written plea agreement executed at the same time in the cohabitant abuse case (PEF005279), there is nothing in the amended violation of probation advisement and waiver form in this case making any sentencing guarantees for any future probation violations. Defendant obtained the benefit of this bargain. Despite a subsequent admission to a probation violation, the trial court at the next sentencing on January 31, 2003, reinstated defendants probation in this case and did not elect to sentence him to the two-year maximum prison term based on the February 6, 2002 agreement.

Following the February 6, 2002 agreement and the January 31, 2003 reinstatement of probation, defendant incurred additional probation violations, and his probation was revoked for the last time on March 29, 2005. Therefore, on November 22, 2005, when the court terminated probation and executed the five-year suspended sentence previously imposed on August 20, 1998, it was not bound by the agreed disposition of February 6, 2002. Accordingly, defendant is not entitled to enforcement of the written plea agreement in the cohabitant abuse case from February 6, 2002, or the amended violation of probation advisement and waiver form in the original manufacturing case, also from February 6, 2002.

We must also reject defendants alternative argument that when the court executed the five-year suspended sentence on November 22, 2005, it was not required to do so and could have considered and selected any available sentencing option. Defendant believes the trial court was not bound to impose the five-year prison sentence because judgment had been suspended, and defendant was placed on probation with no prison time being imposed. In support of this argument, defendant cites a page of the hearing transcript from January 31, 2003, which states, in relevant part, as follows: In PEF001397, these proceedings will be suspended, pronouncement of judgment withheld. The defendant will be placed on formal felony probation on the terms and conditions he previously agreed to. He will be reinstated on those same conditions, modified as follows: [] . . . No additional custody time imposed in this case. . . .  (Emphasis added.)

Essentially, defendants argument is based on the holding of our Supreme Court in People v. Howard (1997) 16 Cal.4th 1081, 1084 (Howard). In Howard, the Supreme Court stated, in pertinent part, as follows: [I]f the trial court has suspended imposition of sentence, it ultimately may select any available sentencing option. However, if . . . the court actually imposes sentence but suspends its execution, and the defendant does not challenge the sentence on appeal, but instead commences a probation period reflecting acceptance of that sentence, then the court lacks the power, at the precommitment stage (see [Pen. Code,] 1170, subd. (d)), to reduce the imposed sentence once it revokes probation. (Ibid, italics omitted.)

In our view, defendants argument misinterprets the holding of Howard and ignores the transcript of the prior, initial sentencing hearing in the original manufacturing case (PEF001397) on August 20, 1998, when the five-year suspended prison sentence was actually imposed. After defendant pled guilty to all charges in this case on August 20, 1998, the trial court asked whether there was any legal cause why judgment should not now be pronounced? When defendant responded in the negative, the court stated in pertinent part as follows: I am going to order that in Count 1 that you be committed to state prison for the middle term of five years. However, I am going to suspend execution of that sentence for the purpose of placing you on formal probation for a period of three years on condition that you violate no law or ordinance; that you be remanded to the custody of the Sheriff of Riverside County for 180 days. (Emphasis added.) In other words, the court on August 20, 1998 did not in any way state it was suspending imposition of sentence. Rather, the court imposed the five-year suspended sentence and expressly stated it was suspending execution.

Following the imposition of the five-year suspended sentence on August 20, 1998, defendant was released on probation and apparently did not appeal the sentence. Pursuant to Howard, commencement of probation and failure to appeal indicates defendants acceptance of the five-year sentence. He effectively remained on probation as a result of various reinstatements following probation violations until the trial court revoked it for the last time on March 29, 2005, and terminated it as of November 22, 2005. Read as a whole, nothing in the minutes or transcript of the hearing on January 31, 2003 causes us to believe the trial court intended or had authority at this time to change the suspended five-year sentence previously imposed on August 20, 1998. Rather, the trial court merely reinstated probation on January 31, 2003.

Based on our Supreme Courts decision in Howard, supra, 16 Cal.4th at page 1084, we agree with the trial courts conclusion it was bound on November 22, 2005, by the previously imposed five-year suspended sentence in the original manufacturing case (PEF001397) and did not have discretion to impose a more lenient prison sentence, having rejected reinstatement of probation. As a result, we disagree with defendants contention the trial court misunderstood and therefore abused its discretion on November 22, 2005 in case No. PEF001397, when it terminated probation and executed the five-year suspended sentence imposed on August 20, 1998. In other words, we conclude there was no abuse of discretion or sentencing error.

2. Restitution fines imposed in case Nos. PF001397 and PF005279

Pursuant to Penal Code section 1202.4, subdivision (b), defendant contends the trial court imposed a restitution fine of $200 in PF001397 when it granted probation on August 20, 1998, and a restitution fine of $200 in PF005279 when it granted probation on January 31, 2003. When it sentenced him to prison on November 22, 2005, defendant argues the trial court improperly imposed a second restitution fine of $700 in PF001397, and a second restitution fine of $300 in PF005279. We agree.

[A] restitution fine survive[s] the revocation of probation. . . . Restitution fines are required in all cases in which a conviction is obtained. Furthermore, there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine [under Penal Code section 1202.4, subdivision (b)] is still conviction. (People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers).)

Here, the record supports defendants contention that the trial court imposed two separate restitution fines under Penal code section 1202.4, subdivision (b), in case Nos. PEF001397 and PEF005279. In each case, the trial court imposed a restitution fine when probation was granted. A new and different restitution fine was also imposed when the court revoked probation and sentenced defendant to prison on November 22, 2005. However, the restitution fines originally imposed when probation was granted remained in force despite the revocation of probation on November 22, 2005. (Chambers, supra, 65 Cal.App.4th at p. 823.) As a result, the second restitution fine imposed in each case on November 22, 2005, was unauthorized and must be stricken. (Ibid.) In addition, the corresponding parole fines imposed under Penal Code section 1202.45 in each case on November 22, 2005, must be the same amount as the restitution fines, so these must be reduced accordingly. (Pen. Code, 1202.45; People v. Smith (2001) 24 Cal.4th 849, 853.)

III.

Disposition

The judgments of November 22, 2005, are modified by striking the restitution fine of $700 imposed in PEF001397, and by striking the restitution fine of $300 imposed in PEF005279. The $200 restitution fine imposed when probation was granted on August 20, 1998, in PEF001397, as well as the $200 restitution fine imposed when probation was granted on January 31, 2003, in PEF005279, remain in force. As modified, the judgment is affirmed in all other respects. The trial court is directed to prepare amended abstracts of judgment reflecting these modifications and to forward a certified copy of each amended abstract to the Department of Corrections.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

KING

J.

MILLER

J.

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^[1] If we conclude defendant is not entitled to specific enforcement of the maximum two-year term, he argues in supplemental briefing that we should enforce this four-year term. (ASB 4.} However, because the record demonstrates defendant received the benefit of this plea bargain, this provision does not change our analysis or conclusion.