Filed 4/18/18 P. v. Patterson CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
BRIAN ANTHONY PATTERSON,
Defendant and Appellant.

A149505

(Del Norte County Super. Ct.
Nos. CRF15-9108, 16-9203)


The sole question presented is whether defendant Brian Anthony Patterson was given a sentence in excess of his plea bargain. The salient circumstances are these:
Defendant was charged in case No. 15-9108 with committing the felony of second degree burglary on February 16, 2014, and committing the misdemeanors of possessing drug paraphernalia, shoplifting, and petty theft in January and February 2015. He and the prosecution reached a negotiated disposition of that action as follows: defendant would plead guilty to the burglary; the misdemeanor charges would be dismissed; defendant would serve 180 in the county jail; and he would be on probation for three years. In May 2015, the trial court accepted the plea, suspended imposition of sentence, and admitted defendant to probation for three years upon specified conditions, one of which was that he serve 180 days in the county jail. The maximum punishment to which defendant could be subjected was three years, but the court left the sentence term open.
In September and December 2015, defendant admitted to violating the terms of probation but was re-admitted to probation upon new conditions, including that he serve another 120 days in the county jail.
A third petition to revoke defendant’s probation was pending in May 2016, when the court was advised that in April 2016 defendant had committed another burglary. That led to the commencement of case No. 16-9203, and another charge of second degree burglary.
On July 18, the date set for defendant’s preliminary examination, the court was advised that the prosecutor had “made an offer” that defense counsel wanted to discuss with defendant. With the probation violation “trailing,” court and both counsel agreed to meet the next day for “resolution or setting.”
The next day, defendant’s counsel advised the court of the proposed disposition reached by the parties: “Your Honor, in the Patterson matter the defendant would be pleading guilty, Your Honor, to Count 1 in 16-9203 [second degree burglary]. That’s going to constitute a sustained P.V. [probation violation] in 15-9108. [¶] The offer is a two year lid in 16-9203 with credit for time served. And that’s going to be a concurrent disposition and a terminal in 15-9108, as well, the probation case. That would be terminated out, the probation case.”
The trial court confirmed that this was defendant’s “understanding of the resolution.” The court explained that “[i]n case 15-9108 your exposure in that matter is three years but probably in both matters you would serve a terminal disposition of two years concurrent with whatever credit you have accrued.” Defendant acknowledged that he understood that, and executed a “Felony—Guilty Plea Declaration” recording the terms of the agreement. Defendant was advised of the constitutional rights he was surrendering, whereupon he entered a plea of guilty.
Sentencing occurred on August 25 with discussion of the probation officer’s recommendation of two years in the county jail in case No. 16-9203, with a three-year term in case No. 15-9108. Concerning these recommendations, the following colloquy occurred:
“THE COURT: As I recall we have a conviction for two violations, Penal Code 459 violation second degree burglary; is that correct?
“MR. FRENCH [defense counsel]: That’s correct.
“THE COURT: While on probation, 15-9108 with maximum exposure of three years. In case 16-9203, maximum exposure of two years pursuant to the negotiated plea to run concurrently. Is that correct?
“MR. FRENCH: Yes.
“MS. PADILLA [prosecutor]: Yes.”
The court then stated it had read the presentence investigation report, which recommended a maximum of three years to be served in the county jail. The district attorney, Ms. Padilla, explained that the idea was to recommend a three-year sentence in case No. 15-9108 to run concurrent to the “two-year lid” in case No. 16-9203. She stated that her colleague who had negotiated the deal contemplated defendant would receive a “maximum confinement” of two years on both cases. She further noted that “[i]n looking at it even if the court were to consider the three year CR F 15-9108 it looks like he has substantial credits.” Defense counsel then commented that it was his understanding “that it was a global with a two-year lid for both cases.” He confirmed the court’s description of the “bargain” as “Count 1 with a two year maximum term concurrent with the probation violation in case 15-9108 as a terminal global disposition with credit for time served,” but added “[a]nd 15-9108 was a two year lid.” The colloquy continued.
“THE COURT: It looks to the court with the custodial credit[s] in 15-9108, if approved, a minimum two years in the new case it still would be two years because he has so much credit?
“MR. FRENCH: Yes.
“THE COURT: In the 2015 case?
“MS. PADILLA: Correct.
“MR. FRENCH: Correct.
“THE COURT: Is that how you procured the two year max?
“MS. PADILLA: Yes.
“THE COURT: Is that how you—
“MR. FRENCH: Yes, Your Honor. That certainly played into it.
“THE COURT: All right. What I’m inclined to do, follow the recommendation of probation, sentence him to three years minus his credit. Then in 16-9203, sentence him to two years with whatever credits he’s accrued to run concurrent. Any argument?
“MR. FRENCH: No, Your Honor. Submit on that.
“MS. PADILLA: We would submit on that . . . . ”
Defendant was thereupon sentenced “to local prison . . . for the middle term of two years” in case No. 16-9203, and a concurrent three-year term in case No. 15-9108, with 561 days of custody and conduct credits—“over a year in credits.”
On this timely appeal from the judgment of conviction, defendant contends he must be permitted to withdraw his guilty plea in case No. 16-9203 because the plea agreement was violated at sentencing. He argues that he agreed to a sentence of no more than two years on each of the burglary counts, and thus, because a three-year sentence was imposed for the burglary in case No. 15-9108, the agreement was violated. As he tells us, “[t]he net effect . . . is that [he] will serve one year more in prison than contemplated by the plea bargain agreement.” Moreover, because his trial attorney did not protest this result, defendant presents himself as the victim of ineffective assistance of counsel.
The rules governing our review are clear: “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. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] 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.” [Citations.]’ [Citation.] ‘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. [Citations.]’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
Defendant’s attention is, not unnaturally, focused on the word “three,” as in the three-year sentence imposed in case No. 15-9108. However, the clearly dispositive words in all negotiations are variations of the two-year “lid,” that is, the maximum amount of actual time defendant would serve, and the fact the parties intended to reach a “global” disposition that would leave no loose ends.
This is how the bargain is described in the “Felony—Guilty Plea Declaration” recording the terms of the agreement: “BARGAIN AS FOLLOWS: [Defendant] would P.G. [plead guilty] to Count 1 with a 2 year maximum term, concurrent with the P.V. [probation violation] in case 15-9108 as a terminal global disposition with credit for time served.”
And again, prior to sentencing, at the hearing at which defendant changed his plea to guilty, the court summarized the terms: “In the new case, 16-9203 you would be pleading guilty to a violation of Penal Code section 459, second degree burglary. [¶] You will face a maximum of two years sentence in our local, county prison, although your exposure is three years. . . . [¶] . . . In case 15-9108 your exposure in that matter is three years but probably in both matters you would serve a terminal disposition of two years concurrent with whatever credit you have accrued. ” (Italics added.) The court then asked of defendant, “Is that your understanding?,” to which he replied, “Yes, Your Honor.” The court followed up with a question to defense counsel: “Mr. French, are you satisfied your client understood the content of this form?” The response was emphatic: “100 percent, Your Honor. [¶] . . . [¶] I went over this with him, Your Honor. I left it with him over night so he could keep it and review it some more.”
Finally, at the time of sentencing, the talk from court and counsel was of “a two-year lid . . . maximum confinement of two years” (from the prosecutor), “ a global with a two-year lid for both cases” (from defense counsel) and “a two year maximum term . . . as a terminal global disposition with credit for time served” (from the court). And, as already quoted, the prosecutor and defense counsel confirmed to the court that the matter of defendant’s accrued credits had figured in their negotiations and the calculations of the sentences for the two burglary counts. And indeed, as the court later noted, defendant had 561 days, “over a year in credits,” in the first case, No. 15-9108.
Using “ ‘objective manifestations of the parties’ intent’ ” (People v. Shelton, supra, 37 Cal.4th at p. 767), the record establishes that defendant got what he bargained for. Maximum actual confinement was two years, just as agreed. The sentence for case No. 15-9108 was set at three years, but with credit for time served it was less than two years, and in any event was concurrent to the two-year sentence in case No. 16-9203, so no time was added to the two years.
In light of this conclusion, there can be no question of ineffectiveness on the part of defendant’s trial counsel in failing to protest a nonexistent violation of the plea agreement.
The judgment of conviction is affirmed.
 




STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.






















People v. Patterson (A149505)