Filed 9/26/18 P. v. Ripley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.

Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant James Francis Ripley pled guilty to conspiracy to bring controlled substances into a correctional facility. (Pen. Code, §§ 182, subd. (a)(1); 4573, subd. (a).)[1] On appeal, defendant contends the trial court did not honor the terms of his plea agreement by failing to impose a county jail sentence concurrent to his existing state prison sentence. The People contend defendant’s appeal is barred because defendant did not obtain a certificate of probable cause pursuant to section 1237.5. We conclude defendant was not required to obtain a certificate of probable cause because his appeal does not attack the validity of his plea. We also agree the trial court did not honor the terms of the plea agreement, and remand for resentencing in accordance with this opinion.

PROCEDURAL AND FACTUAL BACKGROUND

The Madera County District Attorney’s Office filed a complaint alleging defendant conspired to bring controlled substances into a correctional facility. (§§ 182, subd. (a)(1); 4573, subd. (a).) At the time of the offense, defendant was serving a prison sentence with an expected release date of March 29, 2017.

Defendant pled guilty as charged, with the plea agreement he would receive a split sentence of one year in the county jail and one year of mandatory supervision in a drug treatment program, pursuant to section 1170, subdivision (h), if eligible for the split sentence. The plea agreement further provided, that if the court determined defendant was ineligible for the split sentence, he would receive the low term of two years in state prison. The parties further agreed defendant’s sentence would run concurrently to the prison sentence he was currently serving, if eligible. The court described this term of the plea agreement as follows:

“All right. So the best you could hope for on this is that on your entry of the plea here, that this time here would be concurrent with other time that you have. Okay? It may not be concurrent, and I understand your agreement to be you still want to do this even if it isn’t concurrent, but you’re not giving up the right to have it concurrent if you’re eligible for that.” (Italics added.)

At defendant’s initial sentencing hearing, the court concluded defendant’s prior strike convictions rendered him statutorily ineligible for a split sentence under section 1170, subdivision (h)(3). The People proposed modifying the plea agreement to include probation as a sentencing option, and all parties expressed agreement, as follows:

“[PROSECUTOR]: The other thing the Court might be able to do, if the Court was going to grant probation, the agreement was one-year custody, one year of inpatient program. If the Court did that, and did the one year first, while he’s already in custody, having it run concurrent basically the one year in custody will be while he’s also doing the time. When he gets out, probation—he would still be on probation, and then he will be doing the one year in-program patient treatment. So that might be able to cover what we really agreed on, but also overlap with what he’s currently doing.

“[DEFENSE COUNSEL]: That’s exactly what my client wants.

“THE COURT: All right, so in your conception it would be two years. One year in custody, and one year in a program, and that one year in custody would be concurrent with the term he’s already serving on the San Joaquin County case?

“[DEFENSE COUNSEL]: Yes.

“THE COURT: Ms. Thornton, is that what you just described?

“[PROSECUTOR]: Yes.” (Italics added.)

The court then addressed the overlap of defendant’s state prison sentence and subsequent term in county jail. The parties agreed defendant likely would not finish a concurrent one-year county jail sentence before finishing his current prison sentence, and would have to be transferred from state prison to county jail:

“[PROSECUTOR]: If that’s the case, if he’s released there, if he was still doing a year local, I’m guessing then Madera needs to put some kind of hold on him, so when he’s released there he’ll go to our local jail and finish out the year of custody here, and then it would be easier for him to report to probation.

“THE COURT: And because of his concurrent time, he gets concurrent time for the time he’s up in Tracy.[2] If that wouldn’t satisfy the whole year, then we’re talking about here.

“[PROSECUTOR]: I think he’ll still have a few months, if he got 50 percent time credits, he’ll still probably have a few months he’ll have to do local is my best guess.

“[DEFENSE COUNSEL]: That’s correct.” (Italics added.)

Sentencing was continued to allow the probation department to prepare new recommendations considering the court’s expressed intention to sentence defendant to probation. At the subsequent sentencing hearing, the court sentenced defendant to probation and ordered him to serve one year in county jail and spend one year in a drug treatment program. The court did not address whether the one-year county jail sentence was to be served consecutively or concurrently. Defense counsel requested the court award defendant presentence credit, stating:

“Well, my understanding is he is not entitled to presentence, but we are arguing that the sentencing was in progress, and so it would date back to that. And so the plea deal was concurrent, and so any time after sentencing, he would be entitled to that. But that’s our position, and we will submit to the court.” (Italics added.)

The court rejected defense counsel’s request, reasoning defendant is not legally entitled to presentence custody credits because he was serving a prison sentence on an unrelated case. However, the court did not refute defense counsel’s assertion that the one-year county jail sentence was to be served concurrently.

Approximately one month after sentencing, defense counsel added defendant’s case on calendar for “clarification on the judgment.” Defense counsel stated defendant discovered he has not been receiving postsentence custody credits against his county jail sentence. Defense counsel asserted the plea agreement stipulated defendant’s county jail sentence was to run concurrently to his state prison sentence. The court disagreed and stated defendant should not be receiving credits because the county jail sentence “would have to be necessarily consecutive as it would be served after the state prison term.”

DISCUSsion

1. Compliance with Section 1237.5.

The People assert the court should dismiss the appeal because defendant did not obtain a certificate of probable cause pursuant to section 1237.5. We conclude defendant’s appeal does not attack the validity of the plea, and therefore does not require a certificate of probable cause.

Section 1237.5 prohibits appealing a conviction following a plea of guilty or no contest unless a defendant obtains a certificate of probable cause from the trial court. California Rules of Court, rule 8.304(b)(4)(B) allows an exception to the section 1237.5 requirement if the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” An appeal challenging the sentence after a guilty or no contest plea is within this exception unless the appeal is “in substance a challenge to the validity of the plea[.]” (People v. Buttram (2003) 30 Cal.4th 773, 782.)

Here, defendant’s appeal seeks to enforce the terms of a negotiated plea. A certificate of probable cause is not required where “the grounds for [a defendant’s] appeal arise from the trial court’s failure to give effect to the terms of [the defendant’s] plea.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1220.) Defendant’s appeal does not attack the validity of the plea in any respect, and therefore does not require a certificate of probable cause.

2. Violation of the Plea Agreement

Defendant claims the trial court erred by failing to honor the terms of his plea agreement. We agree.

“Traditionally, courts have viewed plea agreements ‘using the paradigm of contract law. [Citations.]’ [Citation.] Analogizing to contract law, courts examining plea bargains ‘should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations.’ ” (People v. Knox (2004) 123 Cal.App.4th 1453, 1458.) Further, “plea agreements are interpreted according to the general rule ‘that ambiguities are construed in favor of the defendant. Focusing on the defendant’s reasonable understanding also reflects the proper constitutional focus on what induced the defendant to plead guilty.’ ” (People v. Toscano (2004) 124 Cal.App.4th 340, 345.)

Here, defendant’s original plea agreement limited the court’s sentencing discretion. The plea agreement specified the court must impose defendant’s new term of imprisonment concurrently, so long as the court was not legally required to impose it consecutively. The court made clear defendant was “not giving up the right to have it concurrent[,]” if eligible.

When the parties returned for defendant’s sentencing hearing and learned defendant was statutorily ineligible to receive a split sentence under section 1170, subdivision (h)(3), the parties modified the plea agreement to allow the court discretion to grant probation. The term of the plea agreement specifying defendant was to be sentenced concurrently, if eligible, was left untouched. The court expressly stated defendant would receive concurrent time, and would have to be transferred from state prison to the Madera County Jail if he did not finish the entirety of his concurrent county jail sentence. Further, when scheduling the next court date, the court expressed a preference for an earlier court date so as not to “delay time credits for Mr. Ripley unnecessarily.” The court’s conduct indicates the court believed defendant would begin receiving credit the day he was sentenced, consistent with the court imposing a concurrent county jail sentence.

The People argue the initial plea agreement did not promise defendant a concurrent term. This argument ignores critical language of the agreement, stated by the court on the record, that defendant will receive concurrent time, if eligible. The plea agreement did not give the court unfettered discretion to choose between a consecutive and a concurrent sentence. Rather, the plea agreement mandated the court impose a concurrent sentence if defendant was eligible.

Given the terms of the plea agreement, the court was required to impose a concurrent sentence, because defendant was legally eligible. Section 669 allows the court to run two terms of imprisonment concurrently or consecutively, and if neither is selected, the sentence defaults to a concurrent term. The People provide no authority that would have disqualified defendant from being sentenced to a concurrent term.

3. Remedy

Due process attaches to the implementation of a plea bargain and requires the state honor its promises. (People v. Mancheno (1982) 32 Cal.3d 855, 860 (Mancheno).) “The 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.” (Id. at pp. 860-861.) “Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.” (Id. at p. 861.)

We conclude specific enforcement of the plea is appropriate because the record establishes the parties’ expectation: defendant would receive a one-year concurrent county jail sentence, if he is eligible to be sentenced concurrently. Defendant was eligible to be sentenced concurrently, but the trial court imposed a consecutive sentence. Thus, defendant did not receive the benefit of his plea bargain as required by due process. Specific performance in this case will neither prejudice the parties nor constrain the court to a disposition it deems inappropriate. (Mancheno, supra, 32 Cal.3d at p. 861.) Defendant should therefore receive the benefit of his plea bargain, and we remand for resentencing consistent with the plea agreement.

DISPOSITION

The matter is remanded to the Madera County Superior Court to resentence defendant to a concurrent term in accordance with the terms of the plea agreement. In all other respects, the judgment is affirmed.