P. v. Strausbaugh

Filed 8/31/07 P. v. Strausbaugh CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego County, George W. Clarke, Yvonne E. Campos and Robert J. Trentacosta, Judges. Judgment in SCS200997 reversed and remanded with directions; judgment in SCD198252 affirmed.

In San Diego Superior Court case number SCS200997, Michael Timothy Strausbaugh pleaded guilty to receiving stolen property and entered into a written plea agreement with the prosecutor that he would be denied probation and sentenced to 365 days in county jail, to run concurrently with a two-year sentence imposed in a separate proceeding against him for first degree burglary (San Diego Sup. Ct. case no. SCD198252). At his sentencing hearing in the receiving stolen property case, a different judge placed Strausbaugh on summary probation for three years and imposed the stipulated jail time as a condition of probation. On appeal from the resulting judgment, Strausbaugh contends the court improperly departed from the terms of his plea bargain by changing the disposition for the offense from a misdemeanor disposition to a felony disposition without giving him the proper advisements or obtaining his personal consent. We agree that, under the circumstances, the court erred by deviating from the terms of his plea and reverse that judgment with directions set forth below. Based on Strausbaugh's abandonment of his appeal from the judgment in SCD198252, we affirm that judgment in its entirety.

PROCEDURAL BACKGROUND

In March 2006, Strausbaugh was charged with unlawful taking or driving a vehicle and receiving stolen property and several months later pleaded guilty to the latter count. The change of plea form provided that Strausbaugh was to be sentenced to 365 days in jail (to run concurrently with the two-year sentence imposed after he pleaded guilty to the first degree burglary), that probation was to be denied and that the remaining charge would be dismissed.

At the change of plea hearing in the receiving stolen property case, the court recited the charges and the terms of the plea agreement as outlined above, reviewed the change of plea form to ensure that Strausbaugh understood the nature of its contents, the constitutional rights he would give up by pleading guilty and the maximum penalties that could be imposed for the offense. With defense counsel's concurrence, Strausbaugh entered the guilty plea, admitted to the facts supporting the charge and waived his right to be sentenced by the judge who accepted the plea. The court accepted the plea as "knowing, intelligent, and voluntary."

At the sentencing hearing, which was presided over by a different judge, the court reiterated the terms of the plea agreement, including the denial of probation, and indicated that it was prepared to impose sentence in accordance therewith. At that point, the deputy district attorney expressed a concern that if the court did not order probation, it might not retain jurisdiction to impose a victim restitution order. Although the concern was without legal basis (Cal. Const., art. I,  28, subd. (b); Pen. Code,  1202.4, subd. (f), 1202.46 (all statutory references are to the Penal Code)), in an abundance of caution, the court placed Strausbaugh on summary probation, with the acquiescence of defense counsel.

Strausbaugh filed notices of appeal in both the first degree burglary case and the receiving stolen property case and, at his request, the two appeals were consolidated. Strausbaugh's appellate briefs, however, raise no issue relating to the first degree burglary judgment and thus we conclude that he has abandoned the appeal as to that judgment.

DISCUSSION

Strausbaugh pleaded guilty to receiving stolen property, a "wobbler" offense. ( 17, subd. (b); 496, subd. (d); People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 360, fn. 17.) He argues that although the parties stipulated to a misdemeanor disposition (365 days in jail and a denial of probation), the sentencing court's imposition of summary probation rendered the offense a felony in contravention of the plea bargain. The Attorney General argues that Strausbaugh cannot pursue an appeal from the judgment because he failed to obtain a certificate of probable cause and that he has waived or forfeited the issue on appeal by failing to raise an objection in the proceedings below.

1. General Principles

A defendant who pleads guilty to a criminal offense waives various constitutional rights, including the right to a jury trial, the right against self-incrimination and the right to confront the witnesses against him. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Before the trial court accepts a plea of guilt, it must advise the defendant of the rights being waived thereby, as well as the direct consequences of the plea, and obtain his knowing and intelligent waiver of those rights. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244; People v. Walker (1991) 54 Cal.3d 1013, 1022.)

Once the court accepts a negotiated plea agreement, it becomes "in essence[] a contract between the defendant and the prosecutor to which the court consents to be bound." (People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1337, quoting People v. Ames (1989) 213 Cal.App.3d 1214, 1217; see People v. Shelton (2006) 37 Cal.4th 759, 767.) At that time, the terms of the agreement become fixed and the parties "are entitled to the benefits for which they have bargained." (People v. Daugherty (1981) 123 Cal.App.3d 314, 321.) The parties must abide by the terms of the agreement and the court cannot thereafter impose a punishment that "significantly exceeds" that to which the parties have agreed. (People v. Walker, supra, 54 Cal.3d at p. 1024.)

However, the court may withdraw its initial approval of the plea at the time of sentencing. ( 1192.5; People v. Jackson (1980) 103 Cal.App.3d 635, 638.) If it does so, the court must reject the plea agreement and inform the defendant that he has the right to withdraw his plea; it cannot merely alter the terms of the agreement by imposing punishment significantly greater than that originally bargained for. ( 1192.5; People v. Walker, supra, 54 Cal.3d at p. 1026; People v. Superior Court (Gifford), supra, 53 Cal.App.4th at p. 1337.)

2. Certificate of Probable Cause

A defendant is generally precluded from appealing a judgment of conviction arising out of his plea of guilt unless he has applied to the trial court for and received a certificate of probable cause permitting such an appeal. ( 1237.5.) Although the certificate requirement is strictly applied (People v. Mendez (1999) 19 Cal.4th 1084, 1097), a defendant is permitted to appeal following a guilty plea without the need for a certificate of probable cause to raise issues relating to (1) the validity of a search and seizure and (2) "proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Shelton, supra, 37 Cal.4th at p. 766, quoting People v. Buttram (2003) 30 Cal.4th 773, 780; see also Cal. Rules of Court, rule 8.304(b)(4)(B) [requiring a certificate of probable cause unless the notice of appeal "is based on . . . [g]rounds that arose after entry of the plea and do not affect the plea's validity"].)

Here, the Attorney General moves to dismiss Strausbaugh's appeal on the ground that he did not obtain a certificate of probable cause. ( 1237.5; Cal. Rules of Court, rule 8.304(b).) Specifically, the motion argues that Strausbaugh's appellate challenge to the trial court's imposition of summary probation is an attack on that court's authority to act in accordance with the "final terms of the negotiated plea bargain" and thus is a challenge to the validity of the plea.

The premise of the Attorney General's argument is that Strausbaugh agreed to the imposition of summary probation at the sentencing hearing, making that a term of the plea agreement. This premise is unsubstantiated. At the change of plea hearing, the parties expressly agreed that probation was to be denied. Although defense counsel acquiesced when the court subsequently imposed summary probation at the sentencing hearing, this did not constitute an agreement by Strausbaugh to a modification of the original plea agreement because the court failed to give Strausbaugh the standard admonitions, or inquire whether Strausbaugh was knowingly and intelligently agreeing to a modification of the initial agreement, as required as a condition to the entry of a valid guilty plea.

Strausbaugh is not challenging the validity of the guilty plea, but instead the sentencing court's implementation of the plea agreement. (People v. Lloyd (1998) 17 Cal.4th 658, 665 [concluding that an appeal of a sentence challenges the validity of the plea if the sentence was part of a plea bargain and that otherwise a certificate of probable cause is not required].) Accordingly, he was not required to obtain a certificate of probable cause before raising a challenge to the court's imposition of summary probation. (Ibid.;  1237.5.) We therefore deny the Attorney General's motion to dismiss.

3. Waiver/Forfeiture

The Attorney General also argues that Strausbaugh has waived or forfeited any argument that the sentencing court improperly altered the terms of his plea agreement without his personal consent because he failed to raise such an objection at the sentencing hearing. This argument is not well taken. ( 1018; People v. Walker, supra, 54 Cal.3d 1013 at pp. 1024-1026, 1030 [holding that when a sentencing court imposes terms significantly beyond those of the negotiated plea agreement and fails to admonish the defendant of his statutory right to withdraw his plea, "the error is not waived by acquiescence and may not be deemed harmless"]; see also People v. Johnson (1974) 10 Cal.3d 868, 872 [holding that a defendant does not waive his statutory right to change his plea in the face of the sentencing court's decision not to implement the terms of the plea agreement, where the court failed to advise him of that right at the sentencing hearing].) Because the sentencing court did not advise Strausbaugh of his right to withdraw his plea as a result of its decision to impose summary probation, his failure to raise an objection that that decision contravened his plea agreement does not preclude him from raising such a challenge on appeal.

4. Imposition of Summary Probation

As noted above, Strausbaugh contends that the court's imposition of summary probation essentially changed the charge to which he pleaded guilty from a misdemeanor to a felony and that, pursuant to the terms of the plea agreement, he pleaded to a misdemeanor. He correctly points out that if a court sentences a defendant who stands convicted of a wobbler offense to "a punishment other than imprisonment in the state prison," it is thereafter considered a misdemeanor for all purposes. ( 17, subd. (b)(1).) Thus, where sentence is imposed on a wobbler conviction, the classification of the conviction turns on the nature of the sentence imposed. (People v. Terry (1996) 47 Cal.App.4th 329, 331-332; People v. Battin (1978) 77 Cal.App.3d 635, 660-661, fn. 23, superseded by statute on other grounds as stated in People v. Conner (1983) 34 Cal.3d 141, 147.)

"A negotiated plea agreement is a form of contract and it is interpreted according to general contract principles," the goal of which is to give effect to the mutual intention of the parties thereto. (People v. Shelton, supra, 37 Cal.4th at p. 767.) Contractual language that is clear and explicit governs. (Ibid.) Here, the plea agreement provided that the court would deny Strausbaugh probation and sentence him to 365 days in jail, to run concurrently with the two-year sentence imposed in the first degree burglary case. As the Attorney General essentially concedes, the language of the agreement was unequivocal and reflected the parties' mutual intentions that Strausbaugh was to be sentenced to 365 days in jail and probation was to be denied. (People v. Superior Court (Gifford), supra, 53 Cal.App.4th at p. 1337.)

The court, however, did not sentence Strausbaugh in accordance with the plea agreement, but instead suspended the proceedings and imposed summary probation, with 365 days in jail as a condition of probation. (People v. Soto (1985) 166 Cal.App.3d 770, 774-775, and authorities cited therein; People v. Battin, supra, 77 Cal.App.3d at pp. 660-661, fn. 23; compare People v. Glee (2000) 82 Cal.App.4th 99, 105-106 [holding that where the sentencing court suspended the proceedings, granted summary probation, ordered the defendant to serve one year in county jail and directed that the probation terminate upon the completion of the jail term, it automatically rendered the crime a misdemeanor].) In doing so, the court violated the terms of the plea agreement, which required a denial of probation and imposition of a 365 day jail sentence. If the court had sentenced Strausbaugh in accordance with the agreed upon terms, the offense would have been rendered a misdemeanor for all purposes ( 17, subd. (b)(1)), irrespective of the facts that the change of plea form specified Strausbaugh was pleading guilty to a felony and that he confirmed his understanding that the guilty plea related to a felony at the change of plea hearing. Because the court deviated from the plea agreement without advising Strausbaugh of his right to withdraw the plea or obtaining his consent thereto, Strausbaugh is entitled to a remedy. (People v. Walker, supra, 54 Cal.3d at p. 1024.)

Where the state breaches the plea bargain, the remedy is either to require specific performance of the plea agreement or to permit defendant to withdraw the plea. (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.) The appropriate remedy will vary depending on the circumstances of each case and will turn on such factors as which party breached the agreement, whether the breach was intentional or inadvertent, whether circumstances changed between the entry of the plea and the sentencing and whether additional information would constrain the court to a disposition it considers inappropriate. (Ibid.)

In determining what relief is appropriate, the goal is to "redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge." (People v. Olea (1997) 59 Cal.App.4th 1289, 1298.) Withdrawal of the plea is more appropriate where specifically enforcing the bargain would curtail the trial court's sentencing discretion, whereas specific performance is the appropriate remedy if it will implement the reasonable expectations of the parties without binding the trial judge to a disposition the judge finds unsuitable under the circumstances. (People v. Mancheno, supra, 32 Cal.3d at p. 861.)

Strausbaugh argues that specific performance of the plea agreement is the appropriate remedy. Under the circumstances, we agree. There were no events between the change of plea hearing and the sentencing hearing that affected the court's approval of the plea agreement; in fact, at the sentencing hearing, the court reiterated the terms of the plea agreement and indicated its intent to impose sentence in accordance therewith. Only after the prosecutor expressed an erroneous concern about whether the court would retain jurisdiction over restitution did the court withdraw its approval of the plea agreement.

More importantly, the court's imposition of sentence in accordance with the terms of the plea agreement would have rendered the receiving stolen property offense a misdemeanor for all purposes. ( 17, subd. (b)(1).) Merely allowing Strausbaugh to withdraw his plea at this point (when he has already served his sentence) would not provide him with the benefit of the agreement the prosecutor made with him. By contrast, the specific enforcement of the agreement would "completely repair the harm caused by the breach." (People v. Toscano (2004) 124 Cal.App.4th 340, 345.)

Although specific enforcement is generally limited to "very special circumstances," we nonetheless conclude that the facts and considerations of fairness justify its application here. (See People v. Calloway (1981) 29 Cal.3d 666, 673.) Strausbaugh performed his obligations under the terms of the agreement and should receive his bargained-for benefit in exchange. (People v. Collins (1978) 21 Cal.3d 208, 216.)

DISPOSITION

The judgment in case number SCS200997is reversed and the matter remanded with directions that the trial court sentence Strausbaugh in accordance with the parties' plea agreement. The judgment in case number SCD198252 is affirmed.

McINTYRE, J.

I CONCUR:

HALLER, Acting P. J.

O'ROURKE, J., Dissenting

I respectfully dissent. While I agree with the majority that the judgment in San Diego Superior Court case number SCS200977 must be reversed, I disagree that specific performance is the proper remedy on remand. In People v. Mancheno (1982) 32 Cal.3d 855, the California Supreme Court explained that deciding the proper remedy for a breach of a plea bargain requires a case specific factual analysis: "The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of the case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases. [Citation.] [] 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. Courts find withdrawal of the plea to be the appropriate remedy when specifically enforcing the bargain would have limited the judge's sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. 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." (Mancheno, at pp. 860-861.) However, specific performance is not a favored remedy for violation of a plea bargain, nor is it required by the federal Constitution. (People v. Brown (2007) 147 Cal.App.4th 1213, 1224, citing People v. Renfro (2004) 125 Cal.App.4th 223, 233.)

Strausbaugh argues that specific performance will implement the parties' reasonable expectations here, since both the prosecutor and the sentencing court assertedly labored under a mistaken impression that the court was required to impose probation to retain jurisdiction for purposes of ascertaining restitution. Whether or not the underlying premise of Strausbaugh's contention is correct, I am hesitant to order specific enforcement in this case where at the time of Strausbaugh's sentencing, no restitution order was yet in place. The restitution order in my view constitutes sufficient "additional information or changed circumstances" (Mancheno, supra, 32 Cal.3d at p. 861) that the trial court should take into account upon remand when exercising its sentencing discretion. For this reason, I conclude specific performance is not an appropriate remedy. Rather, Strausbaugh should be permitted to withdraw his plea.

O'ROURKE, J.

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