P. v. Traver

 

 

 

 

 

 

 

 

 

 

 

Filed 7/3/13  P. v. Traver CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Trinity)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   RICHARD DONALD TRAVER II,                           Defendant and Appellant.

C072663   (Super. Ct. No. 12F0137)

 

 

 

 

            Pursuant to a plea agreement,
defendant Richard Donald Traver II pleaded no contest to one count of href="http://www.fearnotlaw.com/">second degree commercial burglary.  In exchange, the agreement provided, among
other things, that the remaining counts would be dismissed with a >Harveyhref="#_ftn1" name="_ftnref1" title="">[1] waiver; that defendant would receive felony
probation with up to one year in jail as a condition of probation, but if he
violated probation the trial court could sentence him up to a maximum of three
years in jail; and that at sentencing the trial court could withdraw approval
of the plea agreement, but if it did
so, defendant would be permitted to withdraw his plea. 

            At sentencing, the trial court found
defendant ineligible for probation, sentenced him to three years in county
jail, and denied defendant’s request to withdraw his plea. 

            Defendant now contends the trial
court violated the terms of his plea agreement. 
The People agree, and so do we. 
We will remand this matter to the trial court for further proceedings.

BACKGROUND

            Charged with four counts of second
degree commercial burglary and four counts of misdemeanor grand theft,
defendant entered into a plea agreement by which he agreed to plead no contest
to one count of second degree burglary (Pen. Code, § 459)href="#_ftn2" name="_ftnref2" title="">[2] in exchange for the dismissal of the
remaining counts with a Harvey waiver and other provisions set forth in a
written change of plea form. 

            The written change of plea form was
signed by defendant, defense counsel, the prosecutor and the trial court.  As relevant to this appeal, the agreement
bears defendant’s initials indicating his agreement with the following
paragraphs:  “2.  (a)  I
understand that the maximum sentence of imprisonment in county jail that I
could receive pursuant to § 1170(h) is 3 years”; and “3.  . . . [¶] I will receive felony probation
with up to one year in jail as a condition of probation.  If I later violate probation, the Court can
sentence me up to the maximum indicated in item[] 2, above.”  Under the heading “ADDITIONAL ADVISEMENTS,” defendant
indicated his agreement that “[a]t the time of sentencing, the sentencing judge
may withdraw approval of this plea.  If
the judge does so, I will be permitted to withdraw my plea.” 

            Before accepting defendant’s no
contest plea, the trial court asked defendant: 
“Do you understand, pursuant to this agreement, you will receive felony
probation with up to one year as a condition of probation?  If you violate that probation, you can be
sentenced to the maximum of three years?” 
In addition, the trial court asked defendant:  “Do you understand at the time of sentencing,
the sentencing judge may withdraw approval of this plea?  If that were to happen, you would be
permitted to withdraw the plea that you’re entering today?”  Defendant answered “yes” to those
questions. 

            The presentence probation report
recommended that the trial court deny probation, sentence defendant to two
years in county jail, suspend execution of one year of the jail sentence, and
place defendant on mandatory supervision for one year. 

            At the sentencing hearing, the
prosecutor urged the trial court to sentence defendant to three years in
jail.  Defendant asked to withdraw his
plea, noting that “when I took the plea agreement to do the probation thing, I
thought that that was going to be accepted and part of the deal.”  The prosecutor characterized defendant’s
request as a case of “buyer’s remorse,” and urged the trial court to deny
it.  The trial court described the plea
agreement as “crystal clear,” denied defendant’s request to withdraw his plea,
found him ineligible for probation, and sentenced him to three years in county
jail. 

DISCUSSION

            Defendant contends the trial court
violated the terms of his plea agreement.  The People agree. 

            “When a guilty plea is entered in
exchange for specified benefits such as the dismissal of other counts or an
agreed maximum punishment, both parties, including the state, must abide by the
terms of the agreement.”  (>People v. Walker (1991) 54 Cal.3d 1013,
1024 (Walker), overruled on other
grounds by People v. Villalobos
(2012) 54 Cal.4th 177, 183.)  Plea
agreements are interpreted in accordance with the rules of contract (>People v. Toscano (2004) 124 Cal.App.4th
340, 344) and “material terms of the agreement cannot be modified without the
parties’ consent.”  (People v. Martin (2010) 51 Cal.4th 75, 80.) 

            Due process applies both to the
procedure of accepting the plea and to implementation of the bargain
itself.  “[W]hen a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can
be said to be part of the inducement or consideration, such promise must be
fulfilled” (Santobello v. >New
York
(1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433]) and the punishment may not
significantly exceed that which the parties agreed upon.  (Walker,
supra, 54 Cal.3d at p. 1024.) 

            A violation of a plea bargain is not
subject to harmless error analysis and, even if it were, “ â€˜the concept of
harmless error only addresses whether the defendant is prejudiced by the
error.  However, in the context of a
broken plea agreement, there is more at stake than the liberty of the defendant
or the length of his term.  “At stake is
the honor of the government[,] public confidence in the fair administration of
justice, and the efficient administration of
justice . . . .” â€™ â€  (Walker,
supra, 54 Cal.3d at p. 1026.)

            Here, the parties agree that the
trial court’s imposition of sentence violated the express terms of defendant’s
plea agreement.  We agree with the
parties.  The plea agreement provided for
a grant of probation with up to one year in jail as a condition of probation,
but if defendant violated probation the trial court could sentence him up to a
maximum of three years in jail.  If the
trial court withdrew approval of the plea agreement, it was required to permit
defendant to withdraw his plea.  Those
provisions were elements of the consideration for defendant’s agreement to
enter his no contest plea.  The trial
court’s unilateral modification of those terms without defendant’s consent
violated defendant’s due process rights. 


DISPOSITION

            The judgment is reversed, and the
matter is remanded to the trial court for a new sentencing hearing, at which
the trial court shall comply with the plea agreement by



 

either sentencing
defendant in accordance with the terms of the plea agreement or permitting
defendant to withdraw his plea.

 

 

                                                                                                    MAURO              , Acting P. J.

 

 

We concur:

 

 

                       MURRAY                       , J.

 

 

                       DUARTE                        , J.