Filed 8/30/17 P. v. Zarate CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Mario Montoya Zarate was sentenced to serve seven years four months in state prison after he pleaded no contest to being a felon in possession of a firearm. The aggregate sentence consisted of a six-year term that had been previously imposed but suspended in a case in which defendant had been placed on probation, plus a consecutive term of 16 months associated with the felon-in-possession conviction.

On appeal, defendant contends the court violated his plea agreement, which he claims specified that his maximum punishment would be six years. The Attorney General argues that the six-year maximum sentence applied only to the more recent case involving the felon-in-possession conviction and that the agreement contemplated defendant receiving a separate and additional sentence for violating his probation in the earlier case. We agree with the Attorney General and shall affirm.

Factual and Procedural Background

In June 2010, the Sonoma County Superior Court sentenced defendant in case number SCR-579492 (case 579492) to serve six years for driving under the influence and causing great bodily injury (Pen. Code,[1] §§ 23153, subd. (b), 12022.7, subd. (a)). The court suspended execution of the sentence and placed defendant on probation for three years. In March 2013, the court modified and extended defendant’s probation to June 2, 2015, after defendant violated the terms of his probation a second time. At the time it extended defendant’s probation, the court warned defendant that it would place the suspended sentence into execution if he violated his probation again.

In February 2015, while defendant was on felony probation in case 579492, Santa Rosa police officers searched a storage unit to which defendant had a key. Inside the storage unit the officers found multiple firearms, numerous boxes of ammunition, and several magazine rounds, in addition to personal effects belonging to defendant.

In a five-count information filed in case number SCR-661749 (case 661749) on April 13, 2015, the Sonoma County District Attorney charged defendant with four counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and one count of unlawful possession of ammunition by a felon (§ 30305, subd. a)(1)). It was further alleged that defendant had suffered two prior strikes (§§ 667, subds. (b)–(j), 1170.12) and had served a prison term within the meaning of section 667.5, subdivision (b). Defendant’s conviction in case 579492 was one of his alleged strikes. At the time the information was filed, the trial court announced that defendant’s alleged violation of his probation in case 579492 would trail the new charges in case 661749.

In August 2015, defendant executed a plea agreement in case 661749. Defendant agreed to plead no contest to one count of possession of a firearm by a felon and admit the two prior strikes. The prosecutor agreed to dismiss all other counts as well as the prison prior allegation. The plea agreement listed the maximum statutory punishment for the felon-in-possession conviction as six years—double the upper term of three years for that offense because of the prior strikes. (See §§ 18, subd. (a), 667, subd. (e)(1), 29800, subd. (a)(1).) Paragraph 24 of the plea agreement stated, “I understand that if I am currently on probation for any other matter, this conviction will act as a violation of that probation and I could be given a separate and additional sentence in that case.” (Italics added.) Defendant initialed paragraph 24. Defendant and his attorney signed the plea form on August 28, 2015. On that same date, the prosecutor acknowledged by her signature that the information contained in the plea form reflected the position of the district attorney’s office “as to this case.” “This case” is identified in the plea agreement as case 661749. Nowhere in the plea agreement is there any reference to case 579492.

At the change of plea hearing in case 661749 on August 28, 2015, the court accepted defendant’s no contest plea to one count of possession of a firearm by a felon and his prior strike admissions. The prosecutor stated that the plea was “open” and that defendant’s maximum exposure was six years. The court clarified that the six-year exposure was “on this.” In reciting defendant’s maximum exposure, no reference was made to case 579492.[2] The court further noted that the open nature of the plea would permit defendant’s attorney to seek to dismiss the strikes and argue for a disposition of less than six years on the case. Defendant acknowledged that he had read the plea form in its entirety and understood the potential consequences of his plea. Pursuant to the plea agreement, the prosecutor agreed to dismiss the remaining counts and the prison prior allegation at the time of sentencing. Following entry of the plea, defendant filed a motion to dismiss, or strike, the prior strike offenses in case 661749 pursuant to People v. Romero (1996) 13 Cal.4th 497 (Romero).

At sentencing, the court revoked defendant’s probation in case 579492 in light of the conviction in case 661749. The court denied defendant’s Romero motion seeking to dismiss the prior strikes. The court then sentenced defendant to serve seven years four months in state prison. The sentence consisted of the execution of defendant’s prior six-year suspended sentence in case 579492 plus a consecutive term of 16 months in case 661749—one-third of the midterm of two years for the felon-in-possession conviction, doubled because of defendant’s prior strike. Defendant did not object.

Defendant timely appealed. In his notice of appeal, defendant checked the box indicating that he was appealing only his sentence or matters occurring after the plea that do not affect its validity. Nevertheless, he filled out the “Request for Certificate of Probable Cause” and set forth a number of objections, including that he was “[n]ot accurately informed about the terms of [his] Open Plea Bargain and the consequences of pleading guilty; the max sentence which could be imposed, [and] how [his] credits would be calculated.” Defendant further wrote that he received ineffective assistance of counsel and was “given false information” about his maximum exposure. He claimed he was under the impression his prior suspended sentence in case 579492 would run concurrently with any newly imposed sentence in case 661749. The trial court did not act upon the request for a certificate of probable cause.

Discussion

On appeal, defendant contends the trial court violated his due process rights and committed sentencing error by imposing a sentence above the six-year maximum sentence specified in the plea agreement. His appeal is premised upon the contention that the six-year maximum sentence agreed to as part of his plea bargain should be interpreted to apply to both case 579492 and case 661749. For reasons explained below, we do not agree with defendant’s interpretation of the plea agreement or with his contention that the court violated that agreement by imposing a sentence exceeding six years.

At the outset, we address the People’s contention that the appeal should be dismissed as a result of defendant’s failure to obtain a certificate of probable cause. A defendant who pleads guilty or no contest must secure a certificate of probable cause to pursue an appeal unless the appeal is based upon the denial of a motion to suppress or grounds that arose after entry of the plea that do not affect its validity. (See § 1237.5; Cal. Rules of Court, rule 8.304(b).) The People argue that defendant’s claim on appeal is, in substance, a challenge to the validity of his plea agreement. We disagree. Insofar as defendant claimed in his request for a certificate of probable cause—which was not acted upon—that he was not properly advised of the consequences of his plea or received ineffective assistance of counsel in connection with the plea, we would agree with the People that those contentions amount to a challenge to the validity of the plea. But those claims have not been raised on appeal. Instead, defendant contends the trial court violated his plea agreement. A certificate of probable cause is not required to appeal an alleged breach of the plea agreement at sentencing. (See People v. Rabanales (2008) 168 Cal.App.4th 494, 500–501.) Accordingly, defendant’s claim that the court violated his plea agreement at sentencing is properly before us. We emphasize, however, that defendant may not seek to reform or modify the plea agreement based on some claimed misunderstanding or misadvisement. Such a claim would effectively challenge the validity of the agreement. With that understanding of the scope of the appeal, we turn to the merits of defendant’s argument.

Plea agreements are contracts and are interpreted according to contract law principles. (People v. Toscano (2004) 124 Cal.App.4th 340, 345; People v. Knox (2004) 123 Cal.App.4th 1453, 1458.) “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.’ ” (People v. Knox, supra, at p. 1458.) “A contract is to be interpreted according to the law and usage of the place where it is to be performed . . . .” (Civ. Code, § 1646.) When the terms of a contract are plain and unambiguous, the parol evidence rule precludes the introduction of extrinsic evidence to modify or add to the terms of the agreement. (People v. Toscano, supra, at p. 345; Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1433; see also Civ. Code, § 1856, subd. (a).) “If 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.” (Civ. Code, § 1649.)

In this case, the terms of the plea were not ambiguous or unclear. The parties’ agreement plainly stated that defendant could serve up to six years in state prison as a result of the charges that he admitted or to which he pleaded no contest in case 661749. The agreement did not mention case 579492 or suggest that the six-year maximum would apply to both that case as well as case 661749. Nor at the time it took defendant’s plea did the court suggest that the six-year maximum applied to anything other than case 661749. Indeed, an express term of the change of plea form provided that defendant’s conviction in case 661749 would act as a violation of probation in any other matter in which he was currently serving probation, the consequence of which is that he could be “given a separate and additional sentence” in the probation matter. Thus, the parties’ agreement was clear that, in addition to having the power to impose a sentence of up to six years in case 661749, the court was authorized to place into execution a sentence in the case in which defendant was then currently on probation, case 579492. Under the circumstances, it is unnecessary to resort to extrinsic evidence to interpret the plain terms of the plea agreement.

Nevertheless, defendant contends the agreement should be interpreted by reference to “customary practice” and the context of the sentencing law. He argues that it is “customary” to recite a defendant’s entire sentencing exposure at the time a plea is entered, and he points out that all parties were “fully aware of the probation violation and the suspended six-year sentence hanging over appellant’s head.” Defendant cites no authority for the proposition that it is customary to include a defendant’s entire sentencing exposure across multiple cases in a plea agreement that resolves just one of those cases. But even if it that were considered the norm when there are separate criminal cases against a defendant, the plea agreement in this case clearly did not follow that custom. Further, there is no reason to believe defendant would rely upon a purported custom directly at odds with the plain terms of the parties’ agreement, which contained an acknowledgment that defendant could receive a sentence in any case in which he was then serving probation in addition to the sentence of up to six years that might be imposed in case 661749.

Defendant claims the acknowledgement that he could serve an additional sentence in a probationary matter was designed to cover the possibility of a probationary status that was not yet known at the time of the plea, as opposed to his probationary status in case 579492, which was known from the time the new case was filed in case 661749. Again, defendant cites no authority for this proposed interpretation, which is at odds with the plain language in the change of plea form.

Moreover, defendant does not necessarily support his interpretation by emphasizing that everyone knew about his probationary status in case 579492 at the time he entered his plea in case 661749. He presumably focuses upon this fact to suggest that the maximum six-year term was understood to encompass both cases. But the parties’ awareness of both cases at the time of the plea also supports an inference that the six-year maximum term applied only to case 661749, since no mention was made of case 579492. If, as defendant claims, everyone knew defendant had a six-year suspended sentence hanging over his head in case 579492, it only stands to reason that the parties would specifically identify that case and address its resolution in a negotiated plea that purported to set forth defendant’s entire sentencing exposure. Consequently, we are not persuaded that plea agreement should be interpreted in the manner defendant proposes.

Defendant also purports to rely upon extrinsic evidence to support his interpretation. Among other things, he claims that the prosecutor’s stated reason for opposing a continuance of the sentencing hearing reflects an understanding that defendant would not be sentenced to prison in case 579492. Specifically, the prosecutor was concerned that defendant could continue to accrue conduct credits in local custody that would not be available to him once he was sentenced to prison with two strikes. After a lengthy recitation of the law governing conduct credits as applied to different types of crimes, defendant claims that the prosecutor’s assumption would have been incorrect if it were understood that defendant was going to be sent to prison in case 579492, because appellant’s crimes in that case limited both presentence and post-commitment credits. Defendant also argues that the parties’ actions are inconsistent with an understanding that the court would place defendant’s suspended six-year sentence in case 579492 into execution, resulting in a consecutive sentence of one-third of the middle term (16 months) by operation of law in case 661749. First, he claims there would be no reason to set forth the triad of possible terms in the change of plea form in case 661749. Second, he contends there would have been little incentive for defense counsel to pursue a Romero motion if it were understood that the effect of dismissing a strike in case 661749 would be to reduce his sentence by only eight months instead of three years.

Because we have concluded that the plea agreement is not ambiguous, we may not resort to extrinsic evidence to contradict the plain terms of that agreement. (See Alling v. Universal Manufacturing Corp., supra, 5 Cal.App.4th at p. 1433.) However, even if the agreement were ambiguous or unclear, the extrinsic evidence offered by defendant does not compel us to adopt his interpretation. The claim that the prosecutor’s opposition to a continuance somehow demonstrated an understanding that defendant would not be sentenced to prison in case 579492 is convoluted and unconvincing. Further, it is not surprising that the change in plea form would, as a matter of course, set forth the triad of possible sentences or that defense counsel would pursue a Romero motion, even if that motion would have a modest impact on the overall sentence. A much more telling piece of extrinsic evidence is the fact that defense counsel offered no objection to the probation officer’s recommendation that defendant be sentenced to seven years four months in state prison. If, as defendant claims, everyone understood that his maximum exposure in both cases was six years, then his counsel surely would have objected that the recommended sentence of seven years four months was unauthorized and in violation of the plea bargain. The fact that defense counsel did not object says much more about the parties’ understanding of the plea agreement than a series of strained inferences drawn from actions that are susceptible to different interpretations.

For the reasons described above, we conclude the court did not violate the terms of defendant’s plea agreement. Because we reject defendant’s claim of error, he is not entitled to be resentenced or to have his presentence credits adjusted.

Disposition

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.

A147272