P. v. Douglas

Filed 6/25/07 P. v. Douglas CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Rodney G. Forneret, Judge. Reversed and remanded.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Darrel Douglas challenges his possession and transportation of controlled substances convictions on the ground the trial court failed to sentence him in accordance with his negotiated plea agreement or to permit him to withdraw his no contest plea. We agree.

BACKGROUND AND PROCEDURAL HISTORY

Appellant was charged with possession of hydromorphone and hydrocodone and two counts of transportation of hydromorphone. Before the preliminary hearing, he entered into a negotiated plea agreement under which he pled no contest to possession of hydrocodone and one count of transportation of hydromorphone (Health & Safety Code, 11351 and 11352, subd. (a)) and admitted enhancement allegations under Penal Code section 667.5, subdivision (b) and Health & Safety Code section 11370.2, subdivision (a) in exchange for a term of four years.

Appellant did not return on the date set for sentencing. After he was captured, the court sentenced him to seven years in prison.

DISCUSSION

Appellant contends the court erred by failing to sentence him in accordance with the plea agreement. Alternatively, he argues he should have been permitted to withdraw his plea if the court was not going to comply with the plea agreement.

Appellant, defense counsel, and the prosecutor signed a written form entitled Guilty Plea in the Superior Court, that specified that appellant would plead to two counts and admit two enhancement allegations, for which the maximum possible penalty was 13 years. The form advised appellant of his rights and various potential consequences of the plea. Paragraph 14 of the form stated the court will sentence me as follows:  . . . 4 yrs SP. The form neither provided for a greater penalty if appellant did not return for sentencing, nor stated that the plea became an open plea if appellant did not return for sentencing.

At the change of plea hearing, the prosecutor advised appellant that If you show up for sentencing when you are supposed to, you are going to be sentenced to four years in the state prison. Appellant agreed that he understood that. The prosecutor did not tell appellant what would happen if he did not show up for sentencing as scheduled. Appellant pled no contest, and the court accepted the plea and set November 16, 2004 as the date for sentencing. The court then stated, I must advise you that, if you dont show up on the 16th, this is an open plea, and the court will sentence you to the maximum term, which is 13 years in state prison. Defense counsel added, Should he show up, he will be sentenced to count 2, and he will get four years. The court replied, If he does show up, then, count 4 the plea of count 4 will be vacated; is that correct? The prosecutor agreed it was correct, and the hearing ended. The court did not advise appellant under Penal Code section 1192.5.

Appellant did not return on the date set for sentencing. About 18 months later, he was apprehended on a bench warrant. Appellant asked the court to sentence him to the agreed four years, but did not ask to withdraw his plea. The court noted appellant had not appeared for sentencing, and said, At this time, this is an open plea. It sentenced him to three years on count 4, enhanced by a three-year term under Health & Safety Code section 11370.2, subdivision (c)^[1]and a concurrent one-year term under Penal Code section 667.5, subdivision (b), plus a one-year term on count 2, for a total of seven years.

On his notice of appeal, appellant checked the box indicating his appeal challenged the validity of the plea or admission. His statement in support of his request for a certificate of probable cause, however, indicated that the courts vacated the previous offer of 4 yrs and sentenced me to 7 yrs state prison without allowing me to withdraw my plea. The court denied the certificate of probable cause.

This court permitted appellant to amend his notice of appeal to state that the appeal was based on the sentence imposed after he entered his plea.

Respondent argues the appeal is barred because it goes to the heart of the negotiated plea agreement and appellant did not obtain a certificate of probable cause. However, appellant contends that the court did not abide by the plea agreement or permit him to withdraw his plea, as required by Penal Code section 1192.5. It is therefore a challenge to events occurring after the plea and not affecting the validity of the plea. No certificate of probable cause is required to raise such an issue. (Cal. Rules of Court, rule 30(b).)

Although appellant did not ask to withdraw his plea at the sentencing hearing or otherwise protest that the court was violating the plea agreement by sentencing him in excess of its terms, he forfeited neither his right to withdraw his plea nor his appellate claim of error. Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of [Penal Code] section 1192.5. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) Penal Code section 1192.5 requires the trial court to inform a defendant that the courts approval of the plea agreement is not binding and may be withdrawn, and that if the court withdraws its approval, the defendant has the right to withdraw the plea of guilty or no contest. (Ibid.) Because the trial court did not advise appellant in accordance with Penal Code section 1192.5, appellants failure to object to the seven-year sentence or seek to withdraw his no contest plea at the sentencing hearing did not constitute a forfeiture.

If a plea agreement is accepted by the prosecutor and approved by the court, the defendant cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. (Pen. Code, 1192.5) A plea agreement may provide that the court is permitted to impose a greater sentence if a defendant fails to appear for sentencing. (People v. Masloski (2001) 25 Cal.4th 1212, 1214.) However, such a term must be part of the plea agreement accepted by the defendant, not a judicially imposed afterthought. (People v. Casillas (1997) 60 Cal.App.4th 445, 452.)

If the court withdraws its approval of a plea agreement, it must permit the defendant to withdraw his or her plea unless, at the time the court originally accepts the plea, it obtains an informed waiver by the defendant of his or her right to withdraw the plea. (People v. Casillas, supra, 60 Cal.App.4th at p. 451; People v. Cruz (1988) 44 Cal.3d 1247, 1249, 1253-1254 & fn. 5.) Failure to appear for sentencing does not constitute a forfeiture of the right under Penal Code section 1192.5 to withdraw a plea. (People v. Cruz, supra, 44 Cal.3d at pp. 1249, 1253.)

A plea agreement is a contract between the defendant and the prosecutor to which the court agrees to be bound. (People v. Vargas (2001) 91 Cal.App.4th 506, 533.) Courts therefore interpret a plea agreement according to principles of contract law, looking to the specific language of the agreement to ascertain the express intent of the parties. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) Where the terms of a promise are ambiguous or uncertain, they must be interpreted in the sense in which the prosecutor and court believed, at the time of making them, that the defendant understood them. (People v. Shelton(2006) 37 Cal.4th 759, 767-768.)

At a minimum, the written plea form must be deemed to be a writing evidencing the terms of the plea agreement contract between the parties. It does not indicate that the agreement was to become an open plea if appellant did not appear at the sentencing hearing. Nor did it provide an alternate greater sentence to apply if appellant did not appear for sentencing. It simply provided for an agreed term of four years. It did not indicate appellant was entering an open plea with a maximum penalty of 13 years. The specification of 13 years in paragraph two was expressly an indication of the possible penalties for the charges and enhancements to be admitted. In contrast, paragraph 14 expressly provided that the court will sentence me as follows . . . . Construing the plea form as a whole, it is clear that the agreement was for a four-year term, not, as respondent contends, a four-year term if appellant appeared for sentencing, and an open plea with a maximum term of thirteen years if he did not.

The only ambiguity regarding the agreement stems from the prosecutors conditional reference to the agreed sentence while placing the plea agreement on the record: If you show up for sentencing when you are supposed to, you are going to be sentenced to four years in the state prison. However, the prosecutor did not state the consequence of appellants failure to show up for sentencing, such as, This becomes an open plea if you do not appear on the date set for sentencing. The court subsequently stated that it was an open plea, and that appellant would receive a sentence of 13 years if he did not appear for sentencing. However, this statement was made after appellant had changed his plea to no contest, and appellant never said he agreed with the courts assessment of the agreement. (Cf. People v. Masloski, supra, 25 Cal.4th at pp. 1214-1215 [before defendant pled guilty, court informed her that if she did not appear for sentencing the court would treat it as an open plea and could sentence her to a greater term, and defendant expressly agreed that this term was acceptable to her]; People v. Casillas, supra, 60 Cal.App.4th at pp. 447-448 [before defendant pled guilty, defense counsel and court discussed agreed disposition conditioned upon defendants appearance for sentencing and alternative disposition to be applied if defendant failed to appear; defendant expressly agreed that the stated terms reflected his understanding of the plea agreement].) While the combined effect of the courts open plea statement and the prosecutors if you show up for sentencing . . . statement has some tendency to suggest that the plea agreement provided that appellant would receive a greater sentence if he did not appear at the sentencing hearing, it is noteworthy that the written plea form made no reference to an alleged term of such serious consequence for appellant. Moreover, nothing to which appellant agreed, either in writing or verbally, specified the consequence for his failure to appear at sentencing. Nothing in the record demonstrates agreement by appellant that if he did not appear at the sentencing hearing, the court could impose, under the plea agreement, a term exceeding four years. This does not mean that the agreement permitted appellant to get away with absconding. Failure to appear subjected him to a charge of violating Penal Code section 1320.5. The court could also withdraw approval of the plea agreement, but in that event it was required to permit appellant to withdraw his plea. (Pen. Code, 1192.5.) Accordingly, despite the ambiguity introduced through the prosecutors statement, we conclude that the plea agreement did not include a provision permitting the court to sentence appellant to more than four years if he failed to appear at sentencing.

The appropriate remedy, and the one appellant seeks, is reversal and remand to permit him to withdraw his no contest plea. Given this disposition, we need not address appellants contention regarding errors on the abstract of judgment or respondents contention that the trial court violated Penal Code section 667.5, subdivision (b) by imposing a concurrent one-year term, rather than the statutorily mandated consecutive term. The trial court can correct or avoid repeating these errors upon remand.

DISPOSITION

The judgment is reversed and the cause remanded with directions to permit appellant to withdraw his plea of no contest.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] Because appellant admitted an allegation under Health and Safety Code section 11370.2, subdivision (a), the court erred in imposing an enhancement under subdivision (c) of the same section.