P. v. Tilson
Filed 8/8/07 P. v. Tilson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE COLLINS TILSON, Defendant and Appellant. | C052398 (Sup.Ct. No. CRF05434) |
Defendant Dwayne Collins Tilson pleaded no contest to transporting methamphetamine (Health & Saf. Code, 11379, subd. (a)) and reckless driving (Veh. Code, 23103, 23103.5).
The trial court sentenced him to the upper term of four years in prison.
On appeal, defendant contends the trial court did not have the authority to order him to register as a narcotics offender pursuant to Health and Safety Code section 11590. We agree and shall modify the judgment accordingly.
BACKGROUND
As there was no trial, the facts are taken from the probation report. On May 10, 2005, at about 4:00 a.m., a deputy sheriff found defendant asleep at the wheel on the drivers side of his 1989 Dodge Caravan. The engine was running and his foot was on the brake. The officer woke defendant up, and conducted a field sobriety test. Defendant was arrested after failing to perform the test.
During booking, officers found in defendants front pocket a baggie containing 3.5 grams of methamphetamine. Defendants blood alcohol level tested at .09 percent.
DISCUSSION
Defendant contends the trial court was not authorized to impose registration as a narcotics offender because convictions for transportation of narcotics are specifically exempted from the registration requirement of Health and Safety Code section 11590.
The following exchange took place during the plea colloquy. The court told defendant: Health and Safety Code 11590 requires that you register as a narcotics offender[.] You understand that? Defendant answered Yes sir. Defendant never objected to the registration requirement at sentencing or when his plea was taken.
Defendant requested a certificate of probable cause. He argued his attorney had ignored all of the facts and had promised defendant he would receive a drug program. The request did not raise the trial courts authority to require defendant to register as a narcotics offender. The trial court denied the request for certification.
Generally, a defendant who has entered a plea of guilty or no contest must obtain a certificate of probable cause from the trial court to appeal. (Pen. Code, 1237.5.) There is an exception, however, when the grounds for appeal arose after entry of the plea and do not affect the pleas validity.
(Cal. Rules of Court, rule 8.304(b)(4)(B).) Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea[.] (People v. Panizzon (1996) 13 Cal.4th 68, 76, italics in original (Panizzon).)
The California Supreme Court has explained that [a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.
[Citations.] The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, 1638.) (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).)
Defendant contends that registration as a narcotics offender was not part of the plea agreement. We agree. Defendants plea consisted of defendant pleading guilty to one count in exchange for the People dismissing the other counts, and not alleging his priors or strike. The plea agreement did not address defendants sentence, which was left to the trial courts discretion. While the trial court informed defendant that narcotics registration was a consequence of his plea, it was not part of the plea agreement.
A certificate of probable cause is not necessary to contest a sentence on appeal when the plea relates to the issue of guilt without specification of the penalty to be imposed. (Panizzon, supra, 13 Cal.4th at p. 78, italics in original.) Since narcotics registration is not part of the plea agreement, we may address the validity of this part of defendants sentence even though defendant did not obtain a certificate of probable cause.
Health and Safety Code section 11590, subdivision (a) provides in pertinent part: For persons convicted of an offense defined in Section 11379 or 11379.5, this subdivision shall not apply if the conviction was for transporting, offering to transport, or attempting to transport a controlled substance.
Defendant pleaded no contest to transporting methamphetamine. Section 11590s registration requirement does not apply to him, and the trial courts imposition of this requirement was an unauthorized sentence. Defendant did not forfeit this issue by failing to raise it to the trial court. An unauthorized sentence is subject to judicial correction whenever the error comes to the attention of the reviewing court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
The Attorney General contends that if the appeal is cognizable, we should remand the case to allow the trial court to clarify whether registration was a stipulated term of the plea agreement, and if not a term, whether the plea bargain is acceptable absent a registration requirement. We disagree. Registration was not a part of the plea agreement, and the record does not support the Peoples contention that it was important to the trial courts decision to accept the plea. Accordingly, we shall strike the registration requirement.
DISPOSITION
The judgment is modified to strike the narcotics registration requirement imposed pursuant to Health and Safety Code section 11590. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
MORRISON , J.
We concur:
BLEASE , Acting P.J.
CANTIL-SAKAUYE , J.
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