P. v. Kitchen










Filed 3/27/17 P. v. Kitchen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

TONY LEE KITCHEN,

Defendant and Appellant.

C080893

(Super. Ct. No. CRF1460)




Defendant Tony Lee Kitchen pleaded no contest to domestic violence. (Pen. Code, § 273.5, subd. (a).)[1] As part of defendant’s plea agreement, the trial court postponed imposition of judgment to allow defendant to complete a residential rehabilitation treatment program. The trial court later found defendant failed to complete six months in a residential rehabilitation program and sentenced him to three years in state prison.
On appeal, defendant contends that imposition of sentence violated his plea agreement. We disagree and affirm the judgment.
BACKGROUND[2]
The People charged defendant with numerous offenses, including domestic violence. (§ 273.5, subd. (a).) Defendant pleaded no contest only to the domestic violence charge. As part of the negotiated plea, the People agreed “[j]udgement [sic] and sentencing [would] be continued to a date in the future so that [defendant] may participate in a residential rehabilitation treatment program of at least six (6) months in duration.”
Defendant agreed he would “only be allowed one (1) attempt at completing the residential rehabilitation program of at least six (6) months in duration.” Moreover, if he was “removed from the program for any reason prior to its completion or if [he] leave[s] the program for any reason prior to completion then [his] case will be scheduled for judgement [sic] and sentencing and [he] could receive up to four (4) years.”
The following terms also were read into the record: “[Defendant] would be waiving time for sentencing. He would be given an opportunity to successfully complete a residential treatment program of at least six months in length. The benefit to [defendant] will be that he would then be able to make an unusual case finding and be granted probation as he is [section] 1203 [subdivision] (e)(4) ineligible. If he is not successful, then he would simply be scheduled for judgment and sentencing, and he would be looking at one to four years in state prison.”
The trial court addressed defendant directly: “Do you understand that you are not eligible to get a grant of probation and you’ll be allowed one opportunity to earn that while -- if you complete a residential treatment program? [¶] . . . [¶] . . . Do you understand you get one chance at the program?” Defendant answered yes to both questions.
Shortly thereafter, defense counsel reported defendant was accepted into two programs and was awaiting space availability. Jordan Crossing Ministries (Jordan Crossing) advised the court that defendant entered its program on May 20, 2014. On November 7, 2014, Lifeline Recovery, a different program, wrote to the court that defendant had entered its program on August 18, 2014. Lifeline Recovery contacted the trial court again on November 18, 2014, to advise that defendant was ready to move out on his own.
Defendant appeared before the trial court in January 2015. At that hearing, a representative from the probation department advised the court that the Lifeline Recovery program was not a residential treatment program but rather, a sober-living facility. The People argued defendant did not complete six months in a single residential treatment program. Defendant argued he completed six months total, three months at Jordan Crossing and three months at Lifeline Recovery. That, he believed, satisfied the spirit of the plea agreement.
Rather than make an immediate decision, the trial court asked the probation department to provide an opinion about whether defendant had “earn[ed] an unusual case finding.” And whether defendant gave them “any reason to think that he would be successful in further drug treatment.” Judgment and sentencing was then set for March 9, 2015.
On March 9, 2015, the trial court granted defendant’s request for a continuance so he could file a statement in mitigation. The matter was continued to March 30, 2015.
On March 30, 2015, the People again argued defendant failed to comply with the terms of the plea agreement: “He was told to do a six-month residential program, not six months of residential program[s], picking and choosing and jumping from program to program. He was told to do a continuous six months’ residential program. He did three months.”
Defendant argued that when he wanted to leave Jordan Crossing and go to Lifeline Recovery, he spoke with his then attorney (Christopher Pallone) who “checked on both programs and said it’s -- they’re satisfactory. They’re -- they mirror each other. One is as good as the other. So he switched programs because of the religious overtones of the first one.” The trial court wanted more information about defendant’s contact with prior counsel regarding his decision to change programs. Accordingly, the matter was continued to April 6, 2015.
On April 6, 2015, Pallone testified that Jordan Crossing, the first program defendant entered, was not a certified residential treatment program but rather, “a sober-living environment.” He also testified that defendant contacted him and said he wanted to leave Jordan Crossing, that he had another program in mind. Pallone remembered telling defendant to call him back once defendant knew the new program was “acceptable to the court and the D.A.” According to Pallone, defendant never told him the new program was approved.
Defendant testified he was unhappy at Jordan Crossing and asked Pallone if he could move to one of two different facilities, one of which was Lifeline Recovery. According to defendant, Pallone spoke with the person in charge of intake at Lifeline Recovery, then essentially gave defendant permission to switch programs. Defendant further testified that Pallone told him Lifeline Recovery was considered a residential facility “throughout the county” even though it was not a licensed residential rehabilitation program. Defendant believed Pallone would notify the court of the switch. Defendant graduated from Lifeline Recovery on November 18, 2014.
After hearing argument from both parties, the trial court determined to give defendant another opportunity to complete a six-month residential rehabilitation treatment program “since we sent him to Jordan’s Crossing and Jordan’s Crossing was not approved.” “The recommendation is to send you to prison. I’ll give you a chance. By May 4th at 1:30 [p.m.], you need to have applied to programs and be accepted. . . . [The] People have made it clear that they’re opposing this opportunity. [¶] . . . [¶] . . . Again, it’s up to you, sir. Giving one final opportunity. I want a clear record in this matter.” Defendant was then remanded to jail with a no-bail order.
On May 4, 2015, the trial court released defendant on his own recognizance to interview at The Well program in Chico. He was remanded back into custody the following day until The Well program accepted him. Several days later, it was reported that defendant was trying instead to get into the Salvation Army program.
On June 22, 2015, defendant reported he was “unable to be accepted into [the] program at this time due to [his] broken arm.” The trial court ruled, over the People’s objection, that defendant had until the next court date to be accepted into a program or the court would proceed with sentencing.
On July 10, 2015, defendant was released from custody so that he could join the Lifeline Recovery program. Ten days later the People objected on the ground that the Lifeline Recovery program was not a residential rehabilitation facility, and thus it did not comply with the terms of the plea agreement. The People also argued this was not new information to defendant, they previously told him the program did not qualify. The matter was continued to August 10, 2015, so the original sentencing judge could hear the case.
On August 10, 2015, defendant failed to appear in court. On August 14, 2015, the court issued a felony arrest warrant for defendant’s failure to appear. On August 24, 2015, defendant was in custody. Days later, the court acknowledged a new criminal case was pending against defendant.
On October 19, 2015, defendant appeared for judgment and sentencing. Prior to pronouncing sentence, the trial court recounted its efforts to help defendant avoid a prison commitment: “I had all along considered the victim’s wishes . . . . I also considered at that point in time that the defendant had not committed a felony since ‘07, and the victim said that changed. Then there was the failure to appear that caused me, at that point in time, to re-assess my position concerning [defendant]. He failed to appear, and low [sic] and behold we have further evidence that he has again battered the victim.”
Defendant failed to complete six months in a residential rehabilitation program. The trial court thus found this was not an unusual case. Accordingly, defendant remained statutorily ineligible for probation and the court sentenced him to the middle term of three years in state prison.
DISCUSSION
On appeal, defendant contends the sentence imposed by the trial court violated the terms of his plea agreement. Specifically, he contends he made every effort to complete a residential rehabilitation program but “was unable to complete the program [because] the court remanded him into custody.” We are not persuaded.
“ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties . . . must abide by the terms of the agreement.’ ” (People v. Panizzon (1996) 13 Cal.4th 68, 80, quoting People v. Walker (1991) 54 Cal.3d 1013, 1024.) “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767.) A defendant must be held to his agreement. (In re Troglin (1975) 51 Cal.App.3d 434, 438.)
Defendant was statutorily ineligible to receive probation absent a showing of unusual circumstances. (§ 1203, subd. (e)(4).) The negotiated plea agreement provided defendant the opportunity to argue his were unusual circumstances by allowing him to enroll in and complete a six-month residential rehabilitation program. This, defendant failed to do.
Defendant spent three months at Jordan Crossing, a facility not approved by the court. Defendant spent the three months at Lifeline Recovery, which was not a licensed residential rehabilitation facility. His participation in these programs, separately or combined, failed to satisfy the term of his plea agreement requiring defendant “participate in a residential rehabilitation program of at least six (6) months in duration.” (Italics added.)
The trial court thus gave defendant another chance to complete six months in an approved, residential rehabilitation program. Defendant entered Lifeline Recovery on July 10, 2015. Defendant then failed to appear for a hearing on August 10, 2015, a warrant for his arrest was issued, and he was back in custody on August 24, 2015, with new charges of domestic violence pending against him. Having spent less than two months at Lifeline Recovery, he again failed to complete six months in a residential rehabilitation program. Thus, at sentencing, the court’s finding that defendant’s circumstances were not unusual did not violate the terms of the plea agreement.
DISPOSITION
The judgment is affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Nicholson, J.



/s/
Hull, J.



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[1] Undesignated statutory references are to the Penal Code.
[2] The facts underlying defendant’s conviction are not relevant to the issue raised on appeal. Accordingly, we omit them.