Filed 11/29/18 P. v. Sumner CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID SCOTT SUMNER,
Defendant and Appellant.
|
F076277
(Super. Ct. No. F16906834)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Dennis A. Peterson and John N. Gallagher, Jr. (retired judge of the Fresno County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Judges.†
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant David Scott Sumner contends on appeal that the sentence imposed by the trial court violated his plea agreement. We affirm.
BACKGROUND
On November 13, 2016, defendant was stopped while driving a stolen all-terrain vehicle.
On November 15, 2016, defendant was charged with driving or taking a vehicle without permission (Veh. Code, § 10851; count 1) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 2).[1]
On November 16, 2016, defendant was released on pretrial supervision.
On January 5, 2017, the trial court revoked defendant’s pretrial supervision and issued a bench warrant for defendant after he failed to maintain contact with the probation department and his whereabouts could not be ascertained.
On May 14, 2017, defendant was placed in jail.
On May 16, 2017, defendant appeared in court.
On May 22, 2017, defendant pled no contest to driving or taking a vehicle without permission (Veh. Code, § 10851; count 1). Count 2 was dismissed in light of the plea. At the change of plea hearing, the following occurred:
“[DEFENSE COUNSEL]: Your Honor, [defendant] will be withdrawing his previously-entered plea of not guilty, entering a new and different plea of no contest to Count 1. The People’s offer is no initial state prison and release at the time of sentencing.
“[PROSECUTOR]: That’s correct.
“THE COURT: All right. Well, the Court would maintain the right to—at sentencing to, for example, refer the defendant for a 90-day diagnostic out of California Department of Corrections and Rehabilitation. That discretion of the Court can’t be stipulated away, so obviously this would be upon approval of the Court as far as release at time of sentencing.
“[PROSECUTOR]: So perhaps we could re-word that as the People would not be seeking additional time in custody past the sentencing date.
“THE COURT: Okay.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: If that’s what you mean by release at sentencing, that’s fine.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: So, [defendant], hearing the statement of the attorneys, this what you really want to do is enter a plea to this Count 1 charge, Vehicle Code Section 10851(a)? Looks like the terms of the plea agreement are no initial state prison. So is this what you really want to do? Is this what you really want to do is enter the plea? The reason I ask that is because once you enter the plea, it’s extremely difficult to reverse yourself and have the plea withdrawn. So once you make the decision, it’s pretty much a permanent decision.
“THE DEFENDANT: I want to go home, you know.
“THE COURT: Well, the question is: Do you want to enter the plea to the charge, which is Vehicle Code Section 10851, usually referred to as auto theft? Do you want to enter the plea?
“THE DEFENDANT: Yes. Yes. Yes. Yes.
“THE COURT: All right. And the Court’s in receipt of what we call felony advisement, waiver of rights and plea form, has your name set forth at the top, has your name [defendant] here, and case ending 6834; so you did go over the form with your attorney? [¶] … [¶]
“THE DEFENDANT: Yes. [¶] … [¶]
“THE COURT: Also, this plea could result—well, the plea agreement is for no initial state prison, meaning felony probation, but if you were placed on probation and then violated a term and condition of probation, you could be returned into custody and ordered to serve up to three years in custody; so you do understand that?
“THE DEFENDANT: Yes.”
The plea form to which the court referred states that defendant pled no contest to “[Vehicle Code section] 10851(a) DAO [district attorney’s offer]: NISP [no initial state prison] + release at sentencing.” The maximum sentence he could receive as a result of the plea was three years. Defendant agreed to be sentenced by another judge.
On June 15, 2017, defendant was released again.
On June 21, 2017, defendant failed to appear for sentencing. The trial court revoked defendant’s release status and issued a bench warrant.
On August 9, 2017, defendant was arrested.
On August 11, 2017, defendant appeared in court for sentencing before a different judge than the one who accepted his plea. The sentencing judge granted probation, but also imposed 365 days in county jail.
DISCUSSION
Defendant contends his reasonable understanding of the plea was that he would receive probation and be released at sentencing. He maintains that the trial court violated the plea agreement by imposing a sentence beyond what was bargained for—365 days in jail—without allowing him to withdraw his plea. The People respond that before defendant entered the plea, the court rejected the condition that he would be released at sentencing, and thus, imposition of a jail term did not violate the plea agreement.
I. Law
Generally, a plea bargain is a negotiated settlement between the defendant and the prosecutor, where both parties receive a reciprocal benefit, which is approved by the court. (People v. Segura (2008) 44 Cal.4th 921, 929-930 (Segura).) “A plea agreement ‘is a tripartite agreement which requires the consent of the defendant, the People and the court.’ ” (People v. Feyrer (2010) 48 Cal.4th 426, 436-437.) Only a prosecutor is authorized to negotiate a plea agreement, and a trial court may not substitute itself in the place of the prosecutor in the negotiation process or agree to a disposition over the objection of the prosecutor. (Segura, supra, at p. 930.) “ ‘Acceptance of the agreement binds the court and the parties to the agreement.’ ” (People v. Feyrer, supra, at p. 437.) “Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted according to general contract principles.” (Segura, supra, at p. 930.) “ ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
“ ‘[J]udicial approval is an essential condition precedent to any plea bargain worked out by the defense and the prosecution.’ [Citation.] The parties’ negotiated disposition is ineffective unless and until it is approved by the court. [Citation.] This principle is recognized in numerous statutes (e.g., §§ 1192.1, 1192.2, 1192.4), the most important of which is section 1192.5.” (People v. Stringham (1988) 206 Cal.App.3d 184, 194.)
II. Analysis
Here, the record of the plea hearing demonstrates that the court did not agree to release at sentencing as a term of the plea agreement. The court expressly stated it would retain discretion at sentencing. The court, however, agreed to accept the prosecutor’s modification of the term to mean the prosecutor would not seek additional custodial time at sentencing. The court stated that the only term of the plea agreement was “no initial state prison, meaning felony probation.” Defendant said he understood. Accordingly, the sentencing court was not bound by a term for release at sentencing. The only term was felony probation, often described as no initial state prison, which included the possibility of up to 365 days in jail. (§ 1203.1, subd. (a) [when a court grants probation, it may condition the grant on a period of jail custody]; § 19.2 [“In no case shall any person sentenced to confinement in a county or city jail … as a condition of probation upon conviction of either a felony or a misdemeanor … be committed for a period in excess of one year ….”].) The sentencing court sentenced defendant according to the plea agreement, retaining its discretion to condition probation on up to 365 days of jail time. As a result, defendant’s sentence did not violate the terms of the plea agreement.
DISPOSITION
The judgment is affirmed.
