Opinion
C094839
04-03-2023
THE PEOPLE, Plaintiff and Respondent, v. SHAWN LAMONT GARNER, Defendant and Appellant.
NOT TO BE PUBLISHED
C094839 (Super. Ct. No. CRF2000345)
DUARTE, ACTING P. J.
Defendant Shawn Lamont Garner violated his conditional release agreement pending sentencing and was ultimately sentenced to the upper term on count 1, which was one of seven counts to which he had pleaded no contest. Although he had originally stipulated as part of his plea agreement that he would receive a suspended sentence that included the upper term as to count 1, at the time he was sentenced the stipulation was no longer in effect due to his violation of the conditional release agreement.
On appeal, defendant argues no substantial evidence supported the trial court's finding that he contacted the victim in violation of the release agreement, and that he is entitled to resentencing pursuant to amendments to Penal Code section 1170 that took effect while this appeal was pending. The Attorney General disagrees with these two claims, but agrees with defendant as to two additional sentencing issues.
Undesignated statutory references are to the Penal Code.
We conclude substantial evidence supports the trial court's finding, but that defendant is entitled to resentencing pursuant to the amended section 1170, because at the time of sentencing the trial court was no longer bound by the stipulated sentence, but did not exercise its discretion as required by the amended statute. We therefore remand for resentencing and otherwise affirm the judgment.
Because we are vacating defendant's sentence, the remaining two contentions are moot and we address them only briefly at the conclusion of our opinion.
FACTS AND PROCEEDINGS
On February 10, 2021, defendant pleaded no contest to two counts of making criminal threats against M.A. and her mother (§ 422), two counts of violating a protective order (§ 273.6, subd. (a)), and one count each of dissuading a witness (§ 136.1, subd. (a)(2)), making annoying and threatening electronic communications (§ 653m, subd. (a)), and destroying evidence (§ 135). (RT 14:15-17:23; CT 108-117) The plea agreement included a stipulated sentence of five years eight months in prison, which included the upper term of three years as to count 1, with execution of the sentence to be suspended and defendant placed on probation. Defendant also agreed to serve one year in county jail as a condition of probation. Because defendant already had more than one year of credit for time served, the parties also agreed to conditional release pending sentencing in an addendum to the plea agreement.
The terms of the addendum required defendant to, among other things, comply with the criminal protective order entered by the trial court, which prohibited contact with M.A. and her mother. The addendum also included a Cruz waiver. (See People v. Cruz (1988) 44 Cal.3d 1247.) The waiver listed 10 conditions and required defendant to agree that if he violated any of them, "the Court will no longer be bound [by] this plea bargain, or any conditions placed upon my plea," and informed defendant that the applicable burden of proof for "any willful violation of these terms" was by a preponderance of the evidence and that, if such violation were found, the court could sentence him up to the maximum sentence without triggering his right to withdraw his plea.
Two or three days later, M.A. received the following message through the Instagram electronic messaging system: "My brother hella much miss you." M.A. responded, "Who is your brother?" The account responded, "Please don't get us in no trouble." According to M.A., these messages matched defendant's style of speaking.
M.A. reported this contact to the District Attorney's Office. The prosecution then reported the contact to the trial court at a hearing in defendant's presence. The court declined to address the matter at that time, but reminded defendant not to have contact with M.A. or he could face a prison sentence instead of probation.
After this hearing, M.A. received a second series of messages, from a different Instagram account. The first message stated: "I want to f-u-c-k." M.A., recognizing this as something defendant would typically say, responded, "Okay, Shawn. LOL. I see you miss me." The account responded, "SMH [shaking my head]. Don't tell." M.A. responded, "What do you mean?" The account answered, "The DA said you told them we tried to talk." M.A. believed defendant sent these messages since she referred to him by name and he responded with information about this case and the prior messages that only he would know.
On the date set for sentencing, the prosecution alleged that defendant had contacted M.A. in violation of both the protective order and the conditional release addendum. The trial court held a hearing, at which M.A. testified to the contents and circumstances of the messages. She also revealed that defendant had previously violated a restraining order by contacting her using Instagram. M.A. stated that she did not fabricate any of these messages.
The trial court found M.A. credible and determined she was not fabricating the messages. The court reasoned that it would not be difficult for defendant to obtain or borrow a cell phone to send the messages. The court then found the preponderance of the evidence showed defendant had violated the terms of the conditional release addendum. After several delays to allow the parties to determine whether any additional exculpatory evidence existed, the court sentenced defendant to five years eight months in prison, as we later relate in more detail.
Defendant timely appealed, and the trial court granted a certificate of probable cause. After additional time to secure the augmented record, and multiple granted requests by the parties to continue the briefing schedule, the case was fully briefed on December 19, 2022, and assigned to this panel shortly thereafter.
DISCUSSION
I Violation of Conditional Release
Defendant argues the evidence introduced at the hearing was insufficient to support the trial court's finding that defendant violated the terms of the conditional release addendum by contacting M.A. Specifically, defendant contends the court's finding was based on mere speculation that defendant sent the electronic messages at issue and that defendant had the capability to send the electronic messages. We disagree.
"The question whether defendant violated the conditions of his release is one of fact, which we review under the substantial evidence test." (People v. Rabanales (2008) 168 Cal.App.4th 494, 509.) Substantial evidence review "requires us to affirm if the evidence, viewed in the light most favorable to the judgment, could have led any rational trier of fact to make such a finding." (People v. Kortesmaki (2007) 156 Cal.App.4th 922, 926.) This means we" 'presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Edwards (2013) 57 Cal.4th 658, 715.)" 'Deferential review is particularly necessary when, as here, the factual determination depends in part on judging a witness's credibility,' and we must uphold such a determination if it is supported by substantial evidence." (Rabanales, at p. 509.) "We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (Ibid.) "Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
The trial court's finding that defendant violated the terms of the conditional release addendum is sufficiently supported by M.A.'s testimony. First, M.A. testified that the messages matched defendant's style of speaking. Second, she called defendant by name during one of the exchanges, and defendant did not deny it was he, instead responding with information demonstrating knowledge of a court hearing at which defendant was one of a few individuals present. Further, defendant had sent such messages before, also in violation of a court order. We conclude this is sufficient evidence for a rational fact finder to find that defendant contacted M.A. in violation of the protective order and the conditional release addendum.
Defendant's contention that the prosecution failed to establish that defendant had access to Instagram misunderstands our standard of review. Given the content of the messages, it is reasonable to deduce that defendant had access to Instagram. Thus, substantial evidence supports the inference of access. The fact that the prosecution's investigator posited that more work needed to be done to tie defendant to these specific Instagram accounts is, at most, countervailing evidence that we disregard under the substantial evidence standard. In sum, because the trial court found M.A.'s testimony credible and her testimony was sufficient to lead a rational fact finder to find defendant sent the messages, the court's finding that defendant violated the terms of his conditional release agreement is supported by substantial evidence.
II
Defendant's Upper Term Sentence
Defendant also contends he should be resentenced pursuant to amendments to section 1170 that took effect while his appeal was pending and apply retroactively. The Attorney General agrees regarding retroactivity, but contends the amendments do not apply because the trial court did not exercise discretion in imposing an upper term sentence, due to the (original) stipulation to a sentence that included the upper term on count 1.
We conclude the trial court had reacquired full sentencing discretion prior to defendant's sentencing, due to his violation of the terms of the conditional release addendum under that addendum's clear language. Accordingly, we will remand for the court to exercise its discretion in accordance with the amended statute.
A. Additional Background
The plea agreement included a stipulated prison sentence of five years eight months, with execution of the sentence suspended, a three-year term of probation, and defendant serving one year in county jail as a condition of probation, and the sentence included the upper term of three years on count 1. The conditional release addendum to the agreement provided, in part: "If I violate any of the above conditions, I then agree that the Court will no longer be bound by this plea bargain, or any conditions placed upon my plea, and I will not have any right to withdraw my plea. [¶] [¶] I further understand and agree that if the Court finds any willful violation of these terms, the Court will be free to impose any greater sentence than expressly stated in this agreement, up to the maximum penalty for each offense and enhancement to which I am pleading guilty/no contest or admitting, and I will not have any right to withdraw my plea."
Defendant's counsel reviewed the terms of the plea agreement with defendant prior to the plea hearing. The prosecution and the trial court reviewed the terms during the hearing. The plea form incorrectly listed five years eight months as the "aggregate maximum time of imprisonment," but the court explained that the misdemeanor sentences could run consecutive to the felony sentences, which would lengthen the sentence, and ensured defendant understood that possibility. Defendant signed and initialed throughout the document, and his counsel assured the court that defendant understood the consequences of the plea. The court approved the plea agreement and then began explaining its terms to ensure defendant understood them.
The trial court, in explaining the provisions of the plea agreement and the conditional release, did not purport to recite the document, but repeatedly referred defendant to the written terms. At one point during this explanation, the court asked the prosecutor what the sanction would be if defendant violated the criminal protective order the court had issued. The prosecutor responded, "Then the [d]efendant would be facing five years, eight months, or would be agreeing to a stipulated five-year eight-month prison sentence." The court then reiterated: "So any contact, most importantly, with the victims would earn you five years, eight months. If you commit a new crime, if you do anything to violate the criminal protective order or the Cruz waiver, that's your sentence." The court then referred defendant again to the terms of the conditional release addendum.
At the next hearing, the trial court warned defendant not to commit any offenses or he "could face that extra time." At the following hearing, after the prosecution alleged defendant had violated the terms of the conditional release addendum and requested a hearing, the court recalled: "So it was explained to him that if he violated these terms, he gets the five years, eight months." Defendant's counsel agreed. From that point on, despite the written terms of the plea agreement, the court and the attorneys proceeded as if defendant had stipulated to serve five years eight months in prison for violating the terms of the conditional release addendum.
The trial court sentenced defendant to five years eight months in prison for violating the terms of the plea agreement, consisting of the three-year upper term for one count of criminal threats, a consecutive eight months (one-third the middle term) for the other count, and a consecutive two-year middle term for dissuading a witness. The court imposed a concurrent one-year sentence for each of the misdemeanors.
As noted by the parties' briefing, the trial court erred by sentencing defendant for five misdemeanors when he pleaded only to four. We further note that the court appears to have erred by sentencing defendant to two, one-year jail terms for annoying phone calls and destroying evidence, which each carry maximum sentences of six months in jail. (§§ 653m, subd. (a), 135, 19.) Because we are vacating defendant's sentence and remanding for a full resentencing, we do not reach these issues here.
Believing that it was bound by the parties' previous stipulation, the court declined to offer a statement of reasons for its sentencing choices, indicating only that it was accepting and adopting the "resolution" reached by the parties.
B. Analysis
Pointing to the trial court's oral explanation of the plea agreement, rather than the written terms of the agreement, the Attorney General contends defendant stipulated to his sentence for violating the conditional release addendum, meaning the court never exercised discretion in selecting an upper term sentence and the new procedures governing the exercise of such discretion do not apply. (See, e.g., People v. Mitchell (2022) 83 Cal.App.5th 1051, 1058-1059.) But the situation here is not at all analogous to Mitchell. The plain language of the conditional release addendum granted the trial court discretion to sentence defendant as it deemed appropriate, notwithstanding the original stipulation, if it found he violated the agreement. Because the court so found, it regained its sentencing discretion, and was required to exercise it accordingly.
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.)" '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.)'" (Ibid.) We may also consider" 'extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635-1656; Code Civ. Proc., §§ 1859- 1861, 1864; [citations].)'" (Ibid.) But, "interpretations of [a plea agreement] contract must be based on an objective standard in which [the defendant's] 'reasonable beliefs' control." (People v. Toscano (2004) 124 Cal.App.4th 340, 345; see In re Timothy N. (2013) 216 Cal.App.4th 725, 734.)
Here, the provisions of the conditional release addendum are unambiguous. Upon a violation of the terms by defendant, the trial court "will no longer be bound by this plea bargain, or any conditions placed upon my] plea." The sentencing agreement was part of the plea agreement. Thus, when the court found defendant had violated the conditional release addendum, it was no longer bound by the stipulated sentence, but instead reacquired discretion to sentence defendant as it saw fit, given all the circumstances of the case and the applicable statutory requirements.
We cannot depart from the terms of the plea agreement based on the prosecutor's oral representations and the trial court's incorrect oral explanations. This is not a situation where" 'a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible.'" (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 391; see Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37.) Rather, the court's conflation of the stipulated sentence with the provisions of the conditional release addendum was directly contrary to those provisions, which gave the court full discretion to select the sentence. When the language of a contract is not "reasonably susceptible" to the interpretation urged by a party, our inquiry ends. (Dore, at p. 393.)
It is clear the plea agreement did not include a stipulated sentence in the event defendant violated the terms of the conditional release addendum. Instead, as we have described, the agreement included a stipulated but suspended sentence at the outset, which was never imposed, as defendant had violated the requirements of the agreement's addendum by the time he was sentenced.
It is undisputed that the parties' original sentencing agreement was subject to an additional agreement/addendum that specifically stated the trial court was no longer bound by the plea agreement or any conditions therein upon a violation of its terms, and it is undisputed that such violation was found to have occurred. The court thereby retained its sentencing discretion and was required to exercise such discretion in making its sentencing choices, including as to the upper term sentence on count 1. (See § 1170, subd. (b); People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109 [amendments to § 1170 apply retroactively]; cf. People v. Mitchell, supra, 83 Cal.App.5th at pp. 1057-1059 [§ 1170 does not apply retroactively when trial court imposed stipulated sentence].) Because amended section 1170 applies retroactively, the court was required to justify its selection of the upper term. (§ 1170, subd. (b)(5) [requiring court to set forth "facts and reasons for choosing the sentence imposed"]; id., subd. (b)(2) [prohibiting imposition of upper term sentence unless justified by aggravating circumstances found in accordance with specified procedures]; see Zabelle, at pp. 1114-1115 [remanding for resentencing where four of eight aggravating circumstances were not found in compliance with new procedures]; see also People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [when sentencing court "is unaware of the scope of its discretionary powers," we must remand for resentencing "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion' "].) Because it did not do so, we must remand for resentencing.
III
Additional Sentencing Claims
The parties agree the trial court mistakenly sentenced defendant for two counts of destroying evidence, even though the accusatory pleading and plea agreement only contain one count. The parties also agree the court imposed an unauthorized $250 fee, purportedly pursuant to section 1463.27.
Because we are remanding for a full resentencing, we need not address these additional errors, but trust they will not be repeated on remand.
DISPOSITION
Defendant's sentence is vacated, and the matter is remanded for full resentencing in compliance with the current law. The judgment is otherwise affirmed.
We concur: J. Krause, J., Earl, J.