Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo, Michael L. Duffy, Judge, Super. Ct. No. F385844 & F361612
Barbara A. Landan, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ana R. Duarte, Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Robert Eugene Griswold appeals from the judgment entered following a plea of no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and his admission that he had served a prior prison term. (Pen. Code, § 667.5, subd. (a).) After he entered his plea, appellant was released on his own recognizance but failed to appear at his sentencing hearing. The trial court withdrew its approval of the plea agreement and sentenced him to state prison. Appellant contends, and the People agree, that we should remand the case to allow him an opportunity to withdraw his plea. Reversed.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS and PROCEDURAL HISTORY
Original Drug Possession Case (No. F361612)
Police officers observed appellant driving a car without a front license plate and made a traffic stop. Appellant told the officers that his driver's license had been suspended because he had not completed his DUI classes. He was detained and the officers recovered a baggie of methamphetamine and a hypodermic syringe from the interior of the car.
On November 30, 2004, appellant pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted having served a prior prison term (§ 667.5, subd. (a)) in exchange for three years' felony probation with a six-month "lid." Appellant waived his right to Proposition 36 drug treatment probation (Prop. 36) and the prosecution agreed to dismiss two misdemeanor charges. On December 17, 2004, the trial court suspended imposition of sentence and granted appellant probation. It imposed various terms and conditions, including that appellant serve 180 days in County jail.
Second Drug Possession Case (No. F385844)
On March 25, 2006, police officers arrested appellant at the Sea Garden Inn in Pismo Beach, after learning that he had an outstanding warrant. They conducted a probation search of his room and recovered drug paraphernalia and a usable amount of methamphetamine. They also found a black box belonging to appellant that contained syringes and spoons. As a result of his arrest, he was alleged to have violated probation in the original case (No. F361612).
On April 26, 2006, appellant pleaded no contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He admitted having served a prior prison term and that he had violated probation in Case No. F361612. Appellant entered the plea on the condition that he would receive Prop. 36 probation.
The trial court stated, "The agreement is that you'll be referred to Prop 36. If you successfully complete the Prop 36, both of these cases will be dismissed. If you fail in Prop 36, do you understand that you could be placed on probation and you could be sent to prison, and the maximum penalty if you were to be sent to prison would be up to, I believe, five years, eight months, well over five years. Five years, just for this case in and of itself, and in the other case you would have at least eight months if not 18 months. Do you understand that?"
Appellant indicated that he understood the terms, and the court accepted his plea. It released appellant on his own recognizance, ordered him to report to Drug and Alcohol Services on May 3, 2006, and to return to court on May 31 for sentencing.
Imposition of State Prison Sentence
Appellant complied with the court's order to report to Drug and Alcohol services on May 3, 2006. However, he did not appear at the May 31 sentencing hearing because he had been arrested for another offense on May 14 and was in custody in San Bernardino County. The trial court issued a bench warrant and ordered the sheriff to transfer him to San Luis Obispo County.
The probation department issued a report on May 31, 2006, which was filed on July 31, stating that appellant was ineligible for Prop. 36 probation and recommended that he be sentenced to state prison. At a probation eligibility hearing on July 31, the court and counsel reviewed the probation report and expressed some confusion as to whether appellant had participated in one or two separate courses of treatment. The trial court found that appellant was unamenable for Prop. 36, revoked probation in the original case (No. F361612) and denied probation in the second case (No. F385844). Defense counsel objected, stating that appellant must be allowed to withdraw his plea. Counsel argued that appellant entered into the plea because he was promised Prop. 36 probation.
The trial court responded, ". . . had [appellant] come back to court [after returning to San Luis Obispo County] and brought it to the court's attention that he couldn't participate because of being hauled off to another county, then I think you would be in a good position. But he did not come back to court. I think he's the one that violated the agreement and I'm not compelled to allow him to withdraw his plea. It was his failure to follow through that's resulting in this, not the court's violation of its commitment to him."
Defense counsel argued, "But that's not the basis for the withdrawal of the plea. You don't enter into a plea and then if you fail to come back to court, you lose it. If you warn the defendant, [if you] say, 'If you don't came back [to court] or you pick up a new offense, this deal is off,' but you didn't do that. It's not in here. He entered a plea for Proposition 36 and didn't get it. So he's entitled to withdraw his plea."
The trial court denied appellant's request to withdraw his plea. It imposed a state prison term of two years and four months, consisting of the low term of 16 months on the possession charge in the second case (No. F385844), plus a one-year prior prison term enhancement. It ordered the identical sentence for the original case (No. F361612), to run concurrently.
On August 4, 2006, appellant moved to recall the sentence and for reconsideration of his request to withdraw his plea pursuant to People v. Cruz (1988) 44 Cal.3d 1247.) His motion was denied. He filed a request for a certificate of probable cause, which was also denied. Appellant is nevertheless permitted to proceed with the appeal. (People v. Brown (2007) 147 Cal.App.4th 1213, 1220 [no certificate of probable cause required when appeal concerns the trial court's failure to give effect to terms of plea agreement].)
DISCUSSION
Proposition 36
"'Proposition 36 requires the court to grant probation with a drug treatment condition to any person convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation.'" (People v. Guzman (2003) 109 Cal.App.4th 341, 346.) "Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time." (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.) A defendant may twice violate a drug-related condition of probation without a revocation of probation. (§ 1210.1, subd. (f)(3)(B).) A defendant who violates a drug-related condition for a third time is no longer eligible for probation and may be incarcerated. (§ 1210.1, subd. (f)(3)(C); People v. Tanner (2005) 129 Cal.App.4th 223, 233.)
Appellant argues that the trial court erred by finding him unamenable for Prop. 36 probation and sentencing him to state prison. He also claims, and the People agree, that he should have been allowed to withdraw his plea. Appellant requests that we reverse the order revoking Prop. 36 probation or remand the case for a hearing to afford him an opportunity to withdraw his plea. The People's primary contention is that appellant is ineligible for Prop. 36 treatment because his failure to appear at the sentencing hearing constituted an implied refusal to accept treatment.
Withdrawal of Plea
Under section 1192.5, a defendant who pleads guilty pursuant to a plea bargain which is subsequently disapproved by the trial court shall be permitted to withdraw the plea. (People v. Cruz, supra, 44 Cal.3d at p. 1249.) A defendant's failure to appear will not justify holding him to his plea and imposing a greater sentence. (Id. at p. 1253.) Cruz established that "'[n]on-bargaining defendants who flee before trial are not summarily pronounced guilty and subjected to the maximum sentences upon their apprehension. Both classes of fleeing defendants[, those who plea-bargain and those who do not,] are equally subject to punishment under sections 1320 and 1320.5; both are entitled to trial upon request.'" (Ibid.) However, when the plea bargain contains a provision that a greater sentence may be imposed if the defendant fails to appear, such a provision is enforceable, and the provisions of section 1192.5 do not apply. (People v. Masloski (2001) 25 Cal.4th 1212, 1223-1224; People v. Vargas (1990) 223 Cal.App.3d 1107, 1112-1113.)
Section 1192.5 provides in part, "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, 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. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."
Here, the plea agreement was based on the condition that appellant would receive Prop. 36 probation. He relied upon that promise in entering his plea. Appellant's obligation to appear on May 31, 2006, was not part of the plea agreement, thus he did not violate its terms by failing to appear.
We also note that the trial court failed to inform appellant that, if it withdrew its approval of the plea at the time of sentencing, he would be allowed to withdraw his plea pursuant to section 1192.5. Because we conclude that appellant is entitled to withdraw his plea, we need not determine his eligibility for Prop. 36.
DISPOSITION
We reverse the judgment and remand with directions that appellant be permitted to withdraw his no contest plea and admission of the prior prison term allegation. If he withdraws his plea and admission, the original charges in the information shall be reinstated, and the trial court shall take further action as appropriate. If he chooses not to withdraw his plea, the instant judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.