Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM024516 & CM025047
SCOTLAND, P.J.
Defendant Ahmad Rakeem Ali Hodges pled no contest to battery on a bus driver in case No. CM024516 and possessing a controlled substance (MDMA) for sale in case No. CM025047.
On appeal, he claims (1) both convictions must be reversed because the trial court failed to advise him of his right to withdraw his plea when the court chose not to honor the terms of his battery plea agreement (Pen. Code, § 1192.5; further section references are to the Penal Code unless otherwise specified), and (2) the abstract of judgment incorrectly reflects that the court imposed a drug program fee. We shall affirm the judgment and direct the trial court to correct the abstract.
FACTS
Defendant was originally charged with one count of battery against a bus driver in case No. CM024516. On the condition that he receive a “county lid,” i.e., “no immediate state prison” (NISP) upon his initial sentencing, he pled no contest to that charge and no contest to a trailing charge of misdemeanor resisting arrest.
While released on bail and prior to the sentencing hearing, defendant was charged with possessing MDMA for sale, possessing marijuana for sale, and misdemeanor battery in case No. CM025047. At a consolidated hearing and with the understanding that the possession of marijuana for sale and misdemeanor battery charges would be dismissed, he pled no contest to possessing MDMA for sale. He also agreed to waive his NISP agreement attached to the felony battery plea. Defendant understood that he faced a combined maximum sentence of three years and eight months for the felony battery and possession of MDMA for sale.
The trial court sentenced defendant to the middle term of two years for the felony battery conviction, plus a consecutive term of eight months for the possession of MDMA for sale conviction. It imposed various fines but, based on defendant’s inability to pay, declined to impose a drug program fee and assessments totaling $525. Defendant obtained a certificate of probable cause. (§ 1237.5.)
DISCUSSION
I
The trial court has discretion to disapprove a plea agreement and impose a greater sentence than agreed upon, but it must advise the defendant of his right to withdraw his plea in light of the change of sentence. (§ 1192.5.)
Section 1192.5 states in pertinent part: “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant . . . 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.”
According to defendant, his battery conviction must be reversed because the trial court failed to inform him of his right to withdraw his plea when it sentenced him to state prison rather than honoring the “county lid,” NISP agreement. He also contends that his conviction for possessing MDMA for sale must be reversed because his plea to that charge was not knowing and intelligent, given the court’s failure to advise him of his right to withdraw his battery plea.
The People counter that defendant waived his right to appeal under the terms of his negotiated plea agreement, which provided in relevant part: “I waive any direct appeal I may have, absent any appeal to sentencing error.”
“As a general proposition, a broad or general waiver, such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error . . . .’ [Citation.] If, however, the defendant agrees to a bargain which includes a specific or indicated sentence, and if that is the sentence actually imposed, the defendant’s waiver will foreclose appellate review of the sentence; any challenge to the sentence will be deemed a challenge to an integral component of the bargain. [Citations.] The waiver will not cover claims that the trial court imposed a sentence in excess of its fundamental jurisdiction or the terms of the bargain, but the waiver will not allow review of alleged error in the computation or imposition of the sentence . . . .” (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157-1158, italics added; see also People v. Panizzon (1996) 13 Cal.4th 68, 84-86; People v. Vargas (1993) 13 Cal.App.4th 1653, 1662-1663.)
Here, defendant entered into a negotiated plea agreement that contained a written waiver of his right to appeal, but not his right to appeal sentencing errors. He alleges, in effect, that the trial court erred in sentencing him to state prison because this contravened the terms of the NISP agreement and, before the court could do so, it had to give him the opportunity to withdraw his plea. Because such a contention challenges the alleged imposition of a sentence in excess of the terms of the plea agreement, it is not waived. Both the state and the defendant must abide by the terms of the plea agreement. (People v. Panizzon, supra, 13 Cal.4th at p. 80; People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Nevertheless, defendant’s contention is unavailing because it is based on an incorrect factual predicate.
His argument is premised on a mistaken belief that the trial court disapproved the “county lid,” NISP provision of the plea agreement when it imposed a two-year sentence for the felony battery. Defendant ignores that he knowingly, intelligently, and voluntarily waived the NISP agreement as part of a new plea agreement.
As stated previously, defendant pled no contest to possessing MDMA for sale in case No. CM025047, and agreed to waive his NISP agreement attached to the felony battery plea in exchange for the dismissal of the charges of possessing marijuana for sale and misdemeanor battery. Defendant’s plea form, which he signed and initialed, expressly reflects that his “plea waives his ‘county lid’ agreement in CM024516.” The plea form also states: “I understand that I may serve this maximum sentence as a result of my plea: three years in state prison” or “3 years 8 months when combined with CM024516.” Defendant declared that he had “read, understood, and initialed each item” on the plea form, “and everything on the form is true and correct.” Defense counsel recited the new plea agreement in open court, stating “the consequence of that plea is a waiver of the no immediate state prison agreement in CM024516 which was on for sentencing today.” Upon questioning from the trial judge, defendant affirmed that he had reviewed the plea form with his attorney and he understood that by pleading no contest, he was forfeiting the rights contained in the plea form.
Thus, the record reflects that defendant waived the NISP agreement contained in the battery plea agreement when he entered into a new plea agreement in case No. CM025047. He understood and accepted the terms of the new agreement, including the waiver of the prior NISP agreement, and agreed to imposition of a combined maximum sentence of three years and eight months for case Nos. CM024516 and CM025047. The court sentenced defendant to state prison for a total term of two years and eight months, which is less than the agreed-upon maximum.
Hence, the trial court’s failure to advise defendant of his right to withdraw his plea was of “no consequence” since the court sentenced him in accordance with the plea agreement. (People v. Masloski (2001) 25 Cal.4th 1212, 1223-1224.)
II
Defendant observes that based on his inability to pay, the trial court declined to impose a $525 drug program fee. Thus, he contends, the abstract of judgment must be amended because it incorrectly reflects that the court imposed the drug program fee. We agree.
Under the heading, “Lab Fee and Drug Program Fee,” the abstract of judgment contains specific boxes for a lab fee and a drug program fee. The box for the lab fee is checked, and the abstract correctly reflects the imposition of a $175 lab fee. The box for the drug program fee is not similarly checked. However, the lab fee is followed by an asterisk, which directs the reader to a paragraph explaining the composition of, and statutory basis for, the fee. This paragraph is followed by another paragraph, which commences with two asterisks and references a drug program fee of $525. The paragraph indicates that defendant must “[p]ay a $150.00 drug program fee” and various other penalty assessments for a total of $525.
The People correctly concede that the abstract of judgment is misleading because it inaccurately suggests the trial court imposed the drug program fee but simply neglected to check the appropriate box. Because there is no reason to provide a breakdown of a drug program fee that was not imposed, we shall direct the trial court to amend the abstract of judgment.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment by striking the paragraph commencing with two asterisks that refers to a $525 drug fee, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: MORRISON, J., BUTZ, J.