Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF134453, Thomas H. Cahraman, Judge.
Rod Pacheco, District Attorney, Elise J. Farrell and Rebecca M. Madrid, Deputy District Attorneys, for Plaintiff and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Gaut J.
The People appeal from an order after judgment denying a motion to vacate a judgment and an award of presentence custody credit for time served on a concurrent sentence. The People sought to vacate the imposition of a concurrent sentence for the present case (No. RIF134453), which was initiated as a misdemeanor citation and was pending at the time of a plea bargain in a separate case (No. RIF134172), in which the People agreed to concurrent terms for “all other matters.” Although the instant “matter” was initiated prior to the disposition of case No. RIF134172, prosecution of this case as a felony was delayed by the People until the sentence on case No. RIF 134172 was nearly complete. The trial court construed the plea agreement in case No. RIF134172 as referring to the instant case, the only other “matter” pending at the time of the plea agreement, in ordering imposition of concurrent terms.
Because the underlying issue on appeal is a challenge to a judgment imposing concurrent terms, which is not appealable by the People (Pen. Code, § 1238, subd. (a)(10)), the order after judgment on the People’s motion to vacate that judgment does not affect the substantial rights of the People (§ 1238, subd. (a)(5)), rendering it nonappealable, where the effect would be to render the plea agreement in case No. RIF134172 illusory. We dismiss the appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
On December 16, 2006, defendant John Anthony Morgan received a misdemeanor citation for petty theft (§§ 487/488), for shoplifting from a Target Store on that date. On January 9, 2007, a felony complaint was filed in case No. RIF134172, alleging that defendant committed the crime of petty theft with a prior (§ 666) on January 7, 2007, and alleging that he had previously been convicted of two felonies for which he had served prison terms (prison priors). (§ 667.5, subd. (b).) This complaint, case No. RIF134172, related to a separate shoplifting incident at a Target store.
On January 22, 2007, prior to the preliminary hearing in case No. RIF134172, the parties entered into a plea agreement by which defendant agreed to plead guilty to count 1, in return for which he would be sentenced to the middle term of two years, “c/c w/all other matters in any penal instit. All other chgs & enhancements dismissed.” The People joined in the plea, the court sentenced defendant immediately to the agreed upon prison term of two years, ordering the “[c]ase to run ConCurrent to Any[] Other Cases.”
On January 24, 2007, a felony complaint was filed in case No. RIF134453, relating to the December 16, 2006, shoplifting incident that was the subject of the misdemeanor citation. This complaint alleged a single count of petty theft with a prior (§ 666), and four prison priors. (§ 667.5, subd. (b).) Defendant, who had just been sentenced to state prison on case No. RIF134172, failed to appear at the scheduled arraignment on January 26, 2007, and a bench warrant was issued in the present case. Defendant was not informed of the bench warrant. Nearly a full year later, on December 31, 2007, a detainer was filed against defendant with respect to the pending charges in case No. RIF134453. Defendant was notified of the detainer and made a written request for disposition of the untried charges. (§ 1381.) On January 18, 2008, defendant was arraigned on the charges in case No. RIF134453.
On March 17, 2008, at a felony settlement conference, the parties discussed the possible disposition of case No. RIF134453. The defendant argued that this case was intended to run concurrent with the sentence on case No. RIF134172, based on the fact this case was an active case at the time of the plea in case No. RIF134172, which was ordered to run concurrent with “all other matters.” The People argued that case No. RIF134453 was not a part of the plea agreement in case No. RIF134172, and that the plea agreement in case No. RIF134172 referred only to matters that were before the court, and to which defendant pled guilty, that day. Further, the People argued that lack of any reference to a case number in the plea agreement meant that case No. RIF134453 was not a part of the agreement in case No. RIF134172.
The trial court disagreed with the People; it construed the language “all other matters” to include the misdemeanor citation that had been filed as the predecessor to case No. RIF134453. The court accepted defendant’s guilty plea to the charge of petty theft with a prior (§ 666) in case No. RIF134453. Defendant also admitted the four prison priors. The court then struck the prison priors, imposed a two-year sentence on case No. RIF134453, and ordered that the sentence run concurrent to case No. RIF134172. The defendant was given credit for two years previously served in case No. RIF134172. The People appealed.
On June 2, 2008, the People made a motion to vacate the judgment on two grounds: (1) giving defendant credit for two years time served violated the Penal Code section 2900.5 because the concurrent terms did not actually overlap; and (2) the sentence was unauthorized because a term cannot run concurrent to a previously completed term. On August 14, 2008, the court heard arguments, took the matter under submission, and subsequently denied the motion. On August 15, 2008, the People filed another notice of appeal.
DISCUSSION
The People filed two notices of appeal: the first from the order granting presentence credit against defendant’s sentence, and the second from the order denying the People’s motion to vacate that judgment. Because the People’s arguments were interrelated and depend on an assertion that the order imposing concurrent terms was unauthorized, we requested supplemental briefing to determine if the orders were appealable.
We conclude that the challenge to the imposition of concurrent terms is not appealable because (a) the court was required to do so under the terms of a plea agreement reached in case No. RIF134172 to which the People expressly agreed; (b) there is no applicable statute requiring imposition of consecutive terms such as would make the judgment imposing concurrent terms appealable. (§ 1238, subd. (a)(10).) We also conclude the award of presentence credits, impliedly made nunc pro tunc, was necessary to protect defendant’s due process right to enforcement of the plea bargain in case No. RIF134172, and did not affect the substantial rights of the People. (§ 1238, subd. (a)(5).)
1. Because the People Agreed That the Sentence in Case No. RIF 134172 Would Run Concurrent to “Any Other Matter,” and Because the Misdemeanor Citation That Eventually Became the Complaint in Case No. RIF134453 Was Already Pending At the Time of That Agreement, the People Are Precluded From Challenging the Imposition of Concurrent Sentences.
The award of credits was ordered specifically to effectuate the judgment imposing concurrent sentences so the appealability of the judgment depends upon whether the sentence is an unauthorized concurrent term. The People may appeal from the imposition of an unlawful sentence, except that portion of a sentence which, among other things, “is based upon a court’s choice that a term of imprisonment... be consecutive or concurrent to another term of imprisonment, unless an applicable statute requires that the term be consecutive.” (§ 1238, subd. (a)(10).)
The imposition of concurrent sentences was not precluded by an applicable statute requiring that the term be consecutive. In fact, concurrent terms were required by the plea agreement in case No. RIF134172, respecting “all other matters.” The misdemeanor citation that preceded the filing of the complaint in the current case was filed prior to the filing of the complaint in case No. RIF134172, and was pending at the time of the plea agreement in case No. RIF134172 so defendant was entitled to a concurrent sentence for this case. The imposition of concurrent sentences is not appealable because the People have not demonstrated that an applicable statute requires that the term be consecutive. (§ 1238, subd. (a)(10).)
The People argue that the sentence in case No. RIF134453 could not be ordered to run concurrent with a completed sentence in an unrelated matter. We disagree with this statement as it applies in the unique circumstances of this case: the People expressly agreed to a plea bargain for concurrent terms in case No. RIF134172, and then failed to notify defendant that the misdemeanor citation pending at the time of the plea bargain had been filed as a felony complaint in case No. RIF134453, and then failed to notify defendant of the issuance of the bench warrant for an entire year, when defendant failed to appear at the arraignment. Because the plea agreement made “all other matters” concurrent, and because the misdemeanor citation was pending at the time of that plea bargain, the People were bound to a concurrent term for the crime charged in this case.
The filing of an accusatory pleading commences a criminal action. (§ 949.) Whenever a written notice to appear has been prepared, delivered and filed by an officer or the prosecuting attorney, the duplicate copy of the notice constitutes a complaint. (§ 853.9, subd. (a).) A misdemeanor citation constitutes a complaint prosecuted in the name of the People of the State of California. (§ 684; see also In re Nicholls (1925) 74 Cal.App. 504 [prosecution of ordinance violations in the name of the People of the State of California].) The misdemeanor citation for the crimes alleged in case No. RIF134453 was filed on December 16, 2006, so that action was pending at the time the People filed the felony complaint in case No. RIF134172. The People are presumed to know of actions being prosecuted in their name at the time of the plea bargain in case No. RIF134172. (See In re Brown (1998) 17 Cal.4th 873, 879.) Thus, we give little weight to the declarations of the trial level prosecutors that they were unaware of the antecedent misdemeanor matter that was pending at the time of the plea in case No. RIF 134172.
In case No. RIF134172, the People and the defendant entered into a plea agreement which included a handwritten term that the sentence in that case would run concurrent “with all other matters.” The People argued in the trial court that the plea agreement did not refer to the present case because no case number was mentioned in the change of plea form and that the agreement was only intended to dispose of cases that defendant was “pleading to and taking care of that day.” These arguments are not persuasive.
A plea agreement is interpreted according to the same rules as other contracts. (People v. Toscano (2004) 124 Cal.App.4th 340, 344.) Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371.) If a contract is capable of two constructions, the court must choose that interpretation which will make the contract legally binding if it can be so construed without violating the intention of the parties. (Bleecher v. Conte (1981) 29 Cal.3d 345, 350.) Contracts should be read in a manner which renders them reasonable and capable of being put into effect. (Morton Thiokol v. Metal Bldg. Alteration Co. (1987) 193 Cal.App.3d 1025, 1030.)
When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. (Santobello v. New York (1971) 404 U.S. 257, 262 [92 S.Ct.495, 30 L.Ed.2d 427].) Once the court has accepted the terms of a negotiated plea, it is bound to impose a sentence within the limits of that bargain. (People v. Segura (2008) 44 Cal.4th 921, 931.) If a court cannot perform a portion of the plea agreement, the defendant must be given an opportunity to withdraw his guilty plea. (People v. Delles (1968) 69 Cal.2d 906, 910.)
If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. (People v. Shelton (2006) 37 Cal.4th 759, 767.) To resolve an ambiguity, the court must consider the circumstances under which the particular term of the agreement was made and the matter to which it relates, to determine what the sense in which the prosecutor and court (the promisors) believed, at the time of making it, that defendant (the promisee) understood it. (Id. at p. 768; People v. Rabanales (2008) 168 Cal.App.4th 494, 506.) Custom and usage may be resorted to in an effort to supply a deficiency if it does not alter or vary the terms of the agreement. (People v. Haney (1989) 207 Cal.App.3d 1034, 1039.) A court has authority to locate implied terms in order to carry out the intentions of the parties. (Id. at pp. 1038-1039.)
In the trial court, the People asserted that the plea agreement reference to concurrent terms referred only to “the matters that are before the Court that he’s pleading to and taking care of that day.” Stated another way, the People asserted that the reference to concurrent terms “on all other matters” was mere surplusage, since defendant did not plead guilty to any other cases that day. This construction violates the principles discussed above because it alters and varies the expressed terms of the agreement, and renders the handwritten term relating to concurrent sentences illusory. The trial court construed the plea agreement to include the present case as a “matter” to which the sentence in case No. RIF134172 would run concurrent, as it was authorized to do. (People v. Haney, supra, 207 Cal.App.3d at pp. 1038-1039.)
We agree with the trial court’s interpretation. While the inserted language relating to concurrent terms was not specific, we must interpret it in a way that gives meaning to the agreement and cannot assume that the parties would include a superfluous, irrelevant, or redundant term into the agreement. (Super 7 Motel Assocs. v. Wang (1993) 16 Cal.App.4th 541, 546.) This is particularly true where the terms in question were handwritten additions to the change of plea form, giving rise to the inference that it was of importance. Where a contract is partly written and partly printed, the written parts control. (Civ. Code, § 1651; Burns v. Peters (1936) 5 Cal.2d 619, 623.)
At oral argument, the People repeatedly complained they did not contemplate a deal involving concurrent terms—contrary to the express provisions of the plea agreement—in emphasizing the court’s error in imposing a concurrent term, supporting our view that this appeal is really a challenge to the concurrent sentence. Because the People expressly agreed that the sentence in case No. RIF134172 would run concurrent to all other matters, and because the current case was a matter pending at the time of that agreement, the People forfeited any challenge to the imposition of concurrent terms in this case by expressly agreeing to the sentence. Under such circumstances, the judgment imposing concurrent terms is not appealable by the People in the absence of an applicable statute requiring that the term be consecutive. (§ 1238, subd. (a)(10).)
Because the People’s Delay in Filing the Felony Complaint in case No. RIF134453 Prevented Defendant From Obtaining the Benefit of the Plea Agreement For Concurrent Terms, No Substantial Rights of the People Were Affected By the Award of Presentence Credits.
After filing the first notice of appeal, the People made a motion to vacate the judgment because the award of presentence custody credits was unauthorized. (§ 2900.5.) The People argued that this felony case was filed after defendant had pled guilty and been sentenced in case No. RIF134172, so the cases were unrelated. On appeal, the People argue that the order is appealable as an order after judgment affecting the substantial rights of the People. (§ 1238, subd. (a)(5).) In this respect, they argue that award of presentence credits was unauthorized because it included an award of custody credit for time served on case No. RIF134172 against his concurrent term in case No. RIF134453. We disagree.
The People’s right to appeal is statutory, and appeals that do not fall within the exact statutory language are prohibited. (People v. McDougal (2003) 109 Cal.App.4th 571, 580.) Section 1238, subdivision (a)(5), authorizes an appeal by the People from “[a]n order made after judgment, affecting the substantial rights of the people.” In order to affect the People’s substantial rights an order must in some way affect the judgment or its enforcement or hamper the further prosecution of the particular proceeding in which it is made. (People v. Leonard (2002) 97 Cal.App.4th 1297, 1300.) An award of presentence credits to effectuate a plea bargain accepted by the People does not affect the judgment or its enforcement or hamper the further prosecution of a proceeding.
We agree that section 2900.5 permits presentence custody credit only where the custody to be credited is attributable to proceedings related to the same conduct for which defendant has been convicted. (In re Joyner (1989) 48 Cal.3d 487, 492.) However, we disagree that the award of credits related to an expired sentence in an unrelated matter. (See § 2900.5, subd. (b); In re Rojas (1979) 23 Cal.3d 152, 156.) The cases were “related” because they were pending at the same time and were the subject of an agreement for concurrent terms. The award of credits was made to avoid a violation of defendant’s due process right to the benefit of his plea agreement for concurrent terms. If the People had not delayed prosecution of this case, defendant’s sentence on this case would have overlapped the sentence in case No. RIF134172 from January 26, 2007 onward.
We recognize that at least one published case has held that an improper award of presentence credits affected the substantial rights of the People because the order reduced a prison sentence. (See People v. Minjarez (1980) 102 Cal.App.3d 309, 312-313.) However, in that case the sentences were ordered to run consecutively, not concurrently, and did not involve a plea agreement for concurrent terms which would be violated by any other sentence. It would be inappropriate for the People to assert they have a substantial right to induce a guilty plea upon an illusory promise for concurrent terms.
The trial court concluded that the defendant reasonably believed that his plea agreement in case No. RIF134172 included this case (case No. RIF134453) in the reference to “concurrent with all other matters.” The People’s interpretation of the provisions of the plea agreement in case No. RIF134172 would render the handwritten provision relating to concurrent terms superfluous and illusory, and would deprive defendant of a bargained for term of the plea bargain, which he has fully performed. Unless the People assert they have a substantial right to engage in illusory plea bargains, the court’s order did not affect the substantial rights of the People. We cannot assume that the People entered into the plea bargain in case No. RIF134172 in bad faith, since the defendant did not dispose of any other criminal matters in court that day, in that proceeding.
Permitting the People to appeal from an award of credits, where the credits were awarded in order to effectuate the plea agreement for concurrent terms, would be to allow the People to appeal from a judgment imposing concurrent terms to which they expressly agreed, and thus would allow them to do indirectly what they cannot do directly. (See People v. Zemavasky (1942) 20 Cal.2d 56, 63; People v. Lewis (1933) 219 Cal. 410, 414.) Moreover, it would permit the People to breach a plea bargain, or engage in illusory agreements, in violation of a defendant’s due process rights. (Santobello v. New York, supra, 404 U.S. at p. 262.)
Here, the award of credits was made to effectuate a plea bargain for concurrent terms that was frustrated by the People’s conduct of waiting until the sentence in case No. RIF134172 had nearly lapsed before issuing the detainer in case No. RIF134453, a case that was pending prior to the filing of the complaint in case No. RIF134172. The trial court had the authority to impose concurrent terms, nunc pro tunc in compliance with the agreement, and its act of enforcing the agreement did not affect the substantial rights of the People. (§ 1238, subd. (a)(5).)
The trial court should have indicated that the term for case No. RIF134453 was ordered to run concurrent with case No. RIF134172, nunc pro tuncas of the date of the sentence in case No. RIF134172, since the misdemeanor citation that preceded the complaint in case No. RIF134453 was a matter that was pending at the time of that plea. The addition of the terms “nunc pro tunc” would have eliminated any challenge to the award of presentence custody credits since the two concurrent terms would have overlapped substantially.
We dismiss the appeal and direct the clerk of the superior court to amend the minutes of the sentence in case No. RIF134453 to include the term “nunc pro tunc” as of January 26, 2007, the date of defendant’s arraignment at which the bench warrant issued in case No. RIF134453.
DISPOSITION
The superior court clerk is directed to amend the minutes of the sentence in case No. RIF134453, dated March 17, 2008, to state “Case to run concurrent to: case No. RIF134172, “nunc pro tunc” as of January 26, 2007.” The appeal is dismissed.
I concur: King, J.
RAMIREZ, P.J., Dissenting.
I respectfully disagree with the majority’s conclusion that the People’s challenge to the running of the two-year term in No. RIF 134453 (hereafter, No. 53) concurrent with the already-served two-year term in No. RIF 134172 (hereafter No. 72) is not appealable because the trial court was required to so run it under the terms of the plea bargain in No. 72 (maj. opn., ante, at p. 5).
It is unfortunate, but true, that court minutes are often inaccurate. Because they are written by people untrained in the law and are never reviewed by the trial court, they often contain information that comprises the authoring clerk’s interpretation of what went on in the courtroom, however incorrect that might be. In In re Candelario (1970) 3 Cal.3d 702, the California Supreme Court addressed one aspect of the myriad of problems created when documents authored by the courtroom clerk do not accurately chronicle the proceedings. Five years later, in People v. Mesa (1975) 14 Cal.3d 466, 471, our high court held that an oral pronouncement of judgment governs over a contradictory statement in the minutes or abstract of judgment. In a substantial percentage of criminal cases I have authored, I have had to direct the trial court to have minutes, and even more importantly, abstracts of judgment (which follow a defendant throughout his criminal history) amended because they did not accurately reflect the rulings of the trial court or the events as stated in the transcripts of the proceedings. Such is the case here, and, unfortunately, both the trial court and the majority have latched on to the inaccurate statements in the minutes and by defendant below and ignored what actually occurred.
As the majority correctly notes (maj. opn., ante, at p. 3), in the change of plea form for No. 72, defendant agreed to be sentenced to two years concurrent “with all othermatters in any penal insti[tution].” (Italics added.) Accordingly, when the trial court sentenced defendant in this case, it stated, concerning the two-year term, “Time to run concurrently with any other matter in any penal institution.” (Italics added.) However, in reporting this fact, the courtroom clerk, in the minutes, stated, as the majority notes (maj. opn., ante, at p. 3), that the two-year term was to “run [c]on[c]urrent to [a]ny [o]ther [c]ases” which, in my opinion, is very different from running concurrent with all other matters in any penal institution or any other matter in any penal institution. The latter imply two interpretations that the sentence is to run concurrent with time the defendant is then serving in a penal institution. Certainly, to suggest that it refers to any time a defendant would serve, in the future, at any penal institution would be absurd.
Defense counsel further muddied the waters when, during her argument before the trial court that the plea bargain in No. 72 contemplated and covered the citation-turned-case No. 53, she asserted, as the majority notes (maj. opn., ante, at p. 4) that that bargain called for its two-year term to run “concurrent to any and all active cases,” which the trial court adopted, shortening it to “concurrent with all other matters, ”a phrase the majority treats as gospel (maj. opn., ante, at pp.6, 7). The trial court then ran the two-year term for No. 53 concurrent to the time that had been imposed (and already served) in No. 72 on its interpretation of “all other matters” to include No. 53. Defense counsel repeated this during the People’s motion to vacate the sentence by asserting that the bargain in No. 72 called for its two year term to run “[c]oncurrent with all other matters and to be served in any penal institution” (italics added) which is a far cry from what defendant signed off on in the change of plea form and what the trial court stated in open court constituted the bargain when it accepted defendant’s plea.
I note that in its references to “all other matters” on these pages of the opinion, the majority omits the words that followed these, i.e., “all other matters in any penalinstitution.” (Italics added.)
Additionally, I am troubled by the fact that not once, below, did defendant, himself, or the attorney who represented him at the time he entered his plea state what their understanding of the plea bargain in No. 72 was. The majority states, “If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor... the prosecutor and court... believed, at the time of making it, that the promisee... the defendant... understood it.” (Maj. opn., ante, at pp. 8, 9.) Although we have in the record before us the prosecutors’ belief as to what “concurrent with all other matters in any penal institution” meant, neither defendant nor the attorney who represented him at the time of the plea bargain in No. 72 stated what they believed those words meant. It would have been an easy matter to discern below, yet it was not done.
In contrast to silence by defendant, the prosecutor who represented the People when defendant signed the change of plea form stated in a declaration attached to the People’s Motion to Vacate the Sentence that it was his understanding that the plea bargain “did not include any new arrest or new pending case.” {CT 12} The prosecutor who represented the People before that day stated in a declaration attached to the motion that there had been no discussion between him and defense counsel about any pending or potential cases involving defendant. {CT 13}
See footnote two, ante, page 3.
Having concluded that defendant’s bargain in No. 72 did not include his receiving a concurrent term in the later No. 53, I therefore also disagree with the majority’s conclusion that the award of presentence credits in the latter was necessary to protect defendant’s due process right to enforce the No. 72 plea bargain. (Maj. opn., ante, at pp. 11, 12.)