Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for Los Angeles County, Ct. No. PA058448, Cynthia L. Ulfig, Judge.
Law Office of R. Wayne McMillan and R. Wayne McMillan for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Defendant Akarapong Sasomsop, who entered a no contest plea to a charge that he violated Health and Safety Code section 11379, subdivision (a), appeals after the trial court denied his motion to clarify the factual basis for his plea. He sought an order stating that the factual basis for his plea was transporting a controlled substance, rather than any other basis listed in section 11379, subdivision (a). He contends that when his motion for clarification was denied, he was denied the benefit of his plea bargain. We affirm the trial court’s order.
Further undesignated statutory references are to the Health and Safety Code.
Section 11379, subdivision (a), makes it a felony to “transport, import into this state, sell, furnish, administer, or give away, or offer to transport, import into this state, sell, furnish, administer, or give away, or attempt to import into this state or transport” certain categories of controlled substances.
BACKGROUND
On March 15, 2008, Los Angeles County Deputy Sheriff Robert Gillis conducted a traffic stop of a car, driven by defendant, that went through a stop sign. As he approached the car, he smelled marijuana. He conducted a search of the car, and found a sandwich baggie that held 21 blue pills. The deputy commented to himself that he found some Ecstasy, and defendant spontaneously admitted that he had some Ecstasy that he was transporting to a party. Defendant said that each tablet was worth six dollars, and that he had only been involved with providing Ecstasy to parties for the past month. Deputy Gillis placed defendant under arrest.
Deputy Gillis also found a pill bottle containing marijuana in a backpack in the car.
The District Attorney filed a felony complaint alleging three counts. Count 1 alleged that “the crime of SALE OF A CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11379(a), a Felony, was committed by AKARAPONG SASOMSOP, who did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, methylenedioxymethamphetamine.” Count 2 alleged that defendant possessed for sale a controlled substance in violation of section 11378, and count 3 alleged a misdemeanor violation of Vehicle Code section 23222, subdivision (b), possession of marijuana while driving.
Minute orders in the record on appeal indicate that an information with the same three counts was filed after the preliminary hearing, but the information is not included in the record.
On October 3, 2008, defendant appeared in court, represented by private counsel. Defense counsel informed the court that defendant would plead no contest to count 2 (possession for sale), in exchange for probation and 180 days in county jail. The trial court (Judge Alice C. Hill presiding) asked defendant if he had had enough time to discuss the matter with his attorney, and whether his attorney explained to him the nature of the charges against him, any possible defenses he might have, and the consequences of his plea. Defendant answered in the affirmative. The court noted that defendant had initialed and signed a waiver of rights form, and went through the form, obtaining defendant’s oral agreement that he understood each part of it and gave up each of the rights set forth. As part of the questioning, the court asked: “Do you also understand if you are not a citizen of the United States you must expect your plea of guilty or no contest will result in your deportation from the United States, exclusion from reentry into the United States, and denial of naturalization and amnesty?” Defendant answered “Yes.”
Defendant entered a plea of no contest to count 2, and his attorney stipulated to a factual basis based on the police report, the preliminary hearing transcript, and the probation officer’s report. The trial court found a factual basis and, in accordance with the agreement between the parties, suspended imposition of sentence and placed defendant on formal probation for a period of three years on condition that he serve the first 180 days in county jail. The court then granted the prosecution’s motion to dismiss the remaining counts and ordered defendant to return to court for surrender on November 7, 2008.
About a month after defendant’s surrender, defendant discovered that an immigration hold had been placed on him. Defendant and his family immigrated from Thailand when defendant was 12 years old, and have lived in Southern California for the past 10 years. Although his mother is a naturalized United States citizen, defendant is not; he is a lawful permanent resident. As a result of his conviction for possession for sale, he was subject to deportation after he served his time in jail.
Defendant contacted his attorney, who filed a motion on behalf of defendant to withdraw his no contest plea to count 2 (violation of section 11378, described in the motion as “commonly known as possession for sale of a controlled substance”) and enter a no contest plea to count 1, (violation of section 11379, subdivision (a), described as “commonly known as transportation of a controlled substance”). The moving papers explained that defendant pled to count 2 rather than count 1, which the papers described as “a more serious charge, ” based upon an assumption that it was in defendant’s best interest to plead to the lesser count. But defendant subsequently learned that a conviction under section 11378 would lead to almost certain deportation, while deportation is not as certain for a conviction under section 11379, subdivision (a). Therefore, defendant asked to “be allowed to ‘plead up’ to a more serious charge under Count I of the complaint.”
Before the hearing on the motion, which was held on December 12, 2008, defense counsel and the prosecutor met with the trial court (Judge Hill) in chambers. After that meeting, the court stated its understanding of the motion on the record: “It’s my understanding that the defendant would like to withdraw his plea to count 2 and enter a no contest plea to count 1 for the same disposition that was previously reached.” Defense counsel agreed with the court’s statement, and the court noted its understanding that the People did not object. The prosecutor stated, “Yes, Your Honor. And for the court’s purposes, when I made the plea offer to counsel, it was either count 1 or 2, and so I see no difference now if he wants to change it.” After the court indicated it would grant the motion, the prosecutor asked to go off the record.
After conferring with counsel, the court went back on the record and explained that the People would amend the information to add a count 4 (because the court had dismissed count 1 when it accepted defendant’s original plea). The prosecutor responded: “Yes. And I will make that motion at this point. And again, so that everybody is clear on this, this is for the purpose to allow him to plead to the count which he believes is more beneficial to the defendant for immigration purposes. I don’t believe it makes any difference, but since I initially offered counsel, or his client through counsel, to plead either to an 11379 or 11378, I see no prejudice to the People’s position in allowing him to plead to an 11379 at this point.” The court then stated, “Okay. So that is what we’ll do. Count 4 is now a violation of Health and Safety Code 11379(a), sales, transportation of a controlled substance.” It asked defendant if he now wanted to withdraw his plea to count 2 and enter a new no contest plea to the new count 4. When defendant asked the court to repeat the counts, the court said, “You would be entering a no contest plea to a violation of Health and Safety Code section 11379(a). It would be a new count 4.” Defendant agreed that this was what he wanted to do.
The court read through the waiver of rights form defendant signed, and obtained defendant’s oral agreement that he understood each part of it and gave up each of the rights set forth. As it did when it took defendant’s original plea, the court asked defendant: “Do you understand that if you are not a citizen of the United States you must expect that your plea of guilty or no contest will result in your deportation, exclusion from admission or reentry into the United States, and denial of naturalization and amnesty?” Defendant answered “Yes.” The court asked defendant if he wanted additional time to discuss the matter with an immigration attorney or if he had any questions, and defendant said he did not. The court then asked how he wished “to plead to count 4 of the amended information charging you with a violation of Health and Safety Code section 11379(a).” Defendant responded, “No contest.”
Turning to defense counsel, the court asked if counsel concurred in the plea, joined in the waivers, and stipulated “to a factual basis based on the police reports and the preliminary hearing transcript as well as the probation officer’s report.” Counsel responded: “Yes, Your Honor. One caveat, we would like to plead pursuant to People versus West.” The court accepted defendant’s plea, suspended imposition of sentence, and placed defendant on formal probation under the same terms and conditions as had previously been imposed.
Six months later, defendant, representing himself, filed a petition for writ of habeas corpus, on the ground that he was not adequately informed by his counsel about the immigration consequences of his plea. At that time, he was being held by Immigration and Customs Enforcement in a detention facility, having served his time in jail. The trial court (Judge Cynthia L. Ulfig presiding) denied the petition. He filed another petition (again representing himself) four months later, asserting that he had been in custody “far beyond the original sentence.” The court denied that petition.
Judge Hill no longer sat on the Los Angeles Superior Court.
Several months later, on January 27, 2010, defendant, represented by new counsel, filed a motion to clarify the factual basis of his December 12, 2008 plea. The moving papers explained that defendant’s new counsel represented defendant before the Immigration Court, and that there was “confusion” on the part of the government and immigration judge in that court about the basis for defendant’s plea. The moving papers asserted that defendant’s December 12, 2008 plea was to transportation of a controlled substance, rather than any of the other violations listed in section 11379, subdivision (a). But the papers stated that the court record of the plea is “murky” because the trial court found a factual basis for the plea based upon the preliminary hearing transcript, police report, and probation officer’s report. The papers explained that a drug trafficking crime, such as possession of a controlled substance for sale, is an aggravated felony under immigration law, but that transportation of a controlled substance is not; while both crimes are deportable offenses, an alien who commits a transportation offense may seek relief from the immigration judge but one who commits an aggravated felony may not. The motion asked the trial court to “clarify” that the factual basis for the December 12, 2008 plea was transporting a controlled substance, as opposed to any other violation, because “[t]he actual facts surrounding the defendant’s arrest... in no way included sale or any other possible violation found within [section 11379, subdivision (a)].”
The People filed written opposition to defendant’s motion, arguing that the plea bargain did not include an agreement to strike any part of the section 11379 count, and that defendant pled to the count as charged. At the hearing on the motion, the trial court noted that the judge who took the plea on December 12, 2008, had left the court. The court asked the prosecutor (who was the prosecutor at the time of the plea) whether the plea was meant to be only for transporting. He said it was not, and that if defense counsel had tried to limit the plea to transporting at the time of the plea, he would have objected. The prosecutor emphasized that the only discussions that he had with defense counsel involved whether defendant would plead to count 1 or count 2, and that defense counsel said he thought defendant would have a “better shot” at avoiding deportation with a section 11379 conviction than with a section 11378 conviction. After reviewing the plea form that defendant signed and the transcript for the December 12, 2008 hearing, the trial court concluded that defendant’s plea was not limited to transportation of a controlled substance. Therefore, the trial court denied defendant’s motion.
Defendant timely filed a notice of appeal from the order denying his motion, and obtained a certificate of probable cause.
DISCUSSION
On appeal, defendant argues that, in moving to withdraw his plea to the section 11378 count and instead plead to the section 11379 count, it was his “clear intent” to plead under a theory of transportation, and that he did not receive the benefit of his plea bargain because the plea was not expressly limited to transportation. The record does not support his argument.
Defendant’s written motion to withdraw his original plea simply stated that defendant sought to withdraw his plea to count 2 and enter a no contest plea to count 1. Count 1 alleged that defendant committed “the crime of SALE OF A CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11379(a), ” by “unlawfully transport[ing], import[ing] into the State of California, sell[ing], furnish[ing], administer[ing], and giv[ing] away, and offer[ing] to transport, import into the State of California, sell, furnish, administer, and give away, and attempt[ing] to import into the State of California and transport a controlled substance, to wit, methylenedioxymethamphetamine.” Although defendant’s motion indicated that section 11379, subdivision (a) was “commonly known as transportation of a controlled substance, ” the moving papers did not state that defendant intended to limit his plea to transportation of a controlled substance.
At the hearing on the motion to withdraw, no mention was made of any intent to limit the plea. Instead, defense counsel simply agreed with the trial court’s statement that defendant wanted to withdraw his plea to count 2 and enter a no contest plea to count 1. The prosecutor explained that he did not object because the original plea offer had been to plead to either count, so there was no prejudice to the People’s position if defendant changed his plea from count 2 to count 1. And when the trial court granted the prosecution’s motion to add a new count 4 (to replace count 1, which had been dismissed), it explained that “Count 4 is now a violation of Health and Safety Code 11379(a), sales, transportation of a controlled substance.” (Italics added.)
When defendant subsequently brought his motion to “clarify” that his plea was limited to transportation of a controlled substance, the prosecutor denied that there had been any agreement to limit defendant’s plea when he pled to count 4, and that he would have objected if defense counsel had sought to limit the plea to transportation. In light of this record, Judge Ulfig had no choice but to deny defendant’s motion to clarify. As the Supreme Court has explained, a plea bargain “‘contemplates an agreement by the People and the defendant and approved by the court.’... [¶] [O]nly the prosecutor is authorized to negotiate a plea agreement on behalf of the state. ‘[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of “plea bargaining” to “agree” to a disposition of the case over prosecutorial objection.’” (People v. Segura (2008) 44 Cal.4th 921, 929-930.)
Given the absence of any evidence that defendant and the prosecutor had agreed to limit defendant’s plea to transportation of a controlled substance, and the prosecutor’s statement the he would object to any such limitation, the trial court had no authority to find that defendant’s plea was limited to transportation of a controlled substance.
DISPOSITION
The order denying defendant’s motion to clarify is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.