Opinion
NOT TO BE PUBLISHED
Superior Court County No. F419154 of San Luis Obispo Martin J. Tangeman, Judge.
Ilan Funke-Bilu, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Paul Raymond Whaley, Jr., appeals from a judgment after his no contest plea to one count of driving with a blood alcohol level of.08 percent or greater and one count of hit and run with property damage. (Veh. Code, §§ 23152, subd. (b) & 20002, subd. (a).) Pursuant to the terms of the plea agreement, the trial court suspended appellant's sentence and granted probation on terms that included 90 days in county jail.
All statutory references are to the Vehicle Code unless otherwise stated.
Appellant contends that, although the parties stipulated to 90 days in jail as a term of probation, he should only be required to serve 30 days because the court erroneously pronounced a 30-day term at the unreported sentencing hearing, or because the clerk erroneously recorded "30 days" in her original minute order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the preliminary hearing transcript, appellant struck a parked minivan with his car, drove away, and then drove down an embankment. His passenger was injured. Appellant's blood alcohol level was.20 percent.
Appellant was charged with misdemeanor hit and run with property damage (§ 20002, subd. (a)) and two felony drunk driving counts (§§ 23153, subds. (a) & (b)). He and the prosecution negotiated a plea by which the felony counts would be dismissed, appellant would plead no contest to two misdemeanors, his sentence would be suspended, and he would be granted probation on terms that included 90 days in county jail.
The sentencing hearing was not reported. The clerk's minute order states that, "[i]mposition of sentence [is] suspended and defendant [is] placed on probation on the terms and conditions as stated in the probation order attached." The attached order of probation required appellant to "[s]erve 90 days in the San Luis Obispo County Jail beginning January 30, 2010 at 8:00 a.m., " as a condition of probation. The court signed the order of probation at the sentencing hearing, as did appellant.
The clerk's minute order also contains a corrected error. At the bottom of the order, the clerk initially noted, "sentenced to 30 days county jail." Days later, the clerk corrected the "30" to "90" by interlineation, with the permission of the sentencing judge.
When appellant's counsel received the corrected minute order, he filed a petition in which he asked the court to reduce the jail term from 90 days to 30 days. Appellant and his counsel represented that the court had actually said "30 days" when it pronounced sentence. The trial judge and the prosecutor were not able to recall whether or not that was true. The trial judge did recall that it read the probation order aloud to the defendant, signed it, and had appellant sign it before appellant left the courtroom on the day of sentencing. Appellant's counsel conceded that the written probation order said "90 days, " the parties had stipulated to a 90-day term, and appellant had read and signed the probation order before he left the courtroom on the day of sentencing.
The trial court denied appellant's request to reduce the jail term because the reduction would materially alter the terms of the plea agreement. The court offered to vacate the plea and reinstate the felony charges. Appellant declined to withdraw his plea.
After appellant waived time and further arraignment, the court resentenced appellant, consistent with the terms of the negotiated plea including a 90-day jail term, without prejudice to this appeal. The court stayed the jail term pending appeal. Appellant did not request a certificate of probable cause.
DISCUSSION
We consider only the proceedings held subsequent to the plea and do not review the terms of the negotiated sentence, because appellant did not obtain a certificate of probable cause and agreed to the terms of the sentence as an integral part of the plea agreement. (Pen. Code, § 1237.5; People v. Johnson (2009) 47 Cal.4th 668, 678.)
Even if the court pronounced a 30-day jail term subsequent to the plea, that term would be unlawful and subject to correction because it would have materially altered the terms of the negotiated plea. Acceptance of a negotiated plea binds the court to its terms. (People v. Segura (2008) 44 Cal.4th 921, 930.) A trial court may reject a plea agreement entirely, but it has no jurisdiction to alter the terms to make it more favorable to the defendant. (People v. Blount (2009) 175 Cal.App.4th 992, 997.) Appellant's counsel conceded twice in the trial court that "this was a stipulated 90-day agreement" and he declined the court's offer to vacate the entire plea.
Appellant has not, in any case, established that the court orally pronounced a 30-day jail term. He has not supplied a transcript or settled statement of the sentencing hearing. All intendments and presumptions are indulged to support the judgment on matters to which the record is silent and error must be affirmatively shown. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.) We must presume that the court announced the correct, stipulated term of 90 days, as reflected in the probation order and the corrected minute order.
The signed order granting probation with a 90-day jail term controls over the clerk's original minute order. When parts of the trial record conflict, the question of which controls depends on the circumstances of each case. (People v. Malabag, supra, 51 Cal.App.4th at pp. 1422-1423.) Where the record of trial court proceedings is in conflict, "it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to the greater credence [citation]." (In re Evans (1945) 70 Cal.App.2d 213, 216.) Here, the signed order granting probation with a 90-day jail term is entitled to greatest credence because it was written, was signed by the judge and appellant contemporaneously with pronouncement of judgment, and was a lawful term that conformed with the material terms of the plea agreement.
DISPOSITION
The judgment is affirmed.
We concur:
GILBERT, P.J., YEGAN, J.