Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCR76207
BUTZ, J.Defendant Christian James Atwood appeals following a no contest plea conviction. He argues his sentence violates the terms of the plea bargain, and the trial court erred in imposing a fine pursuant to Penal Code section 290.3. The People concede both issues. Since the first concession is well taken, we shall reverse the judgment.
Undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
Charged with failing to annually update his sex offender registration, a violation of section 290.012, defendant entered a plea of no contest with a promise of “no immediate state prison.”
At sentencing, however, the trial court announced it had read for the first time in the probation report information that led it to conclude it “would not be able to honor the ‘no immediate state prison agreement.’” The court denied probation and sentenced defendant to state prison for the upper term of three years. The court did not inform defendant of the provisions of section 1192.5 that, should the court withdraw its approval of the plea bargain, he would be permitted to withdraw his plea.
Section 1192.5 provides, in relevant 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... plea if he... desires to do so.”
DISCUSSION
Defendant argues the trial court violated the plea agreement when it denied him probation and sentenced him to state prison because the plea agreement it had previously approved provided for no immediate prison time. The People concede the sentence violates the terms of the plea bargain, and that the issue may be raised notwithstanding defendant’s failure to object at sentencing, because he was not given the admonishment set forth in section 1192.5. (People v. Walker (1991) 54 Cal.3d 1013, 1024-1025 (Walker).)
We agree. Once, as here, the court accepts a negotiated plea agreement, it becomes “‘“in essence[] a contract between the defendant and the prosecutor to which the court consents to be bound.”’” (People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1337 (Gifford), quoting People v. Ames (1989) 213 Cal.App.3d 1214, 1217; see People v. Shelton (2006) 37 Cal.4th 759, 767.) At that time, the terms of the agreement become fixed and the parties “are entitled to the benefits for which they have bargained.” (People v. Daugherty (1981) 123 Cal.App.3d 314, 321.) The parties must abide by the terms of the agreement and the court cannot thereafter impose a punishment that “significantly exceed[s]” that to which the parties have agreed. (Walker, supra, 54 Cal.3d at p. 1024.)
Of course, the court may withdraw its initial approval of the plea at the time of sentencing. (§ 1192.5; People v. Jackson (1980) 103 Cal.App.3d 635, 638.) If it does so, however, the court must reject the plea agreement and inform the defendant that he has the right to withdraw his plea; it cannot merely alter the terms of the agreement by imposing punishment significantly greater than that originally bargained for. (§ 1192.5; Walker, supra, 54 Cal.3d at p. 1026; Gifford, supra, 53 Cal.App.4th at p. 1337.)
Defendant also contends, and we agree, that if defendant elects to withdraw his plea on remand, any statements he made in reliance upon the previous plea bargain—including those made to probation officers—must be excluded in proceedings subsequent to the withdrawal of his plea. (People v. Scheller (2006) 136 Cal.App.4th 1143, 1149-1152.)
Defendant also contends the trial court erred when it ordered him to pay a fine pursuant to section 290.3, plus related assessments. The People concede the error and we agree. A fine pursuant to section 290.3 may be imposed only upon a conviction of certain enumerated crimes. (§§ 290.3, subd. (a), 290, subd. (c).) The crime to which defendant pleaded no contest—a violation of section 290.012, subdivision (a)—is not among the crimes for which a section 290.3 fine is authorized. (§ 290, subd. (c).) Accordingly, the fine and its related assessments should not have been imposed.
DISPOSITION
The judgment sentencing defendant to state prison is reversed, and the matter is remanded to the trial court, which is directed to advise defendant of his rights under section 1192.5, and to permit him to withdraw his no contest plea and enter a new plea.
We concur: ROBIE, Acting P. J., DUARTE, J.