Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF145338, James T. Warren, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Emily R. Hanks, Deputy Attorney General, for Plaintiff and Respondent
OPINION
Gaut, J.
Defendant Kevin Deshawn Bolton pled guilty, purportedly pursuant to a written plea agreement that expressly provided for half-time sentence credit eligibility, and did not include an agreement to admit a Strike. He was sentenced to the stipulated term of six years eight months and appealed after discovering that he was not eligible for half-time credits because he had admitted a Strike.
On appeal, defendant argues (1) his plea was not knowingly and intelligently entered because both his attorney and the court advised him he would be eligible for half-time conduct credits against his sentence, and (2) his trial counsel was ineffective because he failed to advise defendant he would not be eligible for half-time credits if he admitted the Strike allegation. Defendant also filed a petition for writ of habeas corpus, or in the alternative a petition for writ of error coram nobis (case No. E048262) raising related issues. The People filed an informal response to the Petition for Writ of Habeas Corpus which also served as respondent’s brief, conceding that the matter should be remanded to the trial court to allow defendant to withdraw his guilty plea. We reverse.
The correct nomenclature for a petition for writ of error filed in the reviewing court is a petition for writ of error coram vobis. “Coram nobis” is invoked to allow the same court that had rendered the judgment to reconsider it in a case in which the record still remains before that court. (People v. Kim (2009), 45 Cal.4th 1078, 1091.) “Coram vobis” is essentially identical to the writ of coram nobis except that “coram vobis” is directed to the Court of Appeal which affirmed the judgment on appeal. (In re Wessley W. (1981) 125 Cal.App.3d 240, 248.)
By a separate order, we deny the petition for writ of habeas corpus in case No. E048262.
BACKGROUND
Because the facts of the offense are not relevant to the issues, we omit them. On August 22, 2008, defendant was charged with being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)) (count 1), deterring an executive officer from performing his duty by threats and violence (Pen. Code, § 69) (count 2), active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) (count 3), and resisting arrest (a misdemeanor). (Pen. Code, § 148, subd. (a)(1), count 4.) The complaint further alleged defendant had two prior convictions for which he had served separate prison terms (Pen. Code, § 667.5, subd. (b)), and one prior conviction for a serious or violent felony under the Three Strikes law. (Pen. Code, § 667, subds. (c), (e)(1), § 1170.12, subd. (c)(1).)
On September 4, 2008, at the felony settlement conference, defendant entered into a plea bargain. According to the terms of the written agreement, defendant agreed to plead guilty to being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and to attempting to deter an executive officer from performing his duty (Pen. Code, § 69). Under the written agreement, defendant agreed to admit the gang enhancement allegation relating to count 1 (Pen. Code, § 186.22, subd. (b)), and admit two prison priors (Pen. Code, § 667.5, subd. (b)), and stipulated to a term of six years eight months in prison. The agreement further provided that defendant would be eligible for half-time custody credits.
However, the plea actually entered during the oral proceedings differed from the written agreement. After reciting the terms of the agreement as written, and orally advising defendant he would be eligible for the half-time credits, the court inquired if defendant would be admitting the Strike allegation, and both counsel agreed he would. Defendant then admitted the Strike. On September 10, 2008, defendant was sentenced to a total term of six years eight months, under the Strikes law. After his transfer to the Department of Corrections and Rehabilitation, defendant learned that because he had admitted the Strike, he was not eligible for the half-time credit. On December 10, 2008, defendant appealed, and the trial court granted defendant’s request for a certificate of probable cause.
DISCUSSION
At the outset, we note that there is a discrepancy between the written plea agreement of the parties and the oral proceedings in which defendant’s guilty plea was entered. In the written plea agreement, there is no agreement to admit the Strike allegation, which is consistent with the parties’ agreement that defendant would be eligible for half-time sentence credits. The oral proceedings were chaotic to say the least, with two separate interruptions to allow the parties to discuss their understandings of the agreement. The court initially read the plea agreement out to defendant as it was written out (without any reference to admitting a Strike) and informed defendant he would be eligible for half-time credits. When the time came to admit the prior convictions, however, the parties orally informed the court that defendant would be admitting the Strike, and defendant did so.
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.) Due process applies not only to the procedure of accepting the plea (see Boykin v. Alabama (1969), 395 U.S. 238), but also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy. (People v. Mancheno (1982), 32 Cal.3d 855, 860; see also People v. Walker(1991), 54 Cal.3d 1013, 1024.)
The advisement of the consequences of a plea is not constitutionally mandated. (People v. Walker, supra, 54 Cal.3d at p. 1022.) This is particularly true where the consequences at issue are considered collateral consequences, as opposed to direct consequences. (See People v. Barella (1999), 20 Cal.4th 261, 272.) In Barella, the trial court failed to advise the defendant of the limit on good-time or work-time credits available to him upon a conviction for a crime to which the Strikes law applied.
However, there is a difference between a proceeding in which the court and/or counsel failed to advise the defendant of a limitation on credits and a proceeding in which all counsel and the court affirmatively misled defendant to believe he was eligible for half-time credits. Affirmative misadvisement by trial counsel may, depending on the circumstances of the particular case, constitute ineffective assistance of counsel. (In re Resendiz (2001) 25 Cal.4th 230, 235, 248.) Where counsel’s advice that defendant would be eligible for half-time credits has been ratified by the prosecution’s written agreement to a plea bargain including a written term referring to defendant’s eligibility for half-time credit, and is further echoed by the trial court’s oral advice of eligibility for half-time credit, a defendant’s plea has not been knowingly or intelligently made.
A negotiated plea agreement is a form of contract, and is interpreted according to general contract principles. (People v. Shelton (2006), 37 Cal.4th 759, 767.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) 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.) We view the inclusion of the credits eligibility to be a term of significance in the plea bargain, considering the fact that the parties handwrote the term.
Respondent agrees that when the punishment significantly exceeds what the parties agreed to in the plea agreement, defendant is entitled to a remedy even without a showing of prejudice. A violation of a plea bargain is not subject to harmless error analysis. (People v. Walker, supra, 54 Cal.3d at pp. 1025-1026.) The usual remedies for violation of the plea bargain are to (a) allow the defendant to withdraw the plea and go to trial on the original charges, or (b) to specifically enforce the plea bargain. (People v. Mancheno, supra, 32 Cal.3d at pp. 860-861.) Because the oral admission of the Strike prior prohibits enforcement of the term of the plea bargain relating to half-time credits, specific performance is not available. (In re Williams (2000) 83 Cal.App.4th 936, 944-945.) Thus, defendant must be given the opportunity to withdraw the plea.
Because the matter must be remanded for further proceedings, we point out that the complaint alleges that both of the prison priors occurred on December 10, 2004, suggesting that they were not “separate prison terms,” as required by Penal Code section 667.5, subdivision (b), for separate enhancements. Enhancement for prison priors (Pen. Code, § 667.5, subd. (b)) relate to separate prison terms, not separate counts of conviction. The enhancement does not apply to any felony for which defendant did not serve a separate prison term. (Pen. Code, § 667.5, subd. (e).) A “prior separate prison term” means a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison. (Pen. Code, § 667.5, subd. (g); People v. Jones (1998), 63 Cal.App.4th 744, 746-747.)
If multiple convictions are ordered, in the same or subsequent proceedings, to be served concurrently or consecutively, they are deemed to be part of the same prison term. (People v. Cardenas (1987), 192 Cal.App.3d 51, 56.) Thus, if the two alleged prison priors relate to the same continuous period of incarceration, for which defendant was sentenced on December 10, 2004, he may be charged with only one prison prior enhancement allegation. (People v. Medina (1988), 206 Cal.App.3d 986, 991-992.)
DISPOSITION
The judgment is reversed and remanded to give defendant the opportunity to withdraw his plea.
We concur: Richli, Acting P. J., King, J.