Opinion
C083465
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. LUCAS AURELIO CASTRO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16-F3373, 16-F3969)
Defendant Lucas Aurelio Castro contends the trial court violated the terms of his plea agreement in sentencing him on two counts rather than one. We agree that the count at issue should have been dismissed at the time of sentencing; consequently, we shall modify the judgment to strike the count of conviction at issue and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case concerns two different charging documents and defendant's plea to one count of each, the second count pleaded only as an "alternate" charge.
The facts of the underlying charges are not relevant to our discussion on appeal. It suffices to say that defendant was charged in case No. 16-F3373 (the ADW case) with assault with a deadly weapon (ADW) (Pen. Code, § 245, subd. (a)(1); count 1) and three additional counts related to the same incident, all alleged to have occurred on May 18, 2016. Defendant was subsequently charged in case No. 16-F3969 (the stalking case) with felony stalking on or between May 18 and June 2, 2016 (§ 646.9, subd. (a); count 1), and several additional counts.
Undesignated statutory references are to the Penal Code.
On July 7, 2016, the parties agreed to a global plea deal. As relevant here, defendant was to plead no contest to ADW in the ADW case, and to stalking in the stalking case as an "alternative charge"; the remaining counts in both cases would be dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758. The written plea agreement explained that defendant would receive a three-year suspended sentence and be released that day with a GPS monitor. If defendant completed probation with no violations, his ADW plea would be "withdrawn [and dismissed] per [section] 1385." If defendant violated probation, the stalking charge would be "dismissed as its [sic] an alternative charge." The plea form set forth defendant's maximum sentence as four years in prison.
The plea agreement also contained a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247, 1250: "If I fail, without good cause, to show up for my pre-sentence interview (PSI), or fail to show up for court at the time and date set for my sentencing, or if I commit another crime, or violate the conditions of my release pending sentencing, my plea will remain, but the judge who sentences me will not be bound by any sentencing agreements or indications and may sentence me to the maximum sentence allowed by law on the charge(s) to which I have pled." Defendant indicated his acceptance by initialing next to the waiver.
That same day, the trial court explained the plea deal to defendant, noting he would plead to ADW in one case and stalking in the other, to resolve both cases, with stalking as the "alternative charge." Defendant would be sentenced to three years in state prison, but the sentence would be suspended while defendant was on probation. "If you complete probation with no violations, your plea to [ADW] may be withdrawn and dismissed pursuant to Penal Code section 1385. If you violate [probation,] and in other words, if you have any contact with the victim in the case, the stalking charge will be dismissed, because it is an alternative charge. So one way or the other, the idea is, that if you are successful on probation you'll get rid of the strike. [¶] If you are unsuccessful on probation, and you go to prison the stalking charge will be dismissed. The idea is to have one felony count, either way you look at it." (Italics added.) The trial court informed defendant the ADW was a serious felony and a strike, with a maximum sentence of four years in prison, and the maximum sentence for the stalking charge was three years. "So those are the potential consequences." The court continued, "You could receive up to four years in prison." Defendant confirmed he understood.
Defendant proceeded to plead no contest to ADW and stalking; the trial court dismissed the remaining charges and ordered defendant released on supervised own recognizance release (SOR), directing defendant to meet with his probation officer to "talk about terms and conditions of probation." The court warned defendant that if he failed to appear for sentencing or failed to meet with his probation officer, he "could receive the entire four years in prison right up front." Defendant confirmed he understood. The court ordered defendant to return to court on August 18, 2016. Defendant agreed to multiple conditions with respect to his SOR, including that he would appear at all times and places as ordered and would not violate any laws.
On August 2, 2016, the probation department requested to terminate defendant from SOR, alleging that on July 29, 2016, probation officers found a bag containing methamphetamine in defendant's shorts. An August 10, 2016 report from the probation department noted defendant had failed to appear for his August 1, 2016, appointment with his probation officer.
On October 21, 2016, the trial court held a sentencing hearing. The court noted defendant had violated court orders that the court had "specifically talked about at the time of the entry of the plea." Although the plea "was supposed to be a three-year execution of his sentence suspended," defendant had signed a Cruz waiver which "authorize[d]" the trial court to sentence defendant to the "aggravated term on the [ADW], and I'm looking at doing that. [¶] The change of plea also contemplated that the [stalking] would be dismissed, as it is an alternative charge. What had been planned is that he could plead to the strike and then the non-strike. If he had done well, the strike would be dismissed at the end of probation, and then the non-strike would be his felony conviction, but because he didn't even get that far, he's going to be sentenced on the strike."
The prosecutor argued that because the stalking was "from a different case," it was "actually not an alternative charge." He argued defendant should be sentenced on both counts to which he had pleaded--the ADW and the stalking charges--for the "most allowed under the agreement" of four years eight months in prison. The trial court found that defendant had violated his Cruz waiver, meaning "all bets were off" and sentenced him on both counts, to the upper term of four years for the ADW charge and eight months (one-third the midterm) consecutive for stalking.
Defendant obtained a certificate of probable cause and timely appealed.
DISCUSSION
Defendant contends the trial court violated his plea agreement in sentencing him on both the stalking and ADW charges. He argues that, under his plea agreement, the stalking charge had to be dismissed if he violated probation, which included the period prior to sentencing during which he was on SOR. Defendant requests we either strike the stalking conviction as specific performance of the plea agreement or remand the case and allow him to withdraw his plea.
We directed the parties to address in supplemental briefing the significance of the trial court's repeated advisements to defendant at the time of his plea that clearly contemplated a four-year maximum sentence if either the Cruz waiver or the conditions of probation were violated. Defendant argues the trial court's advisements that the maximum sentence was four years were consistent with the written plea agreement, which contemplated dismissing the stalking charge if defendant violated probation or the terms of his SOR. The People counter the court's references to a maximum term of four years were consistent with the outcome if defendant violated probation but, under the Cruz waiver, the "potential consequences were more severe" if defendant violated the terms of his release before sentencing. Defendant has the better argument.
" 'When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.' [Citations.]" (People v. Panizzon (1996) 13 Cal.4th 68, 80.) "[B]efore taking the plea, the trial court must admonish the defendant of . . . the direct consequences of the plea." (Ibid.)
The written plea agreement made clear defendant would plead to the ADW; the stalking was included only as an "alternative charge." If he successfully completed probation, the ADW would be dismissed. If he failed on probation, the "alternative" stalking charge would be dismissed and the "maximum period of incarceration" was four years (the upper term on the ADW). But it was not just a failure on probation that could cause defendant to suffer the harshest consequences of his plea--the strike conviction to ADW and corresponding four-year maximum sentence of an ADW--as the trial court explained, a violation of presentence release would have the same effect. During defendant's change of plea hearing, the court warned him that if he failed to appear in court for sentencing or failed to meet with his probation officer, he "could receive the entire four years in prison right up front."
Further, before the prosecutor denied that the stalking plea was meant as only as an alternative charge, at sentencing the trial court correctly expressed the intent of the plea agreement as the court had understood it--that the significance of defendant's SOR violation given his Cruz waiver was the stalking charge would be dismissed and the court was now "authorize[d]" to sentence defendant pursuant to the ADW charge.
To comply with the parties' plea agreement, we will strike the stalking conviction and sentence.
Given our conclusion, we need not reach defendant's alternate contention that his trial counsel provided ineffective assistance of counsel by failing to object to the sentence as imposed. --------
DISPOSITION
The judgment is modified to strike the stalking conviction (§ 646.9, subd. (a)) and its associated sentence. The trial court is directed to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.