Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 05WF3635, Richard M. King, Judge.
Susan S. Bauguess, 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, Barry J.T. Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Omar Carvallo Delgado was placed on probation pursuant to Penal Code section 1210.1 following his arrest for possession of a controlled substance. Defendant violated the terms of his probation, and the trial court revoked probation and imposed a prison sentence. Defendant raises three challenges to his sentence on this appeal.
First, defendant argues, and the Attorney General agrees, that defendant had served two, not three, prior prison terms for previous convictions for possession of a controlled substance. One of the prior prison term enhancements must be deleted from the judgment.
Second, defendant argues his plea agreement prohibited the trial court from imposing a prison sentence on his prior prison term enhancements, because a part of the plea agreement stated, “Priors Stricken for Sentencing Purposes.” The Attorney General counters by highlighting the plea agreement’s language that the maximum period of imprisonment if defendant violated the terms of his probation would be six years in prison—a term necessarily including defendant’s prior prison term enhancements. In considering the entirety of the plea agreement’s language, and adhering to the rule of law that ambiguities in a plea agreement are construed in favor of the defendant, we conclude the imposition of sentence on the remaining prior prison term enhancements should be stricken.
Finally, defendant argues the trial court abused its discretion by revoking his probation and imposing a prison sentence. The court had the statutory authority to revoke defendant’s probation due to his non-drug-related probation violation. Given defendant’s lengthy history of criminal activity and poor performance on probation, we find no abuse of discretion by the trial court in imposing sentence.
Statement of Facts and Procedural History
Defendant was charged with a single count of cocaine possession. (Health & Saf. Code, § 11350, subd. (a).) The felony complaint alleged defendant had suffered three prior convictions for possession of a controlled substance, for which he had served prison terms. On January 3, 2006, defendant pleaded guilty and admitted the prior prison term allegations. Imposition of sentence was suspended, and defendant was placed on three years’ formal probation on the condition he complete a drug treatment program under Penal Code section 1210.
Defendant first met with his probation officer on January 26, 2006. Defendant failed to report and drug test on February 14, 2006, but called to state he was sick and wanted to reschedule. He was told to bring documentation of his illness the next time he reported, but he did not do so. Defendant also failed to report and drug test on April 4, 2006, and did not call his probation officer to explain his absence.
On April 24, 2006, defendant was arrested for inflicting injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), threatening a crime with the intent to terrorize (id., § 422), assault with a deadly weapon (id., § 245, subd. (a)(1)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). While being transported to the police station, defendant blurted out that if he had not used heroin and speed, he would not have lost his temper.
A petition for arraignment on probation violation was filed on May 18, 2006, alleging defendant had violated the terms of his probation by violating the law on April 24, 2006; failing to report to his probation officer on February 14 and April 4, 2006; and also failing to drug test on February 14 and April 4. Following a contested hearing, defendant was found in violation of his probation. The trial court determined defendant was not suitable for probation. (Cal. Rules of Court, rule 4.414(b)(1) & (2).) Defendant was sentenced to a total of five years in state prison—the midterm of two years on the drug possession charge, plus one additional year for each of the three prison priors. Defendant timely appealed.
Discussion
I.
The abstract of judgment should be corrected to reflect two, not three, prison priors.
Defendant argues, and the Attorney General agrees, that one of the three prior prison enhancements for which defendant was sentenced was unauthorized.
The felony complaint alleged defendant had served three prior prison terms, and defendant admitted in his plea agreement he had been to prison on three prior occasions for convictions under Health and Safety Code section 11350, subdivision (a): Orange County Superior Court case No. 00CF1445, date of conviction February 7, 2001; case No. C95833, date of conviction May 8, 1996; and case No. 92CF02614, date of conviction December 24, 1992. The May 8, 1996 “conviction,” however, was for a parole violation following defendant’s prison term in case No. 92CF02614. Defendant’s probation report for the present case contains the following explanation: “Regarding [case No. 92CF02614], according to the records of the Orange County Superior Court, Orange County District Attorney’s Office, and Orange County Probation Department, on December 24, 1992, the defendant was convicted of a violation of Section 11350(a) of the Health and Safety Code, in Orange County Superior Court Case C-95833. However, the defendant’s CII record reflects this as Case 92CF02614. In addition, regarding [case No. C95833], according to the aforementioned records, including the defendant’s CII record, on May 8, 1996, the defendant sustained a parole violation in Case C-95833.”
CII is the California Identification Index. (See People v. Martinez (2000) 22 Cal.4th 106, 121.)
We agree that one of the prior prison term enhancements must be deleted, and the abstract of defendant’s judgment amended accordingly.
II.
Under the terms of the plea agreement, the trial court could not impose sentence for defendant’s prior prison term enhancements.
Defendant next argues the terms of his plea agreement prohibited the trial court from imposing sentence on the two remaining prior prison term enhancements.
On the plea agreement, defendant initialed box 2, to which the corresponding paragraph provides: “I understand that I am pleading guilty, and admitting the following offenses, special punishment allegations, and prior convictions, carrying the possible penalties as follows.” The plea agreement then noted the total penalty defendant could receive would be six years, including one year for each of the priors. Defendant also initialed paragraph 17(c) of the plea agreement, which provides: “Proposed disposition: I understand the court will: . . . [¶] . . . [¶] . . . Grant me probation under the terms and conditions set forth on the attached page 5 that I have initialed and signed. I understand I have the right to reject probation and have the court impose a final sentence. However, I agree to accept probation on the terms and conditions set forth on the attached page 5. I further understand that if I am found in violation of any of the terms or conditions of probation, the court may sentence me to state prison on this case for a maximum period of 6 years and 0 months.”
On a separate form entitled “Admission of Prior Convictions and Prior Prison Terms [¶] Superior Court of California, County of Orange,” defendant admitted the three prior prison terms alleged in the felony complaint, which could be used to increase his sentence by a total of three years. Defendant initialed box 3 of that form, to which the corresponding paragraph reads: “I understand that if I admit the prior conviction(s) and prior prison term(s) set forth in paragraph 1 of this form, my admission will have the effect on my sentence as indicated on line 2, the reverse side of this form or as set forth below. I offer this form as a factual basis for my admission(s). [¶] . . . (Effect on sentence other than that indicated on line 2 and reverse side of form) [¶] Priors Stricken for Sentencing Purposes.”
Defendant argues the language “Priors Stricken for Sentencing Purposes” precluded the trial court from imposing a one-year sentence for each of defendant’s priors following his probation violation. The Attorney General does not specifically address this language. Instead, the Attorney General focuses on the other language of the plea agreement, explaining the trial court had the authority to sentence defendant to a maximum of six years if he violated probation. The Attorney General explains the language of the separate admission form as follows: “The plea agreement only contemplated that the prison priors would not be imposed during the period of Proposition 36 probation.” But there is nothing in the record to support this explanation.
In interpreting the plea agreement, we follow and apply these rules: “Courts have traditionally viewed [plea agreements] using the paradigm of contract law. [Citations.] Using that analogy, courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations. [Citations.]” (People v. Nguyen (1993) 13 Cal.App.4th 114, 120, fn. omitted.) “[P]lea agreements are interpreted according to the general rule ‘that ambiguities are construed in favor of the defendant. Focusing on the defendant’s reasonable understanding also reflects the proper constitutional focus on what induced the defendant to plead guilty.’ [Citation.]” (People v. Toscano (2004) 124 Cal.App.4th 340, 345.)
The two parts of the plea agreement are in direct conflict. One states that the maximum term of imprisonment is six years, which would necessarily include one year for each of the three prior prison term enhancements; the other states the prior prison term enhancements would be stricken for purposes of sentencing. Given the totality of the language from the plea agreement set forth ante, we must conclude defendant’s reasonable expectation would be that, if he was to be sentenced, the prior prison terms would be stricken. As defendant correctly notes, the prison priors were not required to be stricken to permit defendant to participate in a drug treatment program pursuant to Penal Code section 1210 et seq. The only way the phrase “Priors Stricken for Sentencing Purposes” can have any meaning is if it precludes the trial court from increasing defendant’s sentence based on the priors if and when sentence is imposed.
The Attorney General does not raise any argument that the prior prison term admission form is not a part of the formal plea agreement.
The trial court imposed the midterm sentence of two years, and explained its reasons for doing so: “The court, in looking at the California Rules of Court having to do with [rule] 4.420, which is selecting the lower, middle or upper, the court cannot find in this case that either the factors of aggravation outweigh the factors of mitigation, or that the factors of mitigation outweigh the factors of aggravation, and as a consequence, the court will select the midterm which . . . is two years.”
Thus, the trial court found that the midterm sentence is the appropriate sentence and stated its reasons for doing so. We abide by that determination. In view of the plea agreement’s provision that the priors must be “Stricken for Sentencing Purposes,” we direct the trial court to modify defendant’s sentence by striking imposition of the two one-year sentences for the remaining two prior prison term enhancements. The result is a prison sentence of two years. We further direct the trial court to amend the abstract of judgment accordingly.
III.
The trial court did not abuse its discretion when it refused to reinstate probation.
Finally, defendant argues the trial court abused its discretion when it refused to reinstate his probation. Penal Code section 1210.1, subdivision (f)(1) provides that the trial court may revoke probation under Proposition 36 if a probation violation is proven; the defendant may then “be incarcerated pursuant to otherwise applicable law without regard to the provisions of this section.” Section 1201.1, subdivision (f)(2) gives the trial court discretion to determine whether to reinstate a defendant’s probation, to modify a defendant’s probation terms, or to revoke probation and order the defendant incarcerated, when the defendant “violat[es] a non-drug-related condition of probation.” Section 1210.1, subdivision (f)(2) applies here because defendant violated a non-drug-related probation condition—the condition that he not violate any laws—by committing the crimes leading to his April 2006 arrest.
Both defendant and the Attorney General cite us to Penal Code section 1210.1, former subdivision (e)(1) and (2) regarding the revocation of probation due to the violation of a non-drug-related condition of probation. Penal Code section 1210.1 was amended in 2006, and the correct citation is now Penal Code section 1210.1, subdivision (f)(1) and (2). (Stats. 2006, ch. 63, § 7.)
Defendant contends the trial court abused its discretion by relying on People v. Wandick (2004) 115 Cal.App.4th 131 (Wandick)as a basis for imposing a prison sentence. At defendant’s sentencing hearing, the trial court said: “The court will also conclude that the facts of the probation violation w[ere] not drug-related, and under the authority of Wandick, the court is going to do a state prison commitment.”
Wandick is not directly on point. In that case, the defendant was convicted of a violation of Health and Safety Code section 11350, subdivision (a)—possession of cocaine base. (Wandick, supra, 115 Cal.App.4th at p. 132.) Before his sentencing on the possession charge, the defendant committed grand theft and was sentenced to two years in prison on that charge. (Id. at p. 134.) The appellate court concluded the defendant’s grand theft conviction made him ineligible for probation under Penal Code section 1210.1, despite his failure to literally fall within any of the exceptions listed in section 1210.1, subdivision (b). (Wandick, supra, 115 Cal.App.4th at p. 134.) “[D]efendant’s commission of a nondrug felony while awaiting trial on his drug charge took him out of the class of nonviolent substance abusers for whom the voters intended rehabilitative treatment when they passed Proposition 36. [¶] According to the probation report, at the time he committed the present drug offense, defendant was already on informal probation for no fewer than five additional crimes. [¶] The purpose of the initiative was to get immediate help for nonviolent drug addicts, not to provide a ‘Get Out of Jail Free’ card to career criminals who also happen to partake of drugs. [Citation.] The trial court was not required to apply Proposition 36 literally where such application would plainly conflict with the intent of the statute. [Citation.]” (Id. at p. 135.)
The trial court in this case was applying Penal Code section 1210.1, subdivision (f), not subdivision (b). Certainly, though, the concept that Proposition 36 is not a “‘Get Out of Jail Free’” card for career criminals is applicable here. More importantly, the trial court did not need to rely on the authority of Wandick, supra, 115 Cal.App.4th 131 to refuse to reinstate or modify the terms of defendant’s probation. The clear language of Penal Code section 1210.1, subdivision (f)(1) and (2) gave the court all the authority it needed. The court’s reliance on a less useful authority does not mean the court abused its discretion.
Defendant also argues the trial court revoked his probation, at least in part, based on his three prior convictions resulting in prison terms. Defendant contends that if the court had considered only the two authorized prior convictions (see, ante, part I), it might not have revoked his probation. In considering whether to revoke defendant’s probation, the trial court was not limited to considering only the prior prison terms to which defendant had admitted. California Rules of Court, rule 4.414(b)(1) provides that the court may consider a defendant’s “[p]rior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct.” Defendant’s prior record of criminal conduct is substantial.
Defendant’s probation report notes, “the defendant is not new to the criminal justice system. His prior criminal history, which dates back to 1989, includes at least nine convictions, four of which are felonies. In addition, he has convictions for alcohol related offenses, drugs, theft, and domestic violence. Further, his prior criminal history reflects several deportations. Despite numerous grants of informal and formal probation, combined with two prior prison commitments, the defendant has not made any apparent attempts to curtail his illegal activity.” A summary of defendant’s most recent criminal activity is as follows:
January 1999: Assault with a deadly weapon and infliction of injury on a cohabitant
August 21, 1999: Shoplifting
October 6, 1999: Battery and making criminal threats
May 21, 2000: Possession of a controlled substance and drug paraphernalia
November 17, 2000: Sentenced to two years in prison for the possession charges
February 2, 2001: Sentenced to 365 days in jail for the battery and criminal threats charges
December 9, 2005: Deported from the United States
December 25, 2005: Possession of a controlled substance
January 3, 2006: Sentenced on possession charge; placed on probation
April 24, 2006: Infliction of injury on a cohabitant, making criminal threats, assault with a deadly weapon, and being under the influence of a controlled substance
Given defendant’s criminal history, the trial court did not abuse its discretion by revoking defendant’s probation and imposing a prison term.
Disposition
We modify the judgment and direct the trial court to (1) prepare an amended abstract of judgment deleting one of the prior prison term enhancements, and striking the imposition of sentence for the two remaining prior prison term enhancements, resulting in a sentence of two years in state prison; and (2) send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.