Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. Nos. FCR233213 & FCR246958
Haerle, Acting P.J.
I. INTRODUCTION
Antoinette Marie Dunn appeals following sentencing in a negotiated disposition of three criminal cases. She claims that it was an abuse of discretion, and breach of a plea agreement that the court would “consider” a category I residential treatment program, for the court to impose a prison term after she was rejected from such a program at Delancey Street. She urges that, even though Delancey Street was the sole program identified by the probation department as appropriate, a remand is required to determine Delancey Street’s reasons for rejecting her and to explore other sentencing options. We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Case No. FCR233213 arose from a warrant search at Dunn’s Fairfield residence on May 31, 2006. Officers found her in a bathroom reaching for folded towels that held cocaine base and a wallet. In the residence were 0.5 grams of cocaine base, a digital scale, packaging material, 0.4 grams of cocaine on a metal spoon, and cash. A resulting information charged one count of possession (Health & Saf. Code, § 11350, subd. (a)) plus six enhancing prison-term priors (Pen. Code, § 667.5, subd. (b)).
Case No. FCR239027 arose from a warrant search on January 3, 2007, at a later Fairfield residence. Police found cocaine, a large number of prescription narcotic pills, drug paraphernalia, marijuana and, in Dunn’s bedroom, .45 caliber ammunition and a safe containing methamphetamine.
Case No. 246958 arose from an August 15, 2007, warrant search of a third Fairfield residence for Dunn where officers found video surveillance cameras at the front door, a hand-held scanner, a replica firearm, a digital scale, packaging material, drug paraphernalia, and cash, some in Dunn’s bra. While handcuffed outside, Dunn complained of chest pain and, while being loaded into an ambulance, flailed her arms and legs as officers tried to inspect something protruding from her waistband. It proved to be a cylindrical container holding methamphetamine, heroin, cocaine and marijuana. Dunn was medically cleared at a hospital. A resulting felony complaint charged two counts of simple possession (counts 1 & 2; Health & Saf. Code, §§ 11351.5, 11351), two counts of possession for sale (counts 3 & 4; Health & Saf. Code, §§ 11351, 11378), plus two on-bail enhancements (Pen. Code, § 12022.1) and five prison-term priors (id., § 667.5, subd. (b)). Dunn pled not guilty to the charges and denied the enhancement allegations on May 1, 2007.
On October 5, 2007, under a plea agreement encompassing all three cases, Dunn entered changed pleas of no contest to the possession in the first case (No. FCR233213) and the count 2 possession in the last case (No. 246958), admitting one on-bail enhancement and five prison-term priors. All remaining counts and enhancements, plus the entire second case (No. 239027; the record not before us), would be dismissed with Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754). The court would additionally “consider a Category 1 residential treatment program, with a ten-year suspended sentence or, alternatively, . . . sentence [Dunn] to eight years in prison.”
A probation report prepared for the next hearing explored all facets of Dunn’s background and, while assessing her as “a highly marginal candidate for probation” and presumptively ineligible due to prior convictions (Pen. Code, § 1203, subd. (e)(4)), did find that “unusual circumstances may exist.” An extensive criminal history going back to 1978 included battery, firearm offenses, theft, prostitution, welfare fraud, drug offenses, five prison terms and parole violations, and now, three further drug use and sales offenses. Her abuse of alcohol and drugs had started at age 9 and now, at age 50, was unabated, with admitted regular use of drugs (rock cocaine, methamphetamine, heroin, marijuana, and any prescription medications she could get) and consumption of a liter of gin per day. She claimed that her current charges stemmed from activities carried on by others who kept her “ ‘drugged’ ” and unaware. She denied having an alcohol abuse problem but did admitt a drug abuse problem and said she would like to enter a long-term residential program, having tried and failed at this just once before. She was unemployed, had unstable housing, had ten adult children (none with criminal histories), and a history of sexual and other abuse that, according to a psychiatric evaluation, contributed to an eating disorder and post-traumatic stress disorder. She could benefit from therapy and substance abuse treatment. The probation department’s placement staffing committee had assessed her as “a marginal placement candidate and as only appropriate for the Category I Delancey Street Program.” Finding “some likelihood that she would respond favorably to treatment,” the report recommended a continuance of six weeks to allow Dunn to apply to that program and be screened, interviewed and assessed by program staff.
The report and attachments noted health problems. Dunn self-reported “failed health.” She was five feet four inches tall and weighed 300 pounds, had hypertension, swelling in the legs and feet, asthma, a history of seizures (likely alcohol-related and none since her last arrest), and had ceased taking seizure medications because she felt that they were causing the seizures.
At a hearing on November 19, the court followed the recommendation and granted the continuance. Defense counsel Leslie Prince expressed concern that Delancey Street was deemed the only suitable program: “My concern is that she has some health issues and I don’t know whether or not she is going to be accepted into Delancey Street for that reason. I think it would be unfair if she is forced to do [an eight-year] prison sentence because she has health issues because she is ineligible for Delancey. I think that would be an Americans with Disabilities Act violation.” “So I would ask,” she continued, “that the probation department screen her for placement in a residence [sic] treatment program, not just Delancey Street, and when we come back the Court can make the determination of whether or not those potential other residence treatment programs are appropriate.” The court replied, “I’m going to continue it. I am not going to ask them to investigate more. I will—if she is denied Delancey Street, I will want to know why. And if it turns out to be medical condition, we can address that at that point. [¶] But I think I have a pretty clear direction from probation as to what they think is best. And so I am going to stick with that. . . .”
On January 7, 2008, the court granted a further week’s continuance, apprised by an addendum that Dunn was to have a Delancey Street screening interview the next day. Defense counsel at that point added nothing more about other programs. Then an addendum of January 15 advised: “Information obtained from the Delancey Street Program on 1-10-08 indicates that the defendant was not accepted by their program. A specific reason for this denial was not provided by the program. Given the defendant’s non-acceptance, a recommendation for denial of probation will be respectfully submitted . . . .”
The next hearing was the sentencing on January 15, 2008. Citing primarily Dunn’s long prison record, the court denied probation and imposed the alternative eight-year term contemplated by the plea agreement. This was comprised of a midterm of three years for latest case plus two years for the on-bail enhancement, another three years for three of the prison-term priors (others being stricken), and a concurrent two-year midterm in the other case.
Defense counsel renewed her concern that rejection by Delancey Street may have been for “health issues,” thus violating the disabilities law and denying Dunn equal protection. Counsel asked that the matter be referred back to probation “to screen [Dunn] for some sort of residential treatment besides Delancey Street.” Reminded by the prosecutor that the reason for rejection was unknown, the court stated: “The plea form was Category I. [¶] The problem is this: We sent this to probation. Not only did the officer but the screening commit[tee] looked into it. And they felt that the only—they emphasize how marginal she is as a candidate for probation. And then they say the only possible program would be Delancey Street. [¶] And the first time they asked for a continuance—we ended up getting two continuances to make a legitimate try for Delancey Street, and it has been denied.”
Defense counsel said she “disagree[d]” that Delancey was the only appropriate placement. She mentioned only “Genesis House,” however, and gave no information about it nor identified it as a category I program. The court responded, “I am going to go ahead with sentencing,” and it did so. Dunn’s appeal claims breach of the plea agreement and abuse of discretion.
III. DISCUSSION
We first examine whether the court violated the terms of the plea agreement. “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
The pertinent plea term, as stated on the plea form Dunn initialed, was: “Ct will consider program (Cat I resid) w/10 yr susp’d sent,” an asterisk adding, “otherwise, 8 yrs SP.” As orally stated by Dunn’s own counsel at plea entry, it was this: “The Court will consider a Category I residential treatment program, with a ten-year suspended sentence or, alternatively, the Court will sentence her to eight years in prison,” to which the court responded, “That is correct.” That language is clear, requiring the court to “consider,” not guarantee or ensure, a category I program.
The court did this first by securing a probation report, which included a factual background unchallenged here, assessed Dunn as “a highly marginal candidate for a grant of probation,” related that “the Probation Department’s Placement Staffing committee” had assessed Dunn as “a marginal placement candidate and as only appropriate for the Category I Delancey Street Program,” and recommended that the court grant a six-week continuance “to allow for the defendant to write to the Delancey Street Program and to allow for Delancey Street staff to screen the defendant for their program.” Upon receipt of that report, the court granted the continuance, continued the matter for a seventh week to accommodate an interview for Dunn at Delancey Street, and resorted to the specified alternative plea term of eight years in state prison only after Delancey Street declined to accept her into its program.
We cannot agree with Dunn that the court’s agreement to “consider” a category I program required going beyond what the probation department and its placement staffing committee recommended. Implicit in the situation was that the court would rely on the expertise of the department and committee for an assessment of programs appropriate for Dunn. There is no indication in the record that the court was expected to dispute those recommendations or undertake an independent search for alternative placements. Thus, no breach of the plea agreement appears.
Whether the court abused its discretion, however, goes beyond the plea terms, to the full circumstances. This discretion “is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] Discretion is abused when [the ruling] ‘exceeds the bounds of reason, all of the circumstances being considered.’ [Citations.]” (People v. Warner (1978) 20 Cal.3d 678, 683.) The court is ultimately free to accept or reject, in full or in part, a probation report recommendation. (Ibid.) As with exercises of discretion generally, the possibility that a different judge might have ruled differently merely shows room for a reasonable difference of opinion, not an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655.)
We see no abuse of discretion. The record provides us with only surmise that there were other appropriate category I programs overlooked or ruled out or by the probation department. The defense never identified or applied for any, despite seven weeks of continuances, and counsel’s mention of “Genesis House” near the close of the sentencing hearing did not even identify it as a category I program, or otherwise. No abuse of discretion is shown, and Dunn’s appellate counsel does not attempt to give legal substance to trial counsel’s claims of equal protection or disability law violations.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.