Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FSB800063, Michael M. Dest, Judge.
Cindi B. Mishkin, 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, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant pled guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (count 1) and possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 2). He also admitted that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). In return, defendant was given an indicated sentenced of two years on count 1, a concurrent term of two years on count 2, and the dismissal of the prior prison term enhancement pursuant to Penal Code section 1385. Defendant was sentenced in accordance with the indicated sentence. The court also found that a motor vehicle was used in the commission of the crimes pursuant to Vehicle Code section 13202, subdivision (a), and ordered the Department of Motor Vehicles (DMV) to suspend or revoke defendant’s driving privileges.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) the trial court exceeded the terms of its indicated sentence when it ordered the DMV to suspend or revoke his driving privileges, and (2) specific performance is warranted. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report, which the parties stipulated contained a factual basis for the plea.
On January 2, 2008, defendant was stopped by a police officer for having an expired vehicle registration. Upon contacting defendant, the officer discovered defendant was deaf and was on parole. A search of defendant’s person and vehicle revealed a clear plastic bag containing methamphetamine, a small black digital scale, and several pieces of paper containing messages relating to narcotics sales. Defendant was arrested and charged with transportation of methamphetamine and possession of methamphetamine for sale. The complaint also alleged that defendant had previously served a prior prison term.
On January 15, 2008, defendant entered a plea to the court and executed a written plea form memorializing the indicated sentence set forth by the court. The plea form showed an indicated sentence of two years in state prison. The court reviewed the written plea form with defendant and inquired of defendant whether he had personally placed his initials “in the boxes to the right of each paragraph after reading and understanding and discussing each paragraph with your lawyer and [sign language] interpreter?” Defendant responded in the affirmative. The court also asked defendant whether he had carefully reviewed the plea form before signing the document; whether he understood everything on the form; and whether he understood each of the constitutional rights “and other rights enumerated” in the plea form and “all penalties and punishments for the offense . . . .” Defendant again responded in the affirmative. The court then explained all the rights defendant was waiving by pleading guilty.
The People did not approve or sign the plea to the court.
The court thereafter stated, “My understanding of the plea agreement is as follows: [¶] You’re going to be pleading guilty as charged in the complaint. You’re going to be pleading guilty to . . . transportation of a controlled substance, . . . possession for sale of a controlled substance, . . . and you’re going to admit that you have a prior prison term . . . . [¶] In return for that plea and admission, I have agreed that I would sentence you on Count No. 1 to the low term of two years. [¶] On Count No. 2, I would give you the middle term of two years, concurrent, and I have agreed to strike the [prior prison term] pursuant to [Penal Code section] 1385 in the interest of justice. [¶] So your total sentence would be two years with credit for 14 days actual, six conduct, for a total of 20 days. And in Case No. MVA043082, on that case, I will revoke and terminate probation.” In response to the court’s question of whether that was his understanding of the plea agreement, defendant responded, “Yes.”
The court again asked defendant whether he had enough time to discuss his case with his attorney and interpreter including all of his “rights, potential defenses, penalties, punishments, and future consequences as a result of entering this plea[.]” Defendant replied, “Yes.” The court also again inquired of defendant whether he understood all of his “rights, penalties, punishments, future consequences, and potential defenses.” Defendant again stated, “Yes.” The court thereafter informed defendant of the immigration consequences in pleading guilty. The court did not mention that his driving privileges would be revoked or suspended by pleading guilty.
Paragraph 6e in the plea form notes “If a motor vehicle is found to be involved or incidental to the commission of the offense, my driving privileges may be revoked by the court and/or Department of Motor Vehicles.” (Bold type and capitalization omitted.) Unlike the others, the box pertaining to this paragraph was not initialed by defendant but was marked with an “X.”
Defendant requested immediate sentencing after the court found that he had freely, voluntarily, knowingly, and intelligently pled guilty. The court then found that a motor vehicle was involved in the commission of the offenses and ordered the DMV to suspend or revoke defendant’s driving privileges. Defendant was otherwise sentenced in accordance with the plea agreement.
On January 28, 2008, defendant, in propria persona, filed a notice appeal “based on the sentence or other matters occurring after the plea.” Defendant did not obtain a certificate of probable cause.
II
DISCUSSION
Defendant contends the trial court exceeded the terms of its indicated sentence when it ordered the DMV to suspend or revoke defendant’s driving privileges.
To establish the proper framework for our analysis, we first briefly review the principles that govern plea bargains and indicated sentences.
Negotiated plea agreements are “‘an accepted and integral part of our criminal justice system.’ [Citations.] Such agreements benefit the system by promoting speed, economy and finality of judgments. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 79-80.)
To quote the California Supreme Court: “The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.]” (People v. Orin (1975) 13 Cal.3d 937, 942.)
Traditionally, courts have viewed plea agreements “using the paradigm of contract law. [Citations.]” (People v. Nguyen (1993) 13 Cal.App.4th 114, 120 [waiver of appeal rights].) Employing the contract law paradigm, our state’s high court has said, “When a guilty 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.” (People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker); accord, People v. Panizzon, supra, 13 Cal.4th at p. 80.) The state thus must “keep its word when it offers inducements in exchange for a plea of guilty.” (People v. Mancheno (1982) 32 Cal.3d 855, 860.)
In addition to their contractual qualities, plea agreements also have a constitutional dimension. A criminal defendant’s constitutional due process right is implicated by the failure to implement a plea bargain according to its terms. (People v. Mancheno, supra, 32 Cal.3d at p. 860; Walker, supra, 54 Cal.3d at p. 1024.) A defendant may acquiesce in punishment that exceeds the agreed terms of his plea, but his failure to object will not constitute acquiescence if the court taking his plea fails to comply with section 1192.5. (Walker, at p. 1025.) That statute requires judicial advisement of the defendant’s right to withdraw the plea if the sentence imposed is more severe than that called for in the plea bargain.
In analyzing claims of plea bargain violations, courts distinguish between two facets of plea taking: advisements and agreement. Each gives rise to a different inquiry, though the two aspects are sometimes confused. With respect to the first facet, the question is whether the court properly advised the defendant concerning plea consequences. With respect to the second facet, the question is whether specific terms or consequences became part of the plea bargain. (See In re Moser (1993) 6 Cal.4th 342, 353 [erroneous advisement concerning period of parole]; People v. McClellan (1993) 6 Cal.4th 367, 375 [failure to advise concerning sex offender registration requirement].) As the California Supreme Court explained in its seminal decision in Walker, the two are “related but distinct legal principles.” (Walker, supra, 54 Cal.3d at p. 1020.)
While a plea bargain thus generally involves negotiation between the People and the defendant, an indicated sentence is a unilateral proposal made by a court with sentencing discretion. (See, e.g., People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276.) “In an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed. No ‘bargaining’ is involved because no charges are reduced. [Citations.] In contrast to plea bargains, no prosecutorial consent is required. [Citation.]” (People v. Allan (1996) 49 Cal.App.4th 1507, 1516.) Here, the prosecution did not agree to the terms of the plea, and the plea was an open plea to the court. Hence, the principles of an indicated sentence apply.
Defendant claims the trial court violated its agreement with him and was in excess of the indicated sentence, which did not include the driving privileges consequences. The People respond defendant waived this issue by failing to object below and, in the alternative, claim defendant cannot show he was prejudiced by the court’s deviation from the indicated sentence.
Defendant replies that the People mischaracterize his claim of error, and therefore waiver does not apply. Defendant asserts that “because the revocation of the driver’s license as a potential consequence of the plea was specifically not acknowledged as a consequence of the plea by [defendant], his attorney, or the court, the indicated sentence contained the implied term such revocation would not occur.” Therefore, defendant argues the court improperly deviated from the indicated sentence when it ordered the driving privileges suspended.
As explained above, an indicated sentence from the court is not a plea bargain with defendant. In other words, there was no agreement or bargained-for terms between defendant and the court. Rather, the trial court merely indicated to defendant what its sentence would be on a given set of facts without interference from the prosecutor based on defendant pleading guilty to the sheet. (See People v. Superior Court (Felmann), supra, 59 Cal.App.3d at p. 276.) Accordingly, since this is not a plea bargain and there is no indication in the record that the license suspension or the other collateral fees and fines were ever part of the discussion between the court and defendant, we cannot find that the court deviated from the indicated sentence when it ordered defendant’s driving privileges suspended. We cannot accept defendant’s speculation that this term was an implied term by the court and defendant. In fact, there are no negotiations involved in indicated sentences. The expression “indicated sentence” refers to the sentence which, at the time the court accepts a plea of guilty, it intends or is inclined to later impose if a given set of facts were proved. (Ibid.) An indicated sentence thus embodies no promise that it necessarily will be imposed.
In addition, even if we conclude defendant was not adequately advised of the driving privileges consequence under the indicated sentence, the failure to give such an advisement is not reversible per se. An uninformed waiver of specified constitutional rights does not necessarily render a plea or admission involuntary. Such a plea or admission need not be set aside if the “totality of the circumstances” delineated in the record affirmatively demonstrates that the plea was voluntary and intelligent. (People v. Howard (1992) 1 Cal.4th 1132, 1178.) Moreover, an uninformed waiver based on the failure of the court to advise an accused of the driving privileges consequences of a plea does not violate any constitutional rights, but merely a judicially declared rule of criminal procedure. (Walker, supra, 54 Cal.3d at pp. 1022-1023.) Such a failure to advise therefore requires reversal only if the error is prejudicial to the accused. (Ibid.) Thus, defendant must demonstrate that it is reasonably probable he would not have entered his plea to the court if he had been told of the potential revocation of his driving privileges. There is no indication in the record that defendant can meet this burden.
Furthermore, the error in omitting such an advisement is waived if objection is not made at or before sentencing. The purpose of the general doctrine of waiver is to encourage parties to bring objections to the attention of the trial court so that they may be avoided or cured. “Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is ‘reasonably probable’ the defendant would not have pleaded guilty if properly advised.” (Walker, supra, 54 Cal.3d at p. 1023; see also People v. Melton (1990) 218 Cal.App.3d 1406, 1408-1409.) It is therefore significant that defendant did not move to withdraw his plea at the time of sentencing. (see, e.g., People v. Vento (1989) 208 Cal.App.3d 876, 879-880 [where the defendant was not informed at the time he entered his plea that the probation he desired was statutorily disfavored, the appellate court considered the defendant’s failure to later move to withdraw his plea an indication that he was not surprised by the prison term imposed and did not feel the plea bargain was being breached either in letter or spirit].)
Defendant argues that the harmless error principles enunciated in Walker are inapposite here because this case is more akin to a “‘violation of the plea bargain . . . .’” We disagree.
In People v. Crandell (2007) 40 Cal.4th 1301, the prosecutor did not mention a restitution fine when he recited the plea agreement. However, in advising the defendant of the consequences of the plea, the trial court informed him that he would have to pay a restitution fine of a minimum of $200 and a maximum of up to $10,000. The defendant acknowledged this consequence and indicated that no other promises had been made. (Id. at p. 1305.) The court imposed a $2,600 restitution fine. (Id. at p. 1306.) Our Supreme Court held that the imposition of the fine did not breach the plea agreement because the trial court accurately advised the defendant that he would be required to pay restitution. (Id. at p. 1310.) Thus, in entering his plea, the defendant “could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed.” (Ibid.)
The Crandell court discussed, too, its prior opinion in Walker, supra, 54 Cal.3d 1013. The court held in Walker that a plea bargain which does not correspond to the defendant’s expectations may come about either through (1) a violation of the plea agreement or (2) a failure to advise the defendant of the consequences of the plea. (Id. at p. 1020.) “[T]he nature of the rights involved and the consequences of a violation differ substantially” between the two forms of error. (Ibid.) A violation of the plea agreement is not subject to harmless error analysis because it strikes at “‘“the honor of the government[,] public confidence in the fair administration of justice, and the efficient administration of justice . . . .”’ [Citation.]” (Id. at p. 1026.) A mere failure to advise the defendant of all the consequences of his plea, on the other hand, is subject to harmless error analysis because the requirement to advise the defendant of plea consequences “is not constitutionally mandated. Rather, the rule compelling such advisement is ‘a judicially declared rule of criminal procedure.’ [Citation.]” (Id. at p. 1022.) This type of error “is waived absent a timely objection.” (Id. at p. 1023.) Because no objection was made to the possible driving privileges consequences at sentencing, defendant necessarily argues that its imposition violated the terms of his plea agreement, and not simply that the court’s admonitions concerning the plea consequences were deficient.
According to both Crandell and Walker, a critical factor differentiating a violation of the plea bargain from a failure to advise the defendant of the consequence of the bargain is that a violation of the plea depends in some “‘“significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration”’” to plead guilty. (Walker, supra, 54 Cal.3d at p. 1024, quoting Santobello v. New York (1971) 404 U.S. 257, 262 [92 S.Ct. 495, 30 L.Ed.2d 427].) In Santobello, a prosecutor promised not to make a sentencing recommendation in exchange for the defendant’s agreement to plead guilty. When sentencing took place, however, a new prosecutor was handling the case and recommended that the judge impose the maximum sentence. (Santobello, at p. 259.)
Similarly, in People v. Mancheno, supra, 32 Cal.3d 855 a defendant pled guilty in exchange for the prosecutor’s promise that he would be involved in a diagnostic study as part of his sentence. (Id. at p. 859.) The sentence imposed, however, contained no reference to the diagnostic study. (Ibid.)
As a further example, in People v. McClellan, supra, 6 Cal.4th 367 the trial court failed to notify the defendant that pleading guilty to a charge of assault with intent to commit rape would require him to register as a sex offender. (Id. at p. 372.) The Supreme Court concluded that the imposition of the registration requirement was not a violation of the plea agreement because “defendant does not suggest that the challenged element of his sentence was a subject of negotiation (or even discussion) during the plea-negotiation process, or that the prosecutor made any promises or inducements relevant to the challenged element. [Citation.]” (Id. at p. 379.) The mere omission of an advisory on the court’s part at the plea hearing, “did not transform the court’s error into a term of the parties’ plea agreement.” (Ibid.)
In addition to Crandell, the Walker decision was also discussed by our Supreme Court in In re Moser, supra, 6 Cal.4th 342. The Moser court explained, “In concluding that the imposition of such a substantial fine constituted a violation of the plea agreement in Walker, we implicitly found that the defendant in that case reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed.” (Id. at p. 356.) This important inference was supported by the fact that in Walker, the sentencing took place just moments after a plea was placed on the record during which no mention was made of restitution. (Walker, supra, 54 Cal.3d at p. 1019.)
This case is also clearly different from People v. Clark (1992) 7 Cal.App.4th 1041. There, the defendant’s written change of plea form noted that he had been “‘promised’” he would be sentenced to “‘[p]robation and no more than 6 [months] jail provided diversion was successfully completed’” (Id. at p. 1044, italics omitted.) Here, by contrast, neither the prosecution nor the court made any promise that defendant’s driving privileges would not be suspended at sentencing. Therefore, while the Clark court concluded that the terms of the defendant’s plea were violated, the same cannot be said here.
Thus, a broken promise, essential to the outcomes of Clark, Walker, Santobello, and Mancheno, is absent in defendant’s case. The prosecution made no specific offer related to the sentence or defendant’s driving privileges. Likewise, there is no indication in the record that the court made a “promise” that defendant’s driving privileges would not be suspended. Like the defendant in McClellan, he may have been unaware of the full consequences of his plea, but he was not affirmatively misled in any manner by the prosecution or the court.
If there was error, it was in the failure to advise defendant of the plea’s consequences, an error that was waived when defendant failed to raise any objection to the suspension of his driving privileges at sentencing. To that extent, any defect in the admonitions or advisements he received are deemed waived. (Crandell, supra, 40 Cal.4th at pp. 1307-1308.)
Relying heavily on People v. Arata (2007) 151 Cal.App.4th 778 (Arata), defendant nonetheless argues that the court violated its promise by suspending his driving privileges because there was an “implicit term” of his plea that “the court would not order revocation of his driving privileges.” In Arata, the defendant pleaded guilty in 1996 to violating section 288, and the court placed him on probation. (Arata, at p. 781.) “In 1997, the Legislature amended section 1203.4 to make section 1203.4 relief unavailable to those convicted of certain sex offenses, including a violation of section 288. [Citation.]” (Id. at p. 783.) The defendant contended that he was advised of the promise of 1203.4 relief before he pleaded guilty and that he relied on that promise; he moved for section 1203.4 relief, claiming he sought to enforce his plea bargain. (Arata, at p. 781.) To support this argument, the defendant submitted two declarations. The defendant’s declaration stated that he discussed his plea agreement with his trial counsel and that counsel told him that if he completed probation, he would be able to withdraw his plea and have his case dismissed pursuant to section 1203.4. (Arata, at pp. 781-782.) Trial counsel’s declaration averred that it was his habit and custom to discuss section 1203.4 relief with his clients and that “[t]he advisement of section 1203.4 relief appeared on the probation papers and these would have been discussed with defendant.” (Arata, at p. 782.) The trial court denied the motion, and defendant appealed. (Ibid.)
On appeal, the defendant contended that retroactive application of the amended version of section 1203.4 to his case violated his plea bargain and his right to due process because “he entered his plea of guilty with the understanding that after successful completion of probation, he would be permitted to withdraw his plea and the court would dismiss the information.” (Arata, supra, 151 Cal.App.4th at p. 786.) The Arata court agreed. It determined that section 1203.4 relief was an implied term of the defendant’s plea bargain (Arata, at p. 787) and that denial of relief pursuant to that statute was “significant in the context of the entire plea bargain.” (Id. at p. 788.) According to the court, “defendant’s plea rested in a significant degree on the promise of eventual section 1203.4 relief” and, as a result, “such promise must be fulfilled. [Citation.]” (Ibid.) Unlike the defendant in Arata, defendant has not established that the possible suspension of his driving privileges was a significant term of his plea to the court. He has not established that the court had promised him this term would not be imposed by the court or that this term was even part of the plea to the court. Unlike Arata, in which the court found that an “implied term[]” of the plea bargain was that a state law afforded expungement relief would remain available to the defendant after his plea (id. at p. 787), in this case, there is no basis for concluding that the plea to the court contains either an express or implied promise of no suspension of driving privileges if a motor vehicle was involved. In addition, in contrast to the defendant in Arata, defendant did not submit any evidence to support his claim. As a result, defendant cannot demonstrate that the revocation of his driving privileges was “significant in the context of the entire plea [to the court].” (Id. at p. 788.)
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.