Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F14023
RUSHING, P.J.
Defendant Jay Dee Freeman appeals a judgment entered after he pleaded guilty to one count of receiving stolen property (Pen. Code, § 496, subd. (a)), and admitted a prior prison term allegation (§ 667.5, subd. (c)). The trial court suspended imposition of sentence, and placed defendant on four years probation with various terms and conditions, including that he complete the residential treatment program at City Team Program. Defendant filed a timely notice of appeal and the trial court granted defendant’s request for a certificate of probable cause.
All further unspecified statutory references are to the Penal Code.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief that stated the case and the facts, but raised no specific issues. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we notified defendant of his right to submit written argument on his own behalf within 30 days. We received a supplemental brief from defendant arguing that the trial court violated the terms of the plea agreement by imposing four years of probation instead of the three years he asserts were promised in exchange for his plea. Defendant asked this court to modify his probation to a three-year term.
After independently reviewing the entire record and the supplemental brief filed by defendant, we asked counsel for further briefing on the following issues: (1) Was defendant entitled to the benefit of the plea bargain, including three years probation, despite not being accepted in Delancey Street? Or, was acceptance into the Delancey Street program a condition precedent to the plea bargain? (2) If, not, did the court err in not providing the defendant an opportunity to withdraw his plea to imposing a probation order which did not comport with the plea bargain? (3) Was defendant’s proposal to complete City Team as a condition of probation an implied waiver of his right to withdraw his plea?
Statement of the Case
Pursuant to a negotiated disposition, defendant entered a plea of guilty to one count of receiving stolen property (§ 496, subd. (a)), and admitted a prior prison term allegation (§ 667.5, subd. (c)), in exchange for the dismissal of one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), one count of identity theft (§ 530.5, subd. (a)), and one count of acquisition of a stolen credit card (§ 484e, subd. (1)). Before defendant entered his plea, the court represented that it would suspend imposition of sentence, and order defendant to complete three years of probation if defendant was accepted into the Delancey Street program. When asked by defendant’s counsel what would happen in the event defendant was not accepted into the Delancey Street program, the court said that all sentencing options were available, including a commitment to the Department of Corrections for two years.
Defendant was not accepted into the Delancey Street Program. Instead, defendant was accepted into the City Team Program. The court accepted defendant’s alternative placement into the City Team Program, granted defendant 151 days of actual credit for time served in custody, and ordered defendant to complete four years of probation. The court did not grant defendant additional conduct credits pursuant to section 4019, and did not offer defendant an opportunity to withdraw his plea.
Discussion
Defendant asserts the trial court erred in imposing a four-year probation term, because it violates his plea agreement. In addition, defendant asserts the trial court failed to correctly calculate defendant’s custody credits under section 4019.
Imposition of Four-Year Term of Probation
Negotiated plea agreements, such as the one in this case, 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.)
“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.] Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.]” (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; 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.)
Our review of the colloquoy among the court, the prosecutor and the defense attorney at the time defendant entered his plea shows that the parties clearly contemplated an agreement whereby defendant would plead guilty to one count of receiving stolen property (§ 496, subd. (a)), and admit a prior prison term allegation (§ 667.5, subd. (c)), in exchange for the prosecutor’s dismissal of one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), one count of identity theft (§ 530.5, subd. (a)), and one count of acquisition of a stolen credit card (§ 484e, subd. (1)). The parties acknowledged that the planned disposition of defendant’s case would be suspension of imposition of sentence and placement on three-years of probation with acceptance into and completion of the Delancey Street program as a condition of probation. Importantly, the court made no representations to defendant about what his sentence would be if he was not accepted into Delancey Street. Specifically, when defendant’s attorney asked what would happen if he was not accepted to Delancey Street, the court stated: “Then he would be sentenced here. He’s already—we’ve already discussed various options that he has. The Department of Corrections for two years, other programming, all of those things are open to him.”
The record reflects that the court only made one certain representation to defendant regarding the disposition of defendant’s case—that in the event he was accepted into the Delancey Street Program he would be placed on three years of probation. Beyond that, the court’s representation to defendant was clear that if he was not accepted into Delancey Street, all options for sentencing would be on the table, including a two-year commitment to the Department of Corrections. As such, we view defendant’s acceptance into Delancey Street not as a condition precedent to the plea bargain itself, but rather as a condition precedent to his receipt of the three-year probationary term. The court was very clear that a three-year term would be ordered if defendant was accepted into the program; without the program, there was no promise of any term of probation. Because defendant was not accepted to Delancey Street, the court had the option of ordering a longer term of probation, or, in the alternative, sentencing defendant to two years in the Department of Corrections. The court’s imposition of a four-year period of probation did not violate the terms of the plea bargain, and, in our view, abided by the terms of the agreement. (See, e.g., People v. Walker, supra, 54 Cal.3d at p. 1024.)
Because the court did not violate the terms of defendant’s plea bargain by imposing a four-year period of probation, the court was under no obligation to provide defendant an opportunity to withdraw his plea. As discussed above, the court did not impose a significantly greater punishment than that promised in the plea bargain. Therefore, the court was not required to give defendant an opportunity to withdraw his plea before it imposed the four-year term of probation. (People v. Walker, supra, 54 Cal.3d at p. 1024 .)
Conduct Credits Pursuant to Section 4019
Defendant asserts the trial court erred in not awarding him custody credits earned pursuant to section 4019. On appeal, defendant argues this court should modify the judgment to add the credits defendant earned while in custody.
The Attorney General does not address defendant’s argument regarding conduct credit pursuant to section 4019.
At the time of sentencing in this case, the court awarded defendant 151 days of actual time in custody, but did not award any conduct credits pursuant to section 4019. Section 4019, subdivision (a)(4), states: “ (a) The provisions of this section shall apply . . . [¶] . . . [¶] When a prisoner is confined in a county jail . . . following arrest and prior to the imposition of sentence for a felony conviction.” Subdivision (b) provides that “for each six-day period in which a prisoner is confined in or committed to a [county jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned . . . .” Subdivision (c) provides that “[f]or each six-day period in which a prisoner is confined in or committed to a [county jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established . . . .” Furthermore, subdivision (e) provides: “No deduction may be made under this section unless the person is committed for a period of six days or longer.” Moreover, subdivision (f) provides: “It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”
In order to properly calculate conduct credits, the court divides the number of actual days by four, rounds down to the nearest whole number, and then multiplies by two. (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.)
Here, defendant spent 151 days in custody. Under the formula, he was entitled to an additional 74 days of conduct credit: 151 divided by four and rounded down equals 37, multiplied by two equals 74. Here, the trial court only awarded defendant his actual credit; no conduct credits were awarded. Thus, the judgment must be modified to reflect the proper amount of credit due to defendant.
Disposition
The judgment is modified to reflect a total of 225 days of credit, 151 days of actual custody and 74 days of conduct credit. As modified, the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.