Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F9541
SCOTLAND, P. J.
On November 3, 2006, police officers found defendant Samantha Franchette Jackson lying in a roadway. When they contacted her, she was disoriented and “having difficulty balancing.” She told them she had a seizure. The officers performed a parole search and found two baggies of cocaine.
Defendant pled guilty to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) and admitted she had served two prior prison terms (Pen. Code, § 667.5, subd. (b); further section references are to the Penal Code unless otherwise specified). Other counts were dismissed as part of the plea agreement. The court suspended the imposition of sentence, placed defendant on Proposition 36 probation (§ 1210.1), and ordered her to pay a $200 restitution fine (§ 1202.4) and a $200 probation fine to be effective if probation were to be revoked (§ 1202.44).
Defendant failed to appear for her initial Proposition 36 review hearing, and a bench warrant was issued for her arrest. On December 22, 2006, defendant appeared in court, in custody, and requested to “opt out” of Proposition 36 probation because she was on a parole hold in another case and would get her drug treatment through the parole process. The trial court granted her request.
On February 14, 2007, probation was revoked and reinstated on the condition that defendant serve 123 days in county jail, with credit for time served. The trial court reiterated the “[p]reviously ordered conditions,” including that defendant pay a $200 restitution fine (§ 1202.4).
In light of the fact defendant had also violated her parole and would be taken into custody by the Department of Corrections and Rehabilitation to serve six months in state prison for her parole violation, the trial court ordered her to report to the probation department immediately upon her release from prison.
On October 31, 2007, a petition for revocation of probation was filed, alleging that, on or about October 9, 2007, defendant had tested positive for cocaine use and that, on October 29, 2007, she possessed paraphernalia used for smoking controlled substances. The trial court summarily revoked defendant’s probation.
Thereafter, defendant entered a negotiated admission that she violated her probation by testing positive for cocaine. In exchange for the plea, she was promised that she would receive no more than four years in state prison.
Sentencing took place several months later before a different judge.
The probation department recommended against reinstatement on probation, urging instead that defendant be committed to prison. Describing defendant’s performance on probation as “difficult and frustrating,” the probation report stated she had “made a minimal effort to comply with the Court directives and her behavior clearly demonstrates a lack of regard for the terms and conditions of her probation.” The report also noted her efforts to evade detection of her abuse of drugs. Defendant gave her probation officer “warm tap water” rather than a urine sample; and a search of her residence revealed “bottles of urine stored in assorted size[s to be] used to falsify the urine tests for parole and probation.”
Failing to mention the four-year agreement, the probation report recommended imposition of the maximum term of five years in prison and a restitution fine of $400. Neither attorney informed the trial court of the four-year lid agreement or the previously imposed $200 restitution fine.
At an evidentiary hearing regarding sentencing, defendant’s attorney recounted the sexual and violent physical abuse defendant had suffered since a young age--abuse that led her to use drugs and to engage in other “self-injurious behavior,” such as sticking herself with pins and cutting herself. Defendant testified that she had used illicit drugs to “escape” the pain but that, since her arrest for violating probation and her commitment to prison for violating parole, she had been drug free; and that, with the help of others and her religious conversion, she had “finally” realized she must remain “clean and sober.” The manager of a program that provides “a supportive and safe and sober living environment” for past drug offenders testified that she “believe[d defendant was] now at a time where she might be willing to go forward and do what’s necessary in order to take back her life and be a productive citizen in the community.” The program would accept defendant and work with her.
The court then heard argument by counsel. Defense counsel urged defendant be reinstated on probation because her new insights will help her “deal with her drug addictions” and “mental health issues” and because “[s]he’s not going to get that help in prison.” The prosecutor expressed “sympathy for [defendant] in that she’s obviously had a difficult life, most of it not of her own creation,” but pointed to “defendant’s ongoing pattern of criminality over the last 23 years,” including “multiple theft-related offenses.” Asserting the promises defendant was making were “the exact same promises” she had earlier made and broken, the prosecutor opined that defendant had an “utter lack of ability or willingness to comply with probation[.]”
Having considered the probation report, “the letters, testimony, [and] argument [of counsel],” the court observed that defendant was “a very smart person” who “had an extremely difficult life” and who was “very eloquent” in her testimony. However, the court found her testimony “appear[ed] to be staged,” she had “no genuine emotional commitment” to address her drug abuse problem, and there was “no credible evidence... that there’s any reasonable possibility [defendant] would succeed on probation.” Accordingly, the court declined to reinstate defendant on probation.
The trial court sentenced defendant to the upper term of three years for possession of cocaine and two 1-year terms for the prior prison term enhancements, for a total of five years in state prison. The court also reimposed the financial conditions that had been imposed on February 14, 2007.
On appeal, defendant contends the trial court was required to reinstate her on Proposition 36 probation; her trial counsel was ineffective in failing to contend that defendant should have been reinstated on Proposition 36 probation; she should be permitted to withdraw her plea because the court imposed a greater sentence than agreed upon in her plea agreement; her trial counsel was ineffective for “not reminding the court of the four-year lid”; and her restitution fine must be reduced to the original $200 imposed at the time she was placed on probation.
DISCUSSION
I
According to defendant, the trial court abused its discretion by not reinstating her on Proposition 36 probation. In her view, such reinstatement was mandatory because it was her first probation violation and the violation was drug-related. She argues that the fact she had opted out of Proposition 36 probation “does not alter [her] conclusion because to hold otherwise would be undercutting the public policy expressed in Prop[osition] 36 to rehabilitate drug users.” We are not persuaded.
Proposition 36, the Substance Abuse and Crime Prevention Act, is codified in sections 1210, 1210.1, and 3063.1 and by division 10.8 (commencing with section 11999.4) of the Health and Safety Code. Its purpose is to divert nonviolent defendants charged with simple drug possession or use into community-based substance abuse treatment programs. (People v. Murillo (2002) 102 Cal.App.4th 1414, 1417.) It requires the trial court to grant probation and drug treatment to any defendant convicted of a nonviolent drug possession offense, and prohibits incarceration as a condition of probation. (§ 1210.1, subd. (a).) However, a defendant who refuses drug treatment as a condition of probation is excluded from receiving such diversion. (§ 1210.1, subd. (b).)
Although a defendant does not waive Proposition 36 treatment by failing to request it (People v. Esparza (2003) 107 Cal.App.4th 691, 699), a defendant may affirmatively waive Proposition 36 treatment (People v. Thurman (2005) 125 Cal.App.4th 1453, 1464) or be deemed ineligible by refusing to participate in such probation. (People v. Guzman (2003) 109 Cal.App.4th 341, 349-350.)
Here, defendant was initially put on Proposition 36 probation and ordered to appear in drug court. She failed to do so, and was arrested on a bench warrant. When she appeared in custody at the next hearing, she expressly opted out of Proposition 36 treatment. The trial court granted her request and terminated her from further Proposition 36 probation, placing her on formal probation instead.
Because defendant was not on Proposition 36 probation when she violated probation in October 2007, the conditions and limitations of section 1210.1 were inapplicable, and there was no requirement to “reinstate” her on Proposition 36 probation.
Defendant asserts the trial court “had no authority to allow [her] to voluntarily terminate her Prop[osition] 36 probation....” Her effort to challenge that ruling via this appeal from a different order is barred because it is untimely. (See People v. Dagostino (2004) 117 Cal.App.4th 974, 996-997.) In any event, it lacks merit.
Defendant was entitled to waive her statutory rights under Proposition 36. (People v. Thurman, supra, 125 Cal.App.4th at p. 1464.) An implicit bargain underlies Proposition 36; a defendant agrees to participate in a specified treatment program in exchange for access to treatment and her freedom from incarceration. While it is against public policy to allow a defendant to bargain for drug treatment that is not “appropriate” (see People v. Campbell (2004) 119 Cal.App.4th 1279, 1287-1290), there is no policy that prohibits a defendant from electing not to participate in Proposition 36 treatment.
Indeed, because the Department of Corrections and Rehabilitation was returning defendant to prison due to her violation of parole, she could not remain on Proposition 36 probation. (§ 1210; People v. Esparza, supra, 107 Cal.App.4th at pp. 698-699.)
Defendant argues there is no evidence to support a conclusion that, in opting out of Proposition 36 probation, she was refusing treatment for her drug addiction. In the words of her appellate counsel, “it was understood by both the defense and prosecution that [defendant] would receive drug treatment through her parole supervision; and there was no reason to ‘double her up’ with Prop[osition] 36 treatment.”
The fact remains, however, defendant was not on Proposition 36 probation when she violated conditions of her probation by testing positive for cocaine use on or about October 9, 2007, and also by possessing drug paraphernalia on October 29, 2007. Thus, there was no mandatory requirement to “reinstate” her on Proposition 36 probation.
Because there was no Proposition 36 probation to be reinstated, we reject defendant’s claim that she was deprived of the effective assistance of counsel when her trial attorney did not urge the court to reinstate the nonexistent probation. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
II
In exchange for her admission that she had violated terms of her probation, defendant was promised that she would receive no more than four years in prison for the underlying conviction. The judge who sentenced her was not the judge who had accepted the negotiated plea.
Contrary to the terms of the plea agreement, the probation report recommended the maximum term of five years in state prison; and neither the prosecutor, defense counsel, nor defendant told the sentencing judge about the four-year lid.
Defendant contends, and the People agree, that the five-year sentence imposed by the court violated the plea agreement. They disagree, however, on the remedy. Defendant argues that she should be permitted to withdraw her plea. The People ask us to modify the judgment to impose a four-year prison term. Neither request is appropriate. We will remand the matter to the trial court for resentencing in accordance with the plea agreement.
“‘While no bargain or agreement can divest the court of the sentencing discretion it inherently possesses [citation], a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] “A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.” [Citations.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.” [Citation.]’ [Citation.]” (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047.)
The harmless error standard of review “is inapplicable to a situation involving failure to fulfill the terms of a plea bargain. Defendant’s entitlement to the benefit of his bargain cannot be predicated on the assumption that violation of the bargain must result in some measurable detriment. Because a court can only speculate why a defendant would negotiate for a particular term of a bargain, implementation should not be contingent on others’ assessment of the value of the term to defendant.” (People v. Mancheno (1982) 32 Cal.3d 855, 865.)
A “violation of the bargain by an officer of the state raises a constitutional right to some remedy.” (People v. Mancheno, supra, 32 Cal.3d at p. 860.) Either the defendant will be allowed to withdraw the plea and proceed to trial on the original charges, or the plea agreement will be specifically enforced. Withdrawal of the plea is appropriate “when specifically enforcing the bargain would have limited the judge’s sentencing discretion” in light of new information or changed circumstances between the entry of plea and sentencing. (Id. at p. 861.) Specific enforcement is the appropriate remedy “when it will implement the reasonable expectations of the parties without binding the trial judge” to a sentence he or she finds unacceptable. (Ibid.)
Here, specific enforcement is appropriate because it permits the implementation of the reasonable expectation of the parties and does not limit the judge’s sentencing discretion.
Contrary to the People’s position, specific enforcement of the plea agreement cannot be accomplished by our modifying the judgment to impose a four-year term. Defendant did not stipulate to a four-year term; rather, she agreed to a four-year lid. The trial court violated that agreement inadvertently, not intentionally. Thus, specific enforcement of the plea agreement is accomplished by remanding the matter to the trial court for resentencing in accordance with the four-year lid agreement.
III
Although this matter must be remanded for resentencing, we address defendant’s last contention to provide guidance to the trial court on remand. The trial court originally imposed a restitution fine of $200 under section 1202.4, subdivision (b), and a probation revocation fine of $200 under section 1202.44. Upon revocation of probation, the court reimposed the previous conditions, but signed an order indicating the previously imposed restitution fine was $400, rather than $200.
Defendant contends, and the People agree, the restitution fine must be the original $200 fine imposed when defendant was placed on probation. The trial court did order the fine reimposed; however, the written order erroneously states the “previously ordered” restitution fine was $400. This error likely resulted from the unmentioned improper recommendation in the probation report that a $400 restitution fine be imposed.
The first restitution fine of $200 survived the revocation of probation; thus, the corresponding mandatory restitution fine, suspended unless parole is revoked (§ 1202.45), must be in the same amount, i.e., both fines must be $200. (People v. Chambers (1998) 65 Cal.App.4th 819.)
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated, and the matter is remanded for resentencing in accordance with defendant’s plea agreement and part III of this opinion.
We concur: SIMS, J., CANTIL-SAKAUYE, J.