Opinion
B227588
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES ROY KING, Defendant and Appellant.
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA047236)
APPEAL from a judgment of the Superior Court of Los Angeles County, Suzette Clover, Judge. Affirmed as modified.
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
I. BACKGROUND
Appellant was charged with three narcotics-related offenses and it was additionally alleged, under various statutes, that he had been previously convicted of several similar offenses. Pursuant to a plea agreement, appellant pled no contest to one of the offenses - sale or transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)).
Although there is nothing in the record documenting the trial court's order dismissing the remaining charges and allegations, it appears dismissal occurred because no sentence was imposed on those charges and allegations.
The trial court indicated, consistent with the plea agreement, appellant would be sentenced to the low term of three years in state prison. Appellant sought to be released on his own recognizance because his mother suffered a stroke and he wanted to resolve employment-related issues. The trial court agreed to release appellant on his own recognizance but cautioned him as follows: "[I]f you don't come back for sentencing in three weeks, when we do find you, you will probably be sentenced to five years in state prison. If you come back in three weeks you will get [the] low term of three years [in] state prison." Appellant indicated he understood this agreement and returned to court three weeks later - on October 25, 2001.
After receiving two continuances for sentencing, appellant failed to appear on November 30, 2001. He eventually appeared, in custody, almost nine years later. A judge, different from the judge who took his plea, enforced the plea agreement and imposed a term of five years in state prison.
Appellant contends: (1) the trial court erred because the agreement he entered into regarding the imposition of a five-year term due to a nonappearance expired when he successfully made the first court appearance after the plea was taken; (2) the sentence was illegal because it was not imposed by the same judge who took his plea; and (3) the court improperly imposed court facilities and security fees. The only claim with merit concerns the imposition of fees. The judgment is otherwise affirmed.
II. DISCUSSION
A. The Five-Year Term Comported With The Plea Agreement
Generally speaking a defendant who pleads guilty pursuant to a plea bargain has the right to withdraw the plea if the court withdraws its approval of the bargain. (People v. Cruz (1988) 44 Cal.3d 1247, 1253-1254.) However, the defendant may waive his right to withdraw the plea if he fails to appear, in which case the court may impose an increased sentence but leave the plea intact. (Id. at p. 1254, fn. 5.) Similarly, although a defendant may enter a plea agreement wherein the trial court provides an indicated sentence, the defendant may waive his right to be sentenced to that specified term and agree to be subject to a greater term if he does not appear for a future sentencing hearing. (People v. Vargas (1990) 223 Cal.App.3d 1107, 1113-1114.)
"A negotiated plea agreement is a form of a 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.]'" (People v. Shelton (2006) 37 Cal.4th 759, 767.)
It is true the trial court warned appellant that his failure to appear for sentencing "on the 25th of October" would subject him to greater punishment. It is also true that appellant appeared on October 25 and had his sentencing hearing continued. However, appellant's assertion that his subsequent failure to appear for sentencing did not expose him to greater punishment simply because the sentencing hearing was continued to November is both unreasonable and refuted by the comments of his trial attorney.
At the sentencing hearing, counsel requested the trial court impose three years in state prison because the reason for appellant's nonappearance was that he was caring for his terminally ill mother. But counsel acknowledged the three-year term would be inconsistent with the plea agreement. He stated, "I'm asking the court . . . to give him the three years. I know it's asking the court to go back on what was originally agreed." (Italics added.)
Clearly, the intention of the parties was to allow appellant to be released from custody but also expose him to a five-year term if he failed to appear for his sentencing hearing. The date of the hearing was insignificant. The imposition of the five-year term was consistent with the plea agreement. B. Arbuckle
For the same reasons we reject appellant's argument that due process requires either his plea agreement to be specifically enforced or the withdrawal of his plea.
"As a general principle, . . . whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge." (People v. Arbuckle (1978) 22 Cal.3d 749, 756-757.) If that judge is unavailable at the time of sentencing, the defendant has the option of proceeding before a different judge or withdrawing his plea. (Id. at p. 757 & fn. 5.)
Although appellant was sentenced by a judge different from the judge who took his plea, he did not object to the imposition of sentence on that ground nor did he request to be sentenced by the same judge who took his plea. His claim is, therefore, waived. (People v. Adams (1990) 224 Cal.App.3d 1540, 1543-1544; People v. Serrato (1988) 201 Cal.App. 3d 761, 764-765; but see People v. Horn (1989) 213 Cal.App.3d at 701, 709.)
Nevertheless, the right to be sentenced by the same judge who accepted a plea arises only when the record affirmatively demonstrates that the defendant reasonably expected to be sentenced by that judge. (In re Mark L. (1983) 34 Cal.3d 171, 177; People v. Adams, supra, 224 Cal. App. 3d at p. 1543.) There is nothing in the record to suggest appellant reasonably believed he could abscond for nine years and yet return to court and be sentenced by the same judge who accepted his plea. (See People v. Hsu (2008) 168 Cal.App.4th 397, 412 ["[W]hen [the defendant] chose to absent himself . . . for 15 years, he took the risk (if not made the calculation) that the judge who originally took his plea . . . would no longer play a judicial role in any future sentencing proceedings"].) Under these circumstances, the sentencing judge need not be the same judge who accepted the no contest plea in order to preserve the integrity of the plea agreement. C. The Fees
Respondent concedes the trial court improperly imposed a court security fee and a court facilities fee. The court security fee was not applicable because appellant's crimes were committed before the effective date of the legislation requiring the fee. (People v. Wallace (2004) 120 Cal.App.4th 867, 871-879.) The court facilities fee did not apply because the plea predated the effective date of the legislation requiring the fee. (People v. Davis (2010) 185 Cal.App.4th 998, 1000-1002.) We accept the concession.
III. DISPOSITION
The abstract of judgment is modified to delete the security and court facilities fees of $30. A copy of the corrected abstract of judgment shall be forwarded to the Department of Rehabilitation and Corrections. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
TURNER, P. J.
KRIEGLER, J.