Opinion
E067293
02-28-2018
THE PEOPLE, Plaintiff and Respondent, v. SARKIS KRDOTYAN, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1502635) OPINION APPEAL from the Superior Court of San Bernardino County. Miriam I. Morton, Judge. Affirmed. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Faced with two counts of being a felon in possession of a firearm and ammunition, a "strike" prior, three prison priors, and a potential nine-year sentence, defendant and appellant Sarkis Krdotyan entered a guilty plea to a single count of felon in possession of a firearm with a "strike" prior in exchange for a six-year sentence (plea bargain). Separately, defendant entered into a Cooperating Individual Agreement (CIA) with the district attorney's office. Pursuant to the terms of the CIA, if defendant fulfilled certain conditions, the prosecution would recommend a lesser sentence than called for by the plea bargain or no sentence at all. The defendant failed to fulfill the conditions of the CIA, and the trial court sentenced him according to the plea bargain. He appeals, contending his constitutional and statutory rights were violated in the plea bargaining process because his plea was not "knowing, intelligent and voluntary since it was induced by an illusory cooperation agreement that was negotiated without the assistance or approval of counsel and was not approved by the court that presided over the plea." Alternatively, he asserts that remand is necessary for "a full hearing" on whether he substantially complied with the CIA. Rejecting his contentions, we affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
Defendant was previously convicted of three felonies, including willful infliction of corporal injury (Pen. Code, § 273.5), burglary (§ 459), and robbery (§ 212.5), which occurred in 2014, 2013, and 2007, respectively. On or about October 27, 2015, he was caught in possession of a firearm. On October 28, 2015, the San Bernardino County District Attorney's Office filed a complaint against defendant, charging him with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1) and possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2). It was further alleged that defendant was previously convicted of a "strike" prior (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and three prison priors (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On December 4, 2015, defendant met with the prosecution to discuss his cooperation with law enforcement. As a result of that meeting, defendant signed the CIA. According to the CIA, defendant would assist in the investigation of criminal offenses and provide information resulting in the initiation of eight firearm and/or narcotic trafficking cases "of equal or greater amounts than his . . . current case," and he would avoid being arrested for any new offense. In exchange, he would remain free on a Vargas waiver for 45 to 60 days, so he could effect the initiation of eight new criminal cases. If he fulfilled these conditions, he would be eligible to be resentenced to a different term. However, if defendant's actions caused a revocation of the CIA, defendant agreed that he would "not be permitted to withdraw his plea of guilty . . . ." The CIA pointed out that the court was not a party to the agreement and could not be bound by any term or promise made in the agreement. Defense counsel reviewed the CIA, but did not sign it.
People v. Vargas (1990) 223 Cal.App.3d 1107. --------
On December 15, 2015, the parties, including defense counsel, executed the plea bargain wherein defendant pled guilty to count 1, admitted the "strike" prior, and waived his appellate rights. In exchange, the trial court granted the People's motion to dismiss count 2 and the prison prior allegations. The trial court went over the plea agreement with defendant and found that he knowingly, intelligently, freely, and voluntarily waived his rights. Defendant was allowed to remain free from custody under a Vargas waiver until sentencing on March 15, 2016. There was no mention of the CIA at the plea hearing.
On or about February 16, 2016, defendant returned to custody following his arrest and charge for misdemeanor domestic violence. After numerous continuances, he was sentenced on November 14, 2016. At the beginning of the sentencing hearing, the People informed the trial court of their belief that defendant was seeking to withdraw his plea. In response, defense counsel stated, "I think what we are seeking, Your Honor, is to determine whether [defendant] is in violation of the [CIA]." The People noted they were "the only and final arbiter of whether the defendant actually performed" under the CIA. After further argument from counsel, the court found that it was not a party to the CIA, nor was it involved "in any way" with the CIA. The court further explained that it did not have "any business getting involved" in the CIA. Nevertheless, defense counsel argued that defendant provided information that led to three new criminal cases. In response, the People asserted that defendant's information only led to one new criminal case with three defendants, and he failed to remain crime free, having been arrested on a new offense. The court reiterated that the only agreement before it was the plea bargain, and without any further objections, sentenced defendant to six years in state prison.
Defendant appealed, requesting a certificate of probable cause. He asserted the following: "The plea in this case was obtained from defendant pursuant to an illusory, one-sided contract, which was ambiguous as to its terms. Further the District Attorney failed to provide adequate consideration, in that it was the sole arbiter of the defendant's performance, including whether the defendant substantially performed under the terms of the plea bargain agreement. The fact that the District Attorney could merely declare a breach of the agreement, without having to make an evidentiary record or present competent proof of the same, was a denial of due process at a critical stage of the criminal process." The court issued the certificate of probable cause.
II. DISCUSSION
A. No Constitutional or Statutory Rights Were Violated in the Plea Bargaining Process.
1. Defendant's Plea Was Knowingly, Intelligently, and Voluntarily Made.
Defendant contends his plea was not "knowing, intelligent and voluntary since it was induced by an illusory cooperation agreement that was negotiated without the assistance or approval of counsel and was not approved by the court that presided over the plea." We are not persuaded by defendant's after-the-fact, self-serving claim that he was induced into accepting the plea.
"'"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.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment . . . . [I]mplicit in all of this is a process of 'bargaining' between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them." [Citations.]' [Citation.]" (People v. Labora (2010) 190 Cal.App.4th 907, 914.)
A plea, like any other waiver of constitutional rights, "may be accepted by the court only if knowing and intelligent—made with a full awareness of the nature of the right being waived and the consequences of the waiver. In addition, the waiver must be voluntary." (People v. Smith (2003) 110 Cal.App.4th 492, 500.) When a defendant elects to waive the fundamental constitutional rights that accompany a trial by pleading guilty "the record must reflect that the defendant did so knowingly and voluntarily—that is, he or she was advised of and elected to refrain from exercising the fundamental rights in question." (People v. Collins (2001) 26 Cal.4th 297, 308.) Under the governing test, a plea is valid "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175.)
Here, the record affirmatively shows that the plea and admission were voluntary and intelligent. The trial court went through the plea form thoroughly with defendant, asking him if he understood his constitutional rights, whether his counsel had completely explained his legal and constitutional rights to him, and whether he waived his constitutional rights. Defendant acknowledged that he had placed his initials on the change of plea form indicating he understood his rights and consequences of the plea, that he did not need any more time to speak with his attorney, and that he wished to waive his constitutional rights in order to plead guilty. Defense counsel confirmed that he had personally read and explained the terms to defendant, had adequate time to discuss any issues with him, and was satisfied that he understood. The court further advised defendant of the penal consequences of his plea and admission, and defendant stated he understood those consequences. When the court inquired as to whether anyone had promised defendant anything different than what was stated in the plea bargain, he replied, "No, ma'am." Neither defendant nor his attorney mentioned the CIA.
Based on the record before us, we conclude that defendant's plea was knowingly, intelligently, and voluntarily made.
2. Defendant's Plea Was Not Induced by an Illusory CIA.
"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262.) "Failure of the state to honor the agreement violates the defendant's due process rights for which the defendant is entitled to some remedy. [Citation.]" (People v. Lopez (1998) 66 Cal.App.4th 615, 636.) However, "[t]his does not mean that any deviation from the terms of the agreement is constitutionally impermissible." (People v. Walker (1991) 54 Cal.3d 1013, 1024, overruled on other grounds as stated in People v. Villalobos (2012) 54 Cal.4th 177, 183.) "[T]he variance must be 'significant' in the context of the plea bargain as a whole to violate the defendant's rights." (Walker, supra, at p. 1024.) A defendant is entitled to withdraw his or her plea when it has been "'"induced by misrepresentations of a fundamental nature" such as a bargain which is beyond the power of the trial court.'" (People v. Hollins (1993) 15 Cal.App.4th 567, 574.)
Here, defendant's sole claim is that the CIA "provides no defined consideration." We disagree. Under the terms of the CIA, if defendant's cooperation with law enforcement effected the initiation of eight firearm and/or narcotic trafficking cases of equal or greater amounts than defendant's case and he remained crime free while out of custody on the Vargas waiver, then the prosecution would recommend a sentence less than that called for by the plea bargain. The consideration was the recommendation. Whether the recommendation was made to the trial court was within the control of defendant, who was tasked with fulfilling two conditions. If defendant did not fulfill those conditions, he would receive exactly what he bargained for in the plea bargain. The fact that the prosecutor was the sole arbiter on whether defendant met his conditions is irrelevant, given his failure to effect more than three new criminal cases and remain crime free while out of custody. His performance fell significantly short of what he agreed to in the CIA.
3. Defendant Waived His Right to Counsel When Executing the CIA.
Defendant complains that his Sixth Amendment right to counsel was violated when he entered into the CIA because he was not represented by his attorney. Assuming, without deciding, that the execution of a CIA constitutes a critical stage of the proceedings, the record supports a finding that defendant validly waived this right and chose to represent himself. (People v. Mickel (2016) 2 Cal.5th 181, 205.) Prior to entering into the CIA, defendant participated in an initial meeting with the prosecution wherein (1) he confirmed that his attorney explained his "right to defense counsel in any post arraignment conversations with law enforcement regarding potential cooperation"; (2) he acknowledged he understood that right; and (3) he represented that he and his attorney agreed to waive that right for his interview with law enforcement about his information and cooperation.
Notwithstanding his waiver of the right to counsel, it would not be unreasonable to infer that defendant was represented by his attorney, given the facts that (1) defense counsel was aware of, and reviewed, the CIA prior to the execution of the plea bargain; (2) defendant was represented by counsel when he executed the plea bargain; and (3) the CIA and the plea bargain share common terms. Even if defense counsel was not physically present during the initial meeting and execution of the CIA, it is reasonable to conclude that defendant received advice from his attorney about both the CIA and the plea bargain and whether the agreements were beneficial to him.
Defendant fails to show that he would not have entered into the plea bargain but for an alleged improper inducement by the CIA, and the lack of assistance or approval of counsel and the court when executing the CIA. His guilt is not in question. He secured the dismissal of count 2 and three prison priors. He reduced his maximum prison exposure from nine years to six. And, he was allowed to remain out of custody following the entry of his plea.
B. Remand Is Unnecessary Because Defendant Failed to Comply with the CIA.
Alternatively, defendant contends remand is necessary for "a full hearing" on whether he substantially complied with the CIA. We disagree.
"The standard of review in cases involving 'cooperation' agreements depends on the issue raised. . . . [W]hether a party carried through with its part of the agreement generally is a question of fact reviewed under the substantial evidence standard. [Citations.] [¶] However, when a cooperation agreement embraces a promise to dismiss or reduce charges, whether the promise is authorized and enforceable usually is a legal question reviewed de novo. [Citations.]" (People v. C.S.A. (2010) 181 Cal.App.4th 773, 777-778.)
Remand for a hearing on whether defendant complied with the CIA is unnecessary for three reasons. First, the CIA is outside the jurisdiction of the trial court because it provides that the district attorney is the only arbiter of whether defendant fulfilled the conditions he was tasked with. Second, the CIA called for defendant effecting the initiation of eight firearm and/or narcotic trafficking cases of equal or greater amounts than his current case, and it is undisputed that he only effected three (defense counsel argued substantial compliance). And third, the trial court has already considered whether defendant complied with the CIA and concluded that he did not, based on the facts that "there were not eight cases initiated, and . . . the defendant was arrested on a misdemeanor . . . ."
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. FIELDS
J.