Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM0663A, James LaPorte, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Pursuant to a plea agreement, defendant Artemio Trelles Lara was convicted of one count of violating Health and Safety Code section 11378 (possession of controlled substance for sale). The trial court sentenced defendant to three years in prison. On appeal, defendant contends: (1) the trial court’s imposition of a three-year term violated the terms of his oral plea agreement which provided for a two-year term; and (2) the trial court lacked the authority to suspend his driver’s license under Vehicle Code section 13202, subdivision (b). We agree with defendant’s second contention (which the People concede has merit) and reverse the court’s order suspending defendant’s driver’s license for a year. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying the current offense are gleaned from the probation officer’s report.
On February 21, 2007, investigators with the Kings County Narcotics Task Force went to a residence in Avenal to look for defendant, who was wanted for being a deported felon. Defendant was taken into custody inside the residence. Officers then searched the residence for others. During the search, one of the investigators saw a bucket in the bathtub. The bucket, which was in plain view, was filled with plastic Ziploc baggies containing a white crystalline substance which turned out to be 126.6 grams of methamphetamine. After obtaining a broader search warrant, investigators located an additional 7.0 grams of methamphetamine inside a kitchen cabinet.
On February 23, 2007, the Kings County District Attorney filed a complaint charging defendant, and three others, with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1). The complaint further alleged that the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), and that defendant had two prison priors (Pen. Code, § 667.5, subd. (b)).
On June 12, 2007, defendant agreed to plead guilty to count 1 in exchange for the dismissal of the enhancement allegations. In discussing the terms of the plea, the prosecutor stated:
“The pleas will be to Count 1 for all four defendants. Juan Trelles will admit his strike prior. For Juan Trelles, I have agreed that at sentencing I will not argue for anything more than midterm double. And for the other defendant it’s a 16, two, three, triad. However, this occurred before March 31st when [Cunningham v. California (2007) 549 U.S. 270 (Cunningham)] was in effect, and it’s our anticipation that they would not be getting anything more than the midterm based on that previous court decision.”
Later, the court asked what was the “maximum possible sentence” for defendant. The prosecutor responded:
“For – hold on, for [Artemio] Trelles Lara as I said it’s a 16, two, three triad, however, because this was before March 31st we anticipate it being a midterm of to two years. But it’s a 16, two, three, triad.”
After the parties stipulated there was a factual basis for the pleas, the court inquired: “Is this a stipulated agreed sentence, Counsel, or just open?” The prosecutor responded: “No. It will proceed to the other court for sentencing.”
On July 10, 2007, defendant was sentenced by a different judge (as agreed upon). The court stated it was inclined to follow the recommendation of the probation officer, which was to impose the upper term of three years. After asking defense counsel to comment, the following exchange occurred:
“[DEFENSE COUNSEL]: Yes, your Honor, I believe because of the application of [Cunningham] and the date of the offense, the appropriate sentence should be two years.
“THE COURT: Okay.
Do you want to be heard on the recent legislation passed by the legislature and enacted by the governor which does not seem to have an expost [sic] facto arrangement because it frees the court to sentence for any of the factors as set forth by [Apprendi v. New Jersey (2000) 530 U.S. 466]
“[DEFENSE COUNSEL]: No, your Honor.
“THE COURT: -- and [Cunningham]?
“Do you want to be heard, [prosecutor]?
“[THE PROSECUTOR]: No, we submit it.”
The court then sentenced defendant to the upper term of three years, explaining:
“All right, the Court is inclined to follow the recommendation. The defendant is presumed to be ineligible for probation per 1203(e)(4). He has two prior felonies. There are no circumstances to overcome presumption. Further, he was an active participant, was on parole when this crime was committed, his prior performance on parole and probation has been unsatisfactory, he didn’t even state he would comply with the probation terms. [¶] The Court would find the aggravating factors of increasing serious and numerous prior convictions, the fact that he’s served a prior prison term, which is another factor of aggravation, he committed this offense while he was on parole may outweigh any early acknowledgement of a plea as a mitigating factor.”
The court further ordered defendant’s driver’s license suspended for one year pursuant to Vehicle Code section 13202, subdivision (b).
On July 18, 2007, defendant filed a notice of appeal. On September 7, 2007, defendant filed an amended notice of appeal and requested a certificate of probable cause. The trial court denied defendant’s request on September 14, 2007.
DISCUSSION
I. Violation of the plea agreement.
Defendant contends the trial court violated the plea agreement by sentencing him to a prison term of three years. Defendant contends the plea bargain provided he would be sentenced to the midterm of two years. He relies heavily on the prosecutor’s statements at the plea hearing that, although defendant’s maximum exposure under the applicable sentencing triad was three years, the prosecutor anticipated the sentencing court would impose the midterm of two years in light of Cunningham. Defendant also relies on his later statement to the probation officer that he did not believe he would receive a sentence “more or less than two years.” According to defendant, the record thus reflects that “the parties along with the trial court all agreed that he would receive a two year prison sentence in exchange for his plea” and that neither the parties, nor the plea hearing judge, “reasonably expected that a different prison sentence would result.” Defendant asserts that because it was the “reasonable expectation of the parties” that he would receive a two-year term, and because the plea hearing judge “apparently agreed to be bound by that agreement,” the sentencing judge “could not lawfully deviate from that agreement and impose a greater sentence.”
Preliminarily, we reject the People’s contention that defendant forfeited his challenge to the court’s imposition of a three-year prison term because he failed to obtain a certificate of probable cause. We find instructive the court’s discussion in People v. Brown (2007) 147 Cal.App.4th 1213, at page 1220:
“If a defendant enters a guilty or no contest plea and fails to obtain a certificate of probable cause, the scope of an appeal is generally limited to challenging a motion to suppress evidence and raising grounds arising after entry of the plea that do not affect its validity. [Citation.] When a defendant raises a claim that a negotiated sentence is unconstitutional or that the trial court lacked authority to impose the negotiated sentence, the challenge is, in substance, an attack on the validity of the plea, requiring a certificate of probable cause. (See People v. Shelton (2006) 37 Cal.4th 759, 769–771; People v. Panizzon (1996) 13 Cal.4th 68, 79.) [¶] The People argue that the appeal amounts to an attack on the validity of the plea. We disagree. [Defendant] is not contending the negotiated plea is invalid in any respect, nor is she arguing the trial court lacked authority to impose the negotiated sentence. Rather, the grounds for her appeal arise from the trial court’s failure to give effect to the terms of her plea.… Accordingly, [defendant] was not required to obtain a certificate of probable cause.”
Likewise, we conclude that defendant’s claim the court violated the terms of his plea agreement by imposing a three-year prison term, when the parties actually agreed to a two-year term, and his request to order specific performance of that agreement, does not constitute an attack on the validity of the plea itself or the court’s authority to impose a negotiated sentence. Therefore, defendant was not required to obtain a certificate of probable cause to raise his claim on appeal. However, we agree with the People that his claim must be rejected on the merits.
As a general rule, a plea bargain approved by the court is enforceable under contract principles. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) “When a guilty plea is entered in exchange for specific 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. The punishment may not significantly exceed that which the parties agreed upon.” (Ibid.)
“Traditionally, courts have viewed plea agreements ‘using the paradigm of contract law. [Citations.]’ [Citation.] Analogizing to contract law, courts examining plea bargains ‘should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations. [Citations.]’ [Citation.]” (People v. Knox (2004) 123 Cal.App.4th 1453, 1458, second & fifth bracketed insertions added.) Further, “plea agreements are interpreted according to the general rule ‘that ambiguities are construed in favor of the defendant. Focusing on the defendant’s reasonable understanding also reflects the proper constitutional focus on what induced the defendant to plead guilty.’ [Citation.]” (People v. Toscano (2004) 124 Cal.App.4th 340, 345; original emphasis.)
The record of the plea proceedings belies defendant’s argument that the parties agreed to a specific sentence as part of his plea bargain. When the court discussed the plea bargain with the parties, the prosecutor clearly indicated that the plea bargain left defendant’s sentence to the discretion of the sentencing court. The prosecutor reiterated three times that defendant faced “a 16, two, three, triad” at sentencing and did not promise to seek any particular sentence at sentencing. In contrast, the prosecutor expressly promised to seek a specific sentence with respect to one of defendant’s codefendants (“For Juan Trelles, I have agreed that at sentencing I will not argue for anything more than midterm double.”). Moreover, the court specifically asked whether the plea was “a stipulated agreed sentence” or “just open.” Contrary to defendant’s assertion, the prosecutor’s response was not ambiguous. The prosecutor unequivocally answered no, which presumably referred to the first part of the court’s question, and then stated the matter would “proceed to the other court for sentencing.” Finally, at sentencing, defense counsel did not object to the imposition of a three-year sentence on the ground it violated the terms of the plea agreement, suggesting counsel did not interpret the plea bargain as providing for a specified term of two years. From all the forgoing circumstances, it may reasonably be inferred that the parties contemplated the plea agreement would not limit the court’s sentencing discretion to select among the lower, middle, or upper term in sentencing defendant.
Finally, although the prosecutor conjectured the sentencing court would likely choose the midterm in light of Cunningham, he made no promise in that regard. If defendant understood the prosecutor’s statements to constitute a promise he would only receive a two-year prison term, his understanding was not reasonable. (See People v. Toscano, supra, 124 Cal.App.4th at p. 345, citing United States v. De La Fuente (9th Cir. 1993) 8 F.3d 1333, 1337, fn. 7 [terms of plea contract must be interpreted based on defendant’s reasonable beliefs].) Such understanding was unreasonable since it was based on predictions concerning the actions of a third party (i.e., the sentencing court) who was not bound by any of the terms of the plea agreement as they were plainly stated on the record during the plea hearing.
In short, because the record reflects defendant was not promised a two-year term as part of his plea agreement, we reject his argument the trial court violated the agreement by sentencing him to three years in prison.
II. Suspension of defendant’s driver’s license.
Defendant contends the court’s order suspending his driver’s license was unauthorized under section Vehicle Code section 13202, subdivision (b). He notes that subdivision (b) of that statute does not specifically list the offense of which he was convicted. (People v. Monday (1990) 224 Cal.App.3d 1489, 1491, fn. 1 [“[Vehicle Code] Section 13202, subdivision (b), provides a mandatory suspension for specified drug offenses, not including Health and Safety Code section 11378.”].) Alternatively, defendant suggests the court was without authority to suspend his license under Vehicle Code section 13202, subdivision (a), which, by its terms, applies to “any offense related to controlled substances” because the record contains no evidence that any type of motor vehicle was even tangentially “involved in, or incidental to, the commission of the offense.” (Veh. Code, § 13202, subd. (a).) The People concede the merits of defendant’s contention but assert he forfeited his right to raise it on appeal by failing to object to the license suspension at sentencing.
We reject the People’s waiver argument and also find merit in defendant’s claim that the court was not authorized to suspend his license under either provision of Vehicle Code section 13202, because the record discloses no evidence a motor vehicle was involved in defendant’s commission of the current offense. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [claim that sentence is unauthorized may be raised for first time on appeal]; People v. Monday, supra, 224 Cal.App.3d at pp. 1491-1493 [license suspension authorized under Veh. Code, § 13202, subd. (a) where undisputed preliminary hearing evidence showed the defendant, who pled guilty to possessing methamphetamine for sale, employed a vehicle to move both him and the contraband].)
Vehicle Code section 13202 provides, in relevant part: “(a) A court may suspend or order that the department revoke in which case the department shall revoke the privilege of any person to operate a motor vehicle upon conviction of any offense related to controlled substances as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code when the use of a motor vehicle was involved in, or incidental to, the commission of the offense. [¶] (b) A court shall order that the department revoke and the department shall revoke the privilege of any person to operate a motor vehicle upon conviction of a violation of Section 11350, 11351, 11352, 11353, 11357, 11359, 11360, or 11361 of the Health and Safety Code when a motor vehicle was involved in, or incidental to, the commission of such offense.”
DISPOSITION
The order suspending defendant’s driver’s license under Vehicle Code section 13202, subdivision (b) is reversed. The trial court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other aspects the judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.