Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS072527
Bamattre-Manoukian, J.
I. INTRODUCTION
Pursuant to a plea agreement, defendant pleaded no contest to two counts—inflicting corporal injury on a spouse and parent of his child (Pen. Code, § 273.5, subd. (a)) and inflicting injury on a child (§ 273a, subd. (b))—with the understanding that two remaining counts would be dismissed. The trial court subsequently sentenced defendant to three years in state prison, suspended execution of sentence, and placed defendant on probation for the two counts to which defendant pleaded no contest. The court failed to dispose of the remaining counts. On appeal, defendant contends those remaining counts should be dismissed pursuant to the plea bargain.
All further statutory references are to the Penal Code unless otherwise indicated.
We agree and will direct the trial court to dismiss the remaining two counts. As so modified, we will affirm the judgment.
II. BACKGROUND
As defendant was convicted by plea, the summary of his offenses is taken from the probation report. On August 11, 2007, defendant’s wife reported to Officer Johnson of the Salinas Police Department that defendant began “striking her on the arm” as they were driving home from a party with two of their children, who were eight years old and 15 years old. Defendant told her “that she was going to ‘get it’ when they got home.” Upon exiting the vehicle and approaching the home, defendant pushed her from behind. She tripped on the stairs, fell on the ground, and scraped her knees. She remained on the ground, crying and frightened. Defendant continued inside and “yelled at her to get in the house.” A few seconds later, defendant came outside, grabbed her by the hair, and pulled her into the house. He punched her numerous times in the face and body with both fists. Officer Johnson observed that her left cheek and upper lip were swollen, and her right forearm was bruised.
Defendant’s wife reported that when their younger son began to cry and scream for defendant to stop, defendant grabbed him by his shirt collar and slapped him across the face. Officer Johnson saw scratch marks and red marks on the left side of the child’s face.
Defendant’s wife stated that defendant subsequently threw plates and glassware at their older son. Their older son reported that he was able to “dodge” most of the items. Defendant’s wife explained that when she tried to intervene, defendant knocked her to a couch and started striking her again. Their older son grabbed defendant from behind in a “bear hug” and they both fell on the couch. Defendant broke free and began punching and striking their older son about the face and head. Officer Johnson saw a bruise and swelling under the older son’s right eye. The older son reported that defendant threw a perfume bottle, which struck the back of his head. Officer Johnson saw blood coming from a laceration on the back of the older son’s head.
Defendant’s wife indicated that defendant subsequently threw a chair at her, and it struck her right shoulder and collarbone. Officer Johnson observed a large bruise on her right collarbone. Defendant’s wife stated that defendant then fled the home in a vehicle.
Defendant’s wife reported that defendant had beaten her “ ‘many times.’ ” She also indicated that he was “very intoxicated” during the most recent incident, and that “every time” he gets drunk, he accuses her of cheating, as he did during this incident. Officers returned to the house several times over the next two days but were unable to locate defendant. He was arrested when he appeared in court on August 24, 2007.
In response to questions by the probation officer, defendant denied drinking any alcohol and claimed that his wife was drunk. He stated that his wife was “ ‘arguing with him about the kids’ ” and “ ‘she started hitting [him].’ ” He admitted hitting her “ ‘with an open hand’ ” but denied using his fist. He acknowledged slapping his younger son, but denied hitting his older son. When his older son jumped on his back, defendant indicated that he threw his son off. He denied throwing plates in the house. He indicated that everything was broken after he pushed his older son, who “ ‘knocked the stuff over.’ ” He eventually left the house “ ‘to get cigarettes.’ ”
A complaint filed August 24, 2007, alleged four counts against defendant. In count 1, he was charged with inflicting corporal injury on a spouse and parent of his child (§ 273.5, subd. (a); a felony). As to one of his sons, defendant was charged in count 3 with inflicting injury on a child (§ 273a, subd. (b); a misdemeanor). As to his other son, defendant was charged in counts 2 and 4 with inflicting corporal punishment or injury on a child (§ 273d, subd. (a); a felony) and inflicting injury on a child (§ 273a, subd. (b); a misdemeanor). Defendant entered a plea of not guilty to the charges.
The parties subsequently reached a plea agreement. On September 5, 2007, defendant and his counsel signed a written form, entitled “WAIVER OF RIGHTS [¶] PLEA OF GUILTY/NO CONTEST,” in which defendant indicated that he was pleading no contest to “PC 273.5(a) as a felony [and] PC 273a(b) as a misdemeanor for stipulated felony probation.” At the outset of the change of plea hearing on September 5, 2007, defense counsel stated that defendant “will be entering a plea of no contest to Count I which is a felony 273.5 violation. Also, Count III, a misdemeanor cruelty to a child 273(a)(b) with the understanding the remaining counts will be dismissed.” The trial court asked defendant whether he recognized the “waiver of rights form,” and defendant responded, “Yes.” The trial court then stated: “Basically the attorney indicated there will be a plea to the felony 273.5, also a misdemeanor 273(a)(b) and that there would be a felony probation case that you would not see state prison at the outset. [¶] Is that the agreement as far as you are concerned?” Defendant responded, “Yes.” The trial court subsequently asked defendant, “Have any other promises been made to you that have not been made to you in open court?” Defendant stated, “Everything is fine.”
Following advisements by the trial court, defendant pleaded no contest to count 1, inflicting corporal injury on a spouse and parent of his child (§ 273.5, subd. (a); a felony), and count 3, inflicting injury on a child (§ 273a, subd. (b), a misdemeanor). The trial court found a factual basis for the pleas based on the police report; found that defendant knowingly, intelligently, and voluntarily waived his rights; and accepted defendant’s pleas.
The minutes from the hearing on September 5, 2007, reflect that defendant entered no contest pleas to counts 1 and 3. The minutes further state, “Dismissal of remaining counts continued to time of sentence.”
Prior to the sentencing hearing, a probation report and a set of “ALTERNATE RECOMMENDATIONS” were provided to the trial court. Neither the initial probation report nor the portion containing alternate recommendations discusses the disposition of counts 2 and 4, and neither makes any recommendation in that regard.
The sentencing hearing was held on October 10, 2007. At the hearing, the trial court stated that it had reviewed the probation report and it had also received an “alternative recommendation report” that morning. Defense counsel stated: “[T]he alternate recommendation submitted by probation this morning is actually what [defendant] entered a plea for. He entered a plea for felony probation. That was a stipulation. I would ask the alternate recommendation be included as part of the order.” The trial court responded, “That would be included.” The trial court later stated: “It’s the Court’s understanding this would be a plea to a 273.5 felony and a 273(a)(b) misdemeanor as felony probation. Court would go along with that recommendation.”
After hearing argument from the prosecutor and defense counsel, the trial court sentenced defendant to the middle term of three years in state prison on count 1 for inflicting corporal injury on a spouse and parent of his child (§ 273.5, subd. (a)) and suspended execution of sentence. As to this count and count 3 for inflicting injury on a child (§ 273a, subd. (b)), the trial court placed defendant on probation for four years with various terms and conditions. Neither the prosecutor, defense counsel, nor the trial court discussed the disposition of counts 2 and 4.
Defendant filed a timely notice of appeal.
III. DISCUSSION
On appeal, defendant “seeks to specifically enforce the trial court’s negotiated promise that if [he] would plead to counts one and three, it would dismiss counts two and four.” Defendant contends the trial court’s failure to dismiss counts 2 and 4 violates his state and federal due process rights. Defendant requests “an order directing that counts two and four be dismissed.”
The People “agree[] with [defendant] that, consistent with the plea agreement, Counts 2 (§ 273d, subd. (a)) and 4 (§ 273a, subd. (b)) should be dismissed.” The People explain that “[i]t appears that the trial court as well as the parties overlooked the disposition of Counts 2 and 4.” The People “request[] that the Court grant [defendant’s] request for specific performance and order Counts 2 and 4 of the complaint dismissed.”
Our Supreme Court has discussed the significance of a plea agreement. Relying in part on cases from the United States Supreme Court, our Supreme Court has explained: “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. . . . [¶] ‘ “[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.” [Citation.] [¶] The [United States] Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.’ [Citations.]” (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
In this case, the parties agree that the plea agreement provided for dismissal of counts 2 and 4 but that those counts were not dismissed. We therefore turn to the issue of remedy.
In this regard, our Supreme Court has provided the following guidance: “The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of each case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases. [Citation.] [¶] The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when specifically enforcing the bargain would have limited the judge’s sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.” (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.)
In this case, we find that specific enforcement of the bargain is the appropriate remedy. It is apparent from the record that the trial court’s failure to dismiss counts 2 and 4 was inadvertent. The trial court accepted defendant’s no contest pleas to the other counts and otherwise sentenced defendant in accordance with the plea agreement. Thus, the reasonable expectations of the parties and the trial court will be implemented if we order dismissal of counts 2 and 4. In addition, it is appropriate in this case that we direct the trial court to dismiss counts 2 and 4 rather than remanding the case for resentencing. (§ 1260 [appellate court “may . . . modify a judgment or order”]; cf. People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [appellate court’s power to modify a sentence should be used “sparingly”]; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579 [refusing to remand for resentencing because it was “improbable” that defendant would obtain a more favorable result and appellate court was “unwilling to expend valuable judicial resources by engaging in idle gestures or merely adhering to ritualistic form”].)
IV. DISPOSITION
The trial court is directed to enter a dismissal of counts 2 and 4. As so modified, the judgment is affirmed.
WE CONCUR: ELIA, ACTING P.J., DUFFY, J.