Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct. No. FSB060072. Arthur Harrison, Judge. Reversed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant and appellant Sean Deandre Lusk pleaded nolo contendere pursuant to a plea bargain; he appeals contending that his sentence violated the plea agreement. The People raise an additional issue that defendant’s sentence was unauthorized. Because the unauthorized sentence fundamentally altered the nature of the plea bargain, we reverse the judgment and remand with directions to the trial court to permit defendant to withdraw his plea.
FACTUAL AND PROCEDURAL HISTORY
Defendant and three other men (Dorian Goodman, Quincy Porter [defendant’s nephew], and David Weed [defendant’s brother-in-law]) committed a series of robberies at electronics and auto parts stores between December 2006 and January 2007. During the robbery of an Auto Zone store on December 16, 2006, Porter fired a shot from a handgun into the ceiling of the store. Police later recovered a.30-caliber rifle casing from the store.
On January 24, 2007, after robbing a Radio Shack store, the robbers fled in a vehicle and were pursued by police. They crashed their vehicle during the chase and fled on foot. Defendant, Goodman, and Weed were later arrested at a nearby residence; Porter got away. Police found proceeds of the Radio Shack robbery in the house, as well as a handgun loaded with.30-caliber rifle ammunition. Porter was apprehended a few weeks later at the same residence.
In December 2006, a murder had been committed at an apartment in Ontario. Fired casings found at the scene of the murder matched the.30-caliber casings recovered from the Radio Shack and Auto Zone robberies. The casings in both the homicide and the robberies were matched to the handgun recovered after the Radio Shack robbery.
Defendant, Goodman, Weed, and Porter were charged with second degree robbery (the Radio Shack robbery on January 24, 2007), possession of an assault rifle, felony evading a police officer, and another second degree robbery (the Auto Zone robbery on January 7, 2007). Goodman and Porter were charged with second degree robbery for the December 3, 2006, robbery of an Auto Zone store. Porter was charged with yet another second degree robbery of an Auto Zone store on December 16, 2006.
The information also included various strike and prior conviction allegations against defendant, Weed, and Porter.
In November 2007, the People moved to consolidate the robbery cases with the alleged murder charge against Porter. As noted, the gun recovered from the house was linked to at least one of the robberies and to the homicide.
Dorian Goodman told police that Porter, Weed and another man named James Dean were responsible for the Ontario homicide. Goodman told police the men intended to rob the victim, a local drug dealer, because he had money and drugs. In the course of that robbery, they shot and killed the victim. The basis for consolidating the cases was the connection of the handgun to both sets of crimes, and the robbery motive as a common theme. Goodman was also a key witness in both cases.
At pretrial, defendant changed his plea. He agreed to plead nolo contendere to count 1 (the Radio Shack robbery on January 24, 2007) and admitted a strike prior, a gun use enhancement and a prior serious felony conviction, nolo contendere to count 3 (evading an officer), and nolo contendere to count 5 (the Auto Zone robbery on January 7, 2007). Defendant’s exposure was the aggravated term of five years for the count 1 robbery, doubled to 10 years as a second strike, plus 10 years for gun use, plus five years for a prior serious felony conviction, totaling 25 years on count 1. His exposure was eight months (one-third the middle base term) on count 3, doubled as a second strike sentence to 16 months, plus one year for count 5 (one-third the middle base term), doubled as a second strike to two years. Thus, defendant’s total exposure was 28 years 4 months. Notwithstanding, he would receive a minimum sentence of five years. All other counts and enhancements would be dismissed. The bargain was conditioned on defendant’s agreement to testify truthfully and to cooperate with law enforcement. The trial judge was to determine whether defendant had testified truthfully.
At the sentencing hearing, defense counsel stated that she had been present at trial and felt that defendant had testified truthfully; thus, she requested that the trial court impose the minimum agreed sentence of five years. The prosecutor told the court that, in interviewing jurors after the trial, the jurors had not believed defendant’s testimony. In a pretrial statement to police, defendant had apparently represented that David Weed was the initiator or instigator of the robberies. At trial, however, defendant insisted that he had forced everyone else to participate in the robberies. In addition, defendant was untruthful in other details. Defendant denied, for example, that any road violations were committed during the police chase, such as driving on the wrong side of the road or running red lights. The officer in the overhead helicopter had observed defendant fail to yield several times, drive on the wrong side of the road, and run through at least three traffic lights. Thus, while defendant had been truthful in some aspects of his testimony, his testimony was largely untruthful and untrustworthy.
The court stated that defendant did testify at trial, but the court found “little about his testimony... to be particularly truthful. He did admit to his involvement in the robbery and to the chase, flight from an officer, but there were significant aspects of his testimony that I found simply not credible. [¶] A clear impression that the Court had was he was trying to take the brunt of the culpability and do his [codefendants] a favor [by] taking the responsibility and pushing it away from being focused upon them.... [¶] So I don’t think he is entitled to the minimum of five years in the plea agreement.”
The court imposed the aggravated term of five years for the Radio Shack robbery, count 1, and doubled that term as a second strike sentence. Thus, defendant received a state prison term of 10 years. The remaining counts and enhancements were dismissed.
Defendant now appeals, asking this court to specifically enforce the minimum term of five years.
DISCUSSION
A. Standard of Review
“[A] plea agreement is interpreted according to the same rules as other contracts.” (People v. Toscano (2004) 124 Cal.App.4th 340, 344.) The appellate court applies the standards of review applicable to contracts generally. (Id. at p. 345.) “[T]he ‘interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.’ [Citations.]” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520.) “In contrast, ‘[i]f the parol evidence is in conflict, requiring the resolution of credibility issues, we would be guided by the substantial evidence test. [Citation.]’ [Citation.] However, extrinsic evidence is not admissible to ascribe a meaning to an agreement to which it is not reasonably susceptible. [Citation.]” (ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1267.)
“[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 [92 S.Ct. 495, 30 L.Ed.2d 427].) On the other hand, “‘[t]he remedy for violation of a plea agreement depends on the circumstances of each case. [Citation.]’” (People v. Brown (2007) 147 Cal.App.4th 1213, 1224.) Although “‘[u]nder certain circumstances, specific performance of the agreement is warranted... it is not a favored remedy for violation of a plea bargain. [Citation.] And, specific enforcement of a plea bargain is not a remedy required by the federal Constitution. [Citation.]’ [Citation.]” (Id. at p. 1224, citing People v. Renfro (2004) 125 Cal.App.4th 223, 233.) Rather, “‘[t]he typical remedy is to allow the defendant to withdraw his or her guilty plea and go to trial on the original charges. [Citation.]’ [Citation.]” (Brown, at p. 1224.)
B. Contentions
Appellate defense counsel claims in the opening brief that defendant was “likely misled” into believing that he had been promised a guaranteed, and not a contingent, five-year prison term. Thus, the bargain that defendant “believed” he had made should be specifically enforced.
The People respond that defendant waived his right to appeal his sentence, but that in any case defendant did not fulfill the conditions to receive a five-year sentence. In addition, the People raise the argument that the sentence defendant actually received—10 years—was unauthorized, because the court improperly struck the mandatory sentencing enhancements (five-year enhancement for prior serious felony conviction and ten-year enhancement for personal use of a firearm). The People argue that these enhancements are mandatory and cannot be stricken.
Defendant responded in supplemental briefing that he is entitled by due process to specific enforcement of the plea bargain; in other words, imposing the stricken enhancements now would violate the terms of the bargain defendant had made.
The People respond that, even if the improperly stricken enhancements are added to defendant’s sentence, the sentence he receives would be authorized under the terms of the plea bargain. Defendant agreed to a sentence between 5 years and 28 years 4 months. Even if 15 years are added to his sentence for the stricken enhancements, his total sentence will be within the agreed range.
Defendant rejoins that, if in fact the minimum authorized sentence was 25 years, then the plea bargain was wholly misleading, misrepresenting to defendant that he could plead no contest in exchange for a possible sentence of something between 5 years and 28 years 4 months. He likely would never have changed his plea if his sentence could only vary between a minimum of 25 years and 28 years 4 months. Defendant contends that due process requires specific enforcement of the plea agreement, including estopping the People from asserting the unauthorized sentence claim.
C. Defendant Did Not Waive His Right to Appeal His Sentence
Paragraph 20 of defendant’s change of plea form stated: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.”
Defense counsel argues that defendant’s purported waiver of his appeal rights was not shown to be sufficiently knowing, intelligent and voluntary, because he was not specifically advised of his appeal rights on the plea bargain form nor during the change of plea hearing. (See People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 [express waiver of appeal right is valid if the defendant’s waiver is knowing, intelligent and voluntary].) He contrasts this case with People v. Castrillon (1991) 227 Cal.App.3d 718, 722, in which the defendant had checked and initialed a box stating, “‘I understand that I have the right to appeal the Superior Court’s denial of my [section] 1538.5 motion (suppression of evidence motion) in this case. I hereby waive and give up this right.’” (Id. at pp. 720, 721.) Here, defendant’s plea form did not contain a similar advisement of his right to appeal.
The People respond that all the circumstances indicate that defendant did knowingly, intelligently and voluntarily give up his appeal rights. Although issues arising after a plea generally survive the plea and may be appealed, a defendant may nevertheless validly waive the right to appeal even such issues, as long as the waiver is knowing, intelligent and voluntary. (People v. Panizzon (1996) 13 Cal.4th 68, 80.)
Panizzon is inapplicable. There, the defendant had negotiated a specific sentence (life with possibility of parole, plus 12 years, plus a $400 restitution fine). The defendant in fact received that sentence. He attempted to appeal his sentence on the ground it was disproportionate to the sentences of his codefendants. The California Supreme Court ruled that the appeal must be dismissed because the defendant had waived his right to appeal. He had signed a provision stating: “‘I hereby waive and give up my right to appeal from the sentence I will receive in this case. I also waive and give up my right to appeal the denial of any and all motions made and denied in my case.’” (People v. Panizzon, supra, 13 Cal.4th at p. 82, italics added.) He had expressly waived the right to appeal from the very term—his sentence—that he was attempting to appeal.
Here, of course, defendant’s waiver is premised on the understanding that he received the benefit of his bargain. The precise ground he now asserts on appeal, however, is that he did not get the benefit of his plea bargain. His notice of appeal specifically indicated that the ground was breach of the plea bargain agreement. Also unlike Panizzon, defendant here requested and obtained a certificate of probable cause for his appeal. Under the circumstances, in which the precise ground of contention is whether defendant did in fact receive the benefit of his plea bargain, a waiver of appeal rights “since [i.e., because] I am getting the benefit of my plea bargain” does not waive an appeal premised on breach of the plea bargain terms.
D. Defendant Is Not Entitled to Be Sentenced to a Five-year Term
Defendant’s argument that he was likely misled into believing that he was guaranteed a five-year term cannot be sustained. The writing of the change of plea form set forth specifically that defendant’s exposure was up to 28 years 4 months, and that he was required to testify truthfully and to cooperate with law enforcement. The court repeated the conditional plea bargain, that defendant would be eligible for a five-year sentence and dismissal of other charges and enhancements if he testified truthfully at the codefendants’ trial. The court, defendant, and defendant’s counsel went over everything on the form to ensure that defendant understood all the terms. A supplement to the plea bargain agreement, which the trial court read out loud at the change of plea hearing, specifically stated that “[t]here is no agreement on the sentence defendant will serve.” The record could not be more clear that defendant was not promised or guaranteed a five-year sentence.
Appellate counsel relies on defendant’s statement in his notice of appeal, that he believed the prosecutor had “reneged” on an agreement to five years, as evidence of defendant’s belief in the five-year guaranty. To the extent defendant’s notice of appeal makes the claim of a purported guaranty, it is rejected. His self-serving posttrial statement is insufficient to contradict the writings he signed, the discussions he had with his trial counsel, or the statements made on the record at the change of plea hearing. Proper examination of defendant’s notice of appeal does not indicate, however, his belief that he had been promised a five-year sentence regardless of his performance. Rather, it indicates his contention that he had successfully fulfilled the prerequisite requirements, i.e., to testify truthfully and to cooperate with law enforcement.
Defendant’s position, of testifying truthfully and cooperating with law enforcement, must be rejected. The prosecutor pointed out the inconsistencies in defendant’s testimony, and its variance from what he had told police officers before trial. The jurors disbelieved defendant when he claimed to have forced his codefendants to participate in the robberies. The trial court also concluded that defendant’s trial testimony was not truthful in many major respects. Although defendant admitted participation in the robberies, he lied about the scope of his participation in an apparent effort to shift blame onto himself (who had already negotiated a favorable sentence) and away from his codefendants. Manifestly, defendant breached the conditions that he testify truthfully and cooperate with law enforcement. Thus, he was in no position to insist that he be sentenced to the minimum term of the promised range.
Defendant’s contention that he was misled into believing he had been promised a guaranteed five-year term is without merit; likewise his argument that he fulfilled the conditions of his plea bargain to receive the minimum sentence is rejected.
E. Defendant’s Sentence Was Unauthorized
The People argue that defendant’s sentence of 10 years was unauthorized, because he had pleaded nolo contendere to a prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)(1)) and a gun use enhancement (§ 12022.53, subd. (b)), which the court struck. Sentence enhancements under section 667, subdivision (a)(1), are mandatory and may not be stricken. (See People v. Dotson (1997) 16 Cal.4th 547, 553; see also § 1385, subd. (b) [“This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667”].) Section 12022.53, subdivision (h), provides that, “[n]otwithstanding Section 1385 or any other provision of law [i.e., permitting dismissal in the interests of justice], the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” At his change of plea hearing, defendant admitted the prior serious felony conviction allegation and the personal use of a firearm allegation. Such enhancements must be imposed and cannot be stricken. Therefore, it was error, and resulted in an unauthorized sentence, for the court to strike or dismiss those allegations at sentencing, and to impose only a 10-year sentence. Thus, defendant must be sentenced to an additional term of five years for the prior serious felony conviction and an additional term of 10 years for the gun use enhancement. He should be subject to a total prison term of 25 years, not 10 years, according to the People’s argument.
All further statutory references are to the Penal Code unless otherwise indicated.
We agree that once defendant had admitted the enhancements, the court was not permitted to strike them, and that striking those admitted allegations and findings resulted in an unauthorized sentence.
However, the mandatory 25-year sentence substantially alters the nature of defendant’s plea agreement. He was promised the possibility of a substantially reduced sentence, between five years and an upper limit of 28 years 4 months. The People argue that the 25-year mandatory sentence is within the promised range, so that defendant received the benefit of his bargain. We cannot agree. Defendant was undoubtedly induced to plead nolo contendere by the genuine possibility of a sentence substantially less than the 28 year 4 month upper limit. Had he known that, given the charges and allegations he admitted, the range of sentences could be, at best, only between 20 or 25 years and the upper limit of 28 years 4 months, it is unlikely that he would have changed his plea. The consequence of pleading to the mandatory-sentence enhancements was not properly explained to him, and indeed the record reflects that the agreement expressly contemplated the possible (though unauthorized) dismissal of the remaining charges and enhancements. Defendant was promised that he could receive a sentence as low as five years, when the matters he pleaded to absolutely forbade such a result. As already noted, “when 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, supra, 404 U.S. at p. 262.) Defendant’s plea rested, to a significant degree, on the promise that he could actually receive as low as a five-year sentence. That promise could not lawfully be fulfilled; the contract was based on a mutual mistake of law, and thus subject to rescission. (Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 517.) Although under certain circumstances, specific performance of a plea bargain may be warranted, it is not a favored remedy and not a remedy required by the federal Constitution. (In re Alvernaz (1992) 2 Cal.4th 924, 942.) Here, specific enforcement is beyond the sentencing court’s authority. Generally, the remedy for breach of a plea bargain is to allow the defendant to withdraw his or her plea. (People v. Renfro, supra, 125 Cal.App.4th at p. 233.) Defendant here should be afforded that remedy.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court. If defendant moves to withdraw his plea within 30 days of issuance of the remittitur by this court, the trial court is directed to vacate the nolo contendere plea. In that event, on motion of the People, the original charges shall be reinstated and trial or other appropriate disposition shall proceed. Should defendant elect not to withdraw his plea within 30 days, the court is directed to enter a lawful sentence.
We concur: RICHLI, Acting P. J., GAUT, J.