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People v. McDonald

Court of Appeals of California, Third District.
Nov 13, 2003
No. C043782 (Cal. Ct. App. Nov. 13, 2003)

Opinion

C043782.

11-13-2003

THE PEOPLE, Plaintiff and Respondent, v. SUSIE JEAN MCDONALD, Defendant and Appellant.


Defendant Susie Jean McDonald pled guilty to two counts of passing bad checks. Under the plea agreement, there was to be no initial state prison sentence, no alternative sentencing, and a maximum of one year in county jail with a waiver of custody credits to date. The court sentenced defendant to four years four months in state prison, suspended upon execution of that sentence, and granted probation on the condition that she serve 520 days of local time with a waiver of credits and the 365-day limit on jail time as a condition of probation. Defendant unsuccessfully moved to withdraw the plea.

On appeal, defendant argues that the court erred by failing to expressly advise her of her right to withdraw the plea at the time of sentencing and, thereafter, by denying her motion to withdraw the plea. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A felony complaint charged defendant with six counts of passing bad checks. In addition to her guilty plea, she also admitted violating probation in three earlier cases. Defendant initialed the following statement in the advisement and waiver of rights: "I understand that the judges acceptance of this plea is not binding; that before sentencing the judge can withdraw approval and that I will be allowed to withdraw my plea."

Nearly two years earlier, on July 14, 2000, defendant was convicted of: (1) grand theft by an employee, a felony, in Placer County Superior Court No. 6212489; (2) second degree commercial burglary, a misdemeanor, in case No. 620996; and (3) fraudulent use of an access card, a misdemeanor, in case No. R47151. The court sentenced defendant to three years in prison, suspended that sentence, and placed her on four years probation on the condition that she enter a drug counseling or drug treatment program.

The probation report recommended that defendant be sentenced to four years and four months in prison. At sentencing, the court explained it was considering three alternative dispositions: (1) state prison for three years eight months; (2) state prison for four years four months, suspended, with a commitment to the California Rehabilitation Center; and (3) state prison for four years four months, suspended, and 520 days of local time with a waiver of credits and the 365-day limit on jail time as terms of probation. These options all were inconsistent with the plea agreement which provided for no initial state prison sentence.

Defense counsel discussed the options with defendant and stated, "[S]he would like to be granted probation and receive 520 days, waiving her credits with the understanding she will receive a suspended prison term." He represented that defendant had conquered her heroin addiction, and continued, "She is . . . afraid if she goes to state prison, she will be exposed to things she doesnt want to be exposed to. She really takes her sobriety seriously." Thereafter, the court sentenced defendant in accordance with the third option.

Defendant changed counsel and moved to withdraw her plea. The court denied the motion on two grounds: (1) defendant acknowledged and waived her right to withdraw her plea at the time of sentencing; and (2) she expressly requested formal probation under the terms ordered.

DISCUSSION

I

The Defendant is Entitled to the Benefit of her Bargain

"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. The punishment may not significantly exceed that which the parties agreed upon." (People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker).) Whether a defendant has effectively waived her objection to punishment which exceeds the terms of the bargain by failure to raise it at sentencing depends on whether the court complied with the requirements of Penal Code section 1192.5. (Ibid.)

All further statutory references are to the Penal Code unless otherwise indicated.

That statute reads in part: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. [¶] If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available." (§ 1192.5.)

II

Defendant Waived her Right to Withdraw her Plea

"Absent compliance with the section 1192.5 procedure, the defendants constitutional right to the benefit of [her] bargain is not waived by a mere failure to object at sentencing." (Walker, supra, 54 Cal.3d at p. 1025.) However, where, as here, defendant has been advised of her rights under section 1192.5 and does not ask to withdraw the plea or otherwise object to the sentence, she has waived the right to complain of the sentence later. (Ibid.) Based on the Supreme Courts decision in Walker, the Court of Appeal, Fifth Appellate District concluded that "there [was] no requirement that the trial court `offer the opportunity to withdraw the plea at the sentencing hearing." (People v. Murray (1995) 32 Cal.App.4th 1539, 1546.) Defendant is required to move for withdrawal of the plea at sentencing, and waives the right to object to deviation from the plea agreement by failing to do so. (Ibid.)

We conclude the trial court did not abuse its discretion in denying defendants motion on the ground she had waived any objection to her sentence by expressly requesting one of the three options offered by the court. She was represented by counsel at both the change of plea and sentencing hearings. Defendant discussed the sentencing options with counsel before asking that the court grant probation on condition she serve 520 days of local time.

The record also supports the courts finding that defendant had earlier acknowledged her rights under section 1192.5 by initialing the admonition on the change of plea form. Together with her failure to object at sentencing, this act was sufficient to establish waiver under Walker, supra, 54 Cal.3d at pages 1024-1025.

Although we recognize that change of plea forms are useful in busy courts, they often lead to the type of difficulty encountered here. These forms should not be viewed as a replacement for a thorough and effective oral admonishment by the judge at the change of plea hearing.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND, P.J. and NICHOLSON, J.


Summaries of

People v. McDonald

Court of Appeals of California, Third District.
Nov 13, 2003
No. C043782 (Cal. Ct. App. Nov. 13, 2003)
Case details for

People v. McDonald

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SUSIE JEAN MCDONALD, Defendant…

Court:Court of Appeals of California, Third District.

Date published: Nov 13, 2003

Citations

No. C043782 (Cal. Ct. App. Nov. 13, 2003)