Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County, Super. Ct. No. TCF135232, Patrick J. O’Hara, Judge.
John L. Staley, 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, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Pursuant to a negotiated agreement, Benny Christopher Miranda, Jr., pled guilty to two felonies and admitted a strike prior, in return for which the court dismissed a third felony, imposed and suspended execution of a six-year twice-the-aggravated-term sentence under the three strikes law, and granted him probation after emphasizing that he had six years hanging over his head. After his first violation of probation, the court ordered his probation reinstated after again emphasizing that he had six years hanging over his head. After his second violation of probation, the court terminated his probation and ordered the imposition of the suspended six-year sentence.
ISSUE ON APPEAL
On the theory that a grant of probation dismisses a strike prior by operation of law, Miranda argues that his three strikes law sentence violated his right to due process. Since an unauthorized sentence was the sine qua non of the negotiated agreement here, we will reverse the judgment and return the parties to the status quo ante. Accordingly, we will remand the matter with directions to set aside the negotiated agreement, to allow Miranda to withdraw his pleas and his admission, to reinstate the original charges, and to conduct further proceedings as appropriate.
PROCEDURAL HISTORY
On October 19, 2004, a felony complaint charged Benny Christopher Miranda, Jr., with two counts of forgery (§§ 475, subds. (a), (b)) and one count of receiving stolen property (receiving) (§ 496, sub d. (a)) and alleged a 1995 robbery prior as a strike prior (§§ 211, 667, sub d. (e)(1), 1170.12, sub d. (c)(1)). On November 9, 2004, he pled guilty to the forgery counts, agreed to pay restitution, and admitted the strike prior, in return for which the court, emphasizing that he had “six years hanging over his head,” referred the matter to probation and reserved the right to withdraw from the negotiated agreement at any time before sentencing but otherwise agreed to dismiss the receiving count at the time of sentencing. On December 7, 2004, the court imposed a six-year sentence (double the aggravated three-year term on one forgery and double the two-year midterm concurrently on the other forgery), dismissed the receiving count, suspended execution of sentence for three years, and granted probation on the conditions, inter alia, that he serve 365 days in the county jail with credit for time served and that afterward he complete a residential treatment program.
All statutory references are to the Penal Code.
On June 7, 2005, the probation officer filed a probation violation affidavit alleging willful failure to complete a residential treatment program. On June 29, 2005, after a contested hearing, the court found Miranda in violation of probation, ordered him to enroll in a residential treatment program within 60 days and to stay in the program for at least 90 days, and, emphasizing again that he had “six years hanging over [his] head,” otherwise reinstated probation on the same conditions as before.
On September 27, 2006, the probation officer filed a probation violation affidavit alleging that Miranda willfully failed not only to abstain from the use of drugs as shown by urine samples positive for cocaine, marijuana, and methamphetamine, but also to make restitution payments for the past 16 months. On December 21, 2006, Miranda admitted he was in violation of probation as alleged by the probation officer and pled no contest to the commission of a new forgery on September 7, 2006. (§ 475, sub d. (c).)
On January 18, 2007, the court terminated Miranda’s probation and ordered the imposition of the suspended aggregate six-year sentence (double the aggravated three-year term on one 2004 forgery and double the two-year midterm concurrently on the other 2004 forgery) and the two-year midterm concurrently on the 2006 forgery. With reference to the aggregate six-year sentence on the 2004 forgeries, the court issued a certificate of probable cause. (§ 1237.5, sub d. (a).) No appeal is pending from the judgment of conviction of the 2006 forgery.
DISCUSSION
After pleading and proof of a strike prior, the language of the three strikes law is “‘entirely clear and without ambiguity’” that probation is no longer an option. (People v. Superior Court (Roam) (1998) 69 Cal.App.4th 1220, 1228, quoting People v. Nobleton (1995) 38 Cal.App.4th 76, 81; §§ 667, sub d. (c)(2), 1170.12, sub d. (a)(2).) That is so here. The court emphasized twice – not only at the original probation and sentencing hearing but also at the first probation revocation hearing – that Miranda had six years hanging over his head. Now, after failing to comply with the terms and conditions of probation, Miranda cannot “‘trifle with the courts’” by invoking the appellate process to seek a lesser sentence. (Cf. People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057, quoting People v. Nguyen (1993) 13 Cal.App.4th 114, 123.) The grant of probation makes the unauthorized sentence in the negotiated agreement subject to correction on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
DISPOSITION
The judgment is reversed. The matter is remanded with the directions to set aside the negotiated agreement, to allow Miranda to withdraw his pleas and his admission, to reinstate the original charges, and to conduct further proceedings as appropriate.
WE CONCUR: Cornell, Acting P.J., Dawson, J.