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People v. Nou

California Court of Appeals, Second District, Third Division
Feb 10, 2011
No. B223001 (Cal. Ct. App. Feb. 10, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA073734 Joan Comparet-Cassani, Judge.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.


KLEIN, P. J.

Ricky Lomun Nou appeals the judgment (order revoking probation) entered following his plea of no contest to possession for sale of marijuana. (Health & Saf. Code, § 11359.) We conclude the sentence imposed upon violation of probation violated the terms of Nou’s plea bargain. We therefore reverse the judgment and remand with directions to resentence Nou in accordance with the plea bargain.

FACTS AND PROCEDURAL BACKGROUND

The evidence adduced at the preliminary hearing indicated that, on March 13, 2007, Nou was stopped by an officer of the Long Beach Police Department for expired registration. The officer searched Nou’s car and found two containers of marijuana in the glove compartment. Nou’s cell phone contained text messages that indicated Nou was involved in the sale of marijuana. After he was arrested, Nou made incriminating statements confirming the officer’s suspicion. A detective assigned to the drug investigation unit testified that, in his opinion, Nou possessed the marijuana for sale.

An information charged Nou with possession for sale of marijuana and transportation of marijuana in violation of Health and Safety Code sections 11359 and 11360, subdivision (a), and further alleged Nou had a prior conviction of violating Penal Code section 245, subdivision (a)(1) within the meaning of the Three Strikes law.

On June 19, 2007, Nou entered into a plea bargain pursuant to which he plead no contest to possession for sale of marijuana and admitted the prior conviction allegation and, in exchange, the People agreed to dismiss the remaining count and strike the prior conviction allegation. The plea bargain provided that Nou would be granted probation with the understanding that, upon successful completion of 18 months of probation, he could petition to have the case dismissed.

After Nou waived his constitutional rights, the prosecutor advised Nou that, as a result of his plea, he could be sentenced to state prison for up to three years upon a violation of probation and that he would be required to perform 30 days of Cal Trans service. Nou then plead no contest as indicated and admitted the prior conviction within the meaning of the Three Strikes Law. The trial court suspended imposition of sentence, placed Nou on felony probation for three years and granted the People’s motion to dismiss count two and strike the prior conviction allegation.

On January 11, 2010, Nou appeared before the trial court on an alleged violation of probation. The People presented the testimony of four witnesses and Nou testified in his own defense. After counsel argued the matter, the trial court found Nou had engaged in an incident of domestic violence and thereby had committed a violation of probation. The trial court sentenced Nou to the middle term of two years, doubled under the Three Strikes law to four years, and gave Nou credit for time previously served. When Nou’s counsel objected the prior conviction allegation must have been stricken at the time of the plea bargain because Nou had been granted probation, the trial court noted Nou admitted the prior conviction allegation when he entered the no contest plea and stated Nou could have been granted probation notwithstanding that admission.

CONTENTIONS

Nou contends the four-year term imposed by the trial court violated the terms of the plea agreement and the matter must be remanded with directions to resentence Nou to the middle term of two years in state prison.

DISCUSSION

Nou contends that, under the plea bargain, the maximum term that could be imposed upon violation of probation was three years is state prison. Thus, the four-year sentence imposed by the trial court exceeded the maximum term permitted by the plea bargain and violated his right to due process. (Santobello v. New York (1971) 404 U.S. 257, 262-263 [30 L.Ed.2d 427].)

Nou additionally contends that, because striking the prior conviction allegation was an essential term of the plea bargain, the trial court lacked the authority to sentence him under the Three Strikes law. Further, the trial court’s imposition of the middle term of two years demonstrates it found no aggravating factors. Therefore, even though the plea bargain contemplated a maximum term of three years, the matter must be remanded to the trial court with directions to sentence Nou to the middle term of two years.

The People concede the prior conviction allegation was not available to enhance Nou’s sentence under the Three Strikes law. However, they contend that, on remand, the trial court may consider the prior conviction in determining whether to impose an aggravated sentence. (People v. Alvarez (1982) 127 Cal.App.3d 629, 635.)

It appears the People have the better argument. Initially, we note it is beyond dispute that, as a matter of due process, a defendant is entitled to the benefit of a valid plea bargain. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) Accordingly, a trial court must sentence in accord with the negotiated terms of an agreed plea. (Ibid.) Here, the four-year term imposed by the trial court exceeded the maximum term agreed to by the parties.

Further, because the prior conviction allegation was stricken as part of the plea agreement, the trial court may not use it to impose an enhanced sentence under the Three Strikes law. However, because the prior conviction allegation was admitted by Nou and then stricken, rather than dismissed, it remains available for use as a factor in aggravation. (People v. Alvarez, supra, 127 Cal.App.3d at p. 635; cf. People v. Harvey (1979) 25 Cal.3d 754, 758 [facts of an unrelated count dismissed as part of a plea bargain may not be used to impose an upper term sentence; In re Knight (1982) 130 Cal.App.3d 602, 605 [use of prior convictions allegations dismissed as part of a plea bargain to impose an upper term violated the plea bargain].)

Because the prior conviction allegation was admitted by Nou and then stricken as part of the plea bargain, the trial court may consider the prior conviction as a factor in aggravation upon resentencing Nou.

DISPOSITION

The judgment (order revoking probation) is reversed and the matter is remanded to the trial court for resentencing.

We concur: CROSKEY, J., ALDRICH, J.


Summaries of

People v. Nou

California Court of Appeals, Second District, Third Division
Feb 10, 2011
No. B223001 (Cal. Ct. App. Feb. 10, 2011)
Case details for

People v. Nou

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICKY LOMUN NOU, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Feb 10, 2011

Citations

No. B223001 (Cal. Ct. App. Feb. 10, 2011)