Opinion
C085092
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NCR11775)
Defendant Michael James Phillips contends the trial court erred when it sentenced him to a prison term that was longer than originally agreed by the parties and the court in a plea agreement. He asks us to remand and order the trial court to sentence him according to the terms of the agreement. The Attorney General agrees the trial court violated the agreement, but, recognizing the plea form's calculation of the maximum sentence was incorrect and the trial court wanted to sentence defendant to the maximum prison term, he argues we should remand to allow the court to sentence defendant to the time stated in the agreement, or, if the court is unwilling to sentence defendant to the agreed term, allow defendant to withdraw his plea.
We agree with the Attorney General. Ordering specific performance in this instance would limit the judge's sentencing discretion. The judge intended to impose the maximum possible sentence on defendant for the crimes to which he pleaded guilty. However, the limit the plea agreement imposed on the court's discretion resulted from a calculation error, which no party brought to the court's attention. It is in the best interest of justice for the trial court to exercise its discretion on remand aware of the true circumstances.
Defendant pleaded guilty to second degree burglary (Pen. Code, § 459) and possession of a billy club (§ 22210). He also admitted a prior serious conviction for first degree burglary within the meaning of the "Three Strikes" law. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) Under the plea bargain, the prosecutor moved to dismiss all other counts in this case and two trailing cases.
Undesignated statutory references are to the Penal Code. --------
The problem arises from the written plea agreement. The agreement correctly states the burglary and billy possession counts have sentencing ranges of 16 months minimum to three years maximum. It also correctly states defendant's prior strike will double the base term on both counts. But it errs in its statement of the aggregate maximum time of imprisonment. The agreement incorrectly states the aggregate maximum for these crimes is six years eight months. The correct aggregate maximum, using either felony as the principal term, is seven years four months, calculated as follows: six years for one of the felonies (the upper term of three years doubled for the strike) plus 16 months (one-third the two-year midterm doubled for the strike). (§§ 461, 1170, subd. (h), 22210.)
No one apparently brought this error to the court's attention, and the prosecutor, defendant, his counsel, and the trial judge signed the agreement with its erroneous maximum sentence.
At sentencing, defendant requested placement in a residential treatment program, and the prosecutor requested the low term. The trial court rejected both requests. Rejecting defendant's request, the court stated defendant had served multiple state prison terms, and he violated parole every time. The court said, "He never got it. And I don't see any reason why I should believe that he's gotten it now." As to the prosecutor's request, the court "[could not] in good faith and conscience follow that recommendation."
The probation department recommended the maximum term of seven years four months. The court followed that recommendation and imposed a sentence of seven years four months. Neither the probation department, the prosecutor, nor the court mentioned the plea agreement's six-year eight-month limit, and defendant did not object.
The trial court erred by sentencing defendant to a term greater than it approved in the plea form. Under section 1192.5, "if a plea agreement is accepted by the prosecution and approved by the court, the defendant 'cannot be sentenced on the plea to a punishment more severe than that specified in the plea . . . .' The statute further provides that if the court subsequently withdraws its approval of the plea agreement, 'the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.' (§ 1192.5; People v. Johnson (1974) 10 Cal.3d 868, 872.)" (People v. Masloski (2001) 25 Cal.4th 1212, 1217, fn. omitted.)
Because the trial court erred, our task is to determine the proper remedy. "The Supreme Court has . . . 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." (People v. Mancheno (1982) 32 Cal.3d 855, 860, citing Santobello v. New York (1971) 404 U.S. 257, 262 .)
"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, supra, 32 Cal.3d at pp. 860-861.)
The circumstances before us indicate the correct remedy is to remand this matter and provide the trial court the opportunity either to resentence defendant and enforce the plea agreement or withdraw its approval and let defendant withdraw his plea. The court was the party that broke the agreement, but the violation appears to be inadvertent, as no party recognized the error. The court's desire to impose the maximum sentence, however, potentially suggests the court would not approve the lesser sentence agreed to in the plea agreement had it known the true circumstances. Specific performance would limit the court's sentencing discretion in light of the calculation error and bind the court to a sentence it may consider to be unsuitable.
Defendant contends the appropriate remedy is specific performance. He argues he detrimentally relied on the bargain by admitting two felony counts and a strike prior. He also claims a remand without specific performance would harm him, as the prosecutor may seek to reinstate charges.
These arguments do not persuade us. Defendant will suffer no detrimental reliance, because if the trial court withdraws its approval or defendant withdraws his plea, the plea "may not be received in evidence in any criminal, civil, or special action or proceeding of any nature . . . ." (§ 1192.5, 5th par.) The prosecutor may seek to reinstate charges, but nothing prevents the prosecutor and defendant from negotiating a new plea bargain.
Because we find the trial court erred, we do not reach defendant's other arguments contending defense counsel rendered ineffective assistance and the trial court imposed an unauthorized sentence.
DISPOSITION
The judgment is affirmed in all respects except that defendant's sentence of seven years four months is vacated and the matter is remanded solely for resentencing consistent with this opinion wherein the trial court shall either resentence defendant to the maximum state prison term of six years eight months or allow defendant to withdraw his plea.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.