Opinion
F073363
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. BRYAN PORTER, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF328163)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Bryan Porter pled guilty to threatening a peace officer (Pen. Code, § 71), and two counts of misdemeanor indecent exposure (§ 314, subd. (1)). Pursuant to the terms of the plea agreement, in exchange for pleading guilty to the three counts and admitting prior prison term allegations, the court sentenced Porter to a term of six years: two years for the mid-term sentence on the threatening a peace officer count, plus one year each for the four prior prison term allegations (§ 667.5, subd. (b)). Porter was ordered to serve two years of the term in county jail followed by four years on mandatory supervision under the Realignment Act (§ 1170). No time was imposed for the two misdemeanor indecent exposure convictions; however, the court imposed many terms and conditions to the mandatory supervision period.
All further references are to the Penal Code, unless otherwise stated.
Porter claims that five of the terms and conditions of supervision should be stricken or modified, including the prohibition of possession of pornography, the condition requiring the free flow of information between Porter's mental health providers and the probation department, that he should not possess narcotics, that he should comply with the treatment program ordered by probation, and that he had to pay for his sex offender counseling. Porter lastly asserts that he is entitled to an additional four days of presentence credit. In response, the People contend that Porter's status as a registered sex offender disqualified him from serving his time in custody in county jail under the Realignment Act. Having alleged that the sentence was unauthorized, the People recommend that the matter be remanded to the lower court to allow Porter to withdraw his plea.
For the reasons set forth below, we hold that the sentence was unauthorized and that the matter should be remanded to allow Porter to withdraw his plea. As the plea shall be withdrawn, we need not address Porter's challenges to the terms and conditions of his current sentence based on the plea agreement. Additionally, we find that Porter is entitled to four additional days of presentence credit.
We acknowledge the possibility that the same or similar terms may be agreed upon by the parties in a subsequent plea agreement. However, until such terms are imposed, it is uncertain whether the same constitutional issues shall arise. Accordingly, the claims are not presently ripe for judicial review.
FACTUAL BACKGROUND
The statement of the facts to which Porter pled is taken from the probation report.
On November 19, 2015, officers were called to a parking lot of a roller skating rink. The victim reported that Porter had exposed his genitals to her in the parking lot. Porter was found and identified by the victim. Porter was arrested and released from custody the next day.
On December 12, 2015, officers responded to a report of a male adult masturbating. They detained Porter due to his resemblance to the reported description of the suspect. The victim identified Porter and explained that she observed Porter masturbating in the presence of her, her sister, and her sister's children. Porter was arrested and, during transport to the jail, he repeatedly hit his head against the plexiglass barrier in the patrol car and threatened the officers at the jail. Porter remained in custody until the time of sentencing.
A plea agreement was struck between the parties in which Porter agreed to a six-year prison sentence. However, it was agreed that the sentence would be served under the Realignment Act (§ 1170, subd. (h)) in which Porter received a sentence of two years for threatening a peace officer to be spent in custody of the Tulare County Jail, and an additional four years on community supervision based on his four prior prison enhancements (§ 667.5, subd. (b)). No time was imposed for the misdemeanor charges. In imposing this sentence, the court noted that the law was not clear whether Porter could serve his time in jail as opposed to state prison. The court noted that "If it turns out that I have to send you to state prison, I'll let you withdraw your plea and we can start over again."
DISCUSSION
I. Unauthorized Sentence under the Realignment Act
Porter presented several challenges to his conditions of supervision on appeal. In response, the People contend that the parties entered into an unauthorized sentence, which cannot stand. Before we may entertain Porter's claims, we must first address whether the terms of the negotiated plea may stand.
A claim of an unauthorized sentence is reviewable on appeal even in the absence of an objection in the trial court; it is correctable at any time. (People v. Holman (2013) 214 Cal.App.4th 1438, 1450.) A challenged sentence falls within the "'unauthorized sentence'" exception (to the general rule that a specific objection to a sentencing error is required) when it "could not lawfully be imposed under any circumstance in the particular case," such that it is "'clear and correctable' independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354.) The claim presented by the People in this case is just such a claim.
Section 1192.5 provides in relevant part that "[w]here the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant ... cannot be sentenced on the plea to a punishment more severe than that specified in the plea ...." (Italics added.) Thus, "[w]hen 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), overruled on other grounds in People v. Villalobos (2013) 54 Cal.4th 177, 183.) A sentence that imposes a punishment more severe than that specified in the plea bargain not only violates section 1192.5, but also implicates due process concerns and raises a constitutional right to some remedy. (Walker, supra, at p. 1024.)
The People contend that Porter was not eligible for local custody under the Realignment Act based on him being a sex offender registrant under section 290. "The Realignment Act significantly changes felony punishment. Under prior law, felonies were offenses punished by death or imprisonment in state prison. [Citation.] The Realignment Act changes the definition of a felony to an offense punishable by death, imprisonment in state prison, or by 'imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.'" (People v. Lynch (2012) 209 Cal.App.4th 353, 357.) Defendants sentenced under the Realignment Act are generally committed to county jail instead of state prison. (People v. Griffis (2013) 212 Cal.App.4th 956, 961 (Griffis).) However, prison sentences are imposed if the defendant has current or prior serious or violent felony convictions, is required to register as a sex offender, or has sustained a section 186.11 aggravated white-collar crime enhancement. (Griffis, supra, at pp. 961-962.) With certain exceptions, felons sentenced under the Realignment Act are committed to county jail rather than state prison, may have a concluding portion of their sentence suspended in lieu of probation, and are not subject to parole. (§§ 3000 et seq., 1170, subd. (h)(1)-(3), (5).)
The legislative intent underlying the Realignment Act is codified in section 17.5. (Stats. 2011, ch. 39, § 5.) Section 17.5 states that the Legislature is committed "to reducing recidivism among criminal offenders." (§ 17.5, subd. (a)(1).) Because "policies that rely on building and operating more prisons ... will not result in improved public safety," the Legislature declares in section 17.5 that "California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety ...." (§ 17.5, subd. (a)(3)-(4).) The Legislature further declares in section 17.5 that "Realigning low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs, which are strengthened through community-based punishment, evidence-based practices, improved supervision strategies, and enhanced secured capacity, will improve public safety outcomes among adult felons and facilitate their reintegration back into society." (§ 17.5, subd. (a)(5).)
Under section 1170, subdivision (h)(3)(C), part of the Realignment Act, Porter is required to serve his sentence in state prison rather than county jail because he is required to register as a sex offender. (People v. Sheehy (2014) 225 Cal.App.4th 445, 447.) The plain language of the Penal Code clearly states that sexual offender registrants are not eligible to serve sentences in county jail under the Realignment Act and no court has interpreted the law differently. (People v. Sheehy, supra, at p. 447.)
Porter does not present authority to the contrary, rather he contends that the People are unable to challenge the sentence on appeal even if the trial court lacked authority to issue the sentence. It is true that a "negotiated plea agreement is a form of contract and is interpreted according to general contract principles." (Doe v. Harris (2013) 57 Cal.4th 64, 69.) When enforcing such an agreement, courts will apply general contract principles "'to give effect to the mutual intention of the parties.'" (People v. Shelton (2006) 37 Cal.4th 759, 767; see K.R. v. Superior Court (2017) 3 Cal.5th 295, 304.)
"The remedy for violation of a plea agreement depends on the circumstances of each case. [Citation.] The typical remedy is to allow the defendant to withdraw his or her guilty plea and go to trial on the original charges." (People v. Renfro (2004) 125 Cal.App.4th 223, 233 (Renfro).) Porter should be permitted to withdraw his plea when this matter is remanded to the trial court. He instead argues that he is entitled to specific performance of the plea. As explained below, this remedy is unavailable.
"Under certain circumstances, specific performance of the agreement is warranted, but 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." (Renfro, supra, 125 Cal.App.4th at p. 233.) Moreover, specific performance is not an available remedy when the negotiated sentence is invalid or unauthorized. (See People v. Jackson (1981) 121 Cal.App.3d 862, 869.) For example, when a plea agreement is silent concerning a defendant's term of parole for a second degree murder conviction, the sentencing court is nevertheless required to impose a parole term, which is mandatory and may not be the subject of plea negotiations. (In re Moser (1993) 6 Cal.4th 342, 357.) Likewise, a court may not specifically enforce a plea agreement preventing use of a defendant's conviction as a qualifying offense for a mentally disordered offender commitment, because application of the law relating to mentally disordered offenders is mandatory and may not be bargained away as part of a negotiated plea. (Renfro, supra, at p. 231.) Therefore, we must address whether local custody is a proper subject of plea negotiations in order to determine whether a negotiated plea granting custody in jail rather than prison is enforceable.
The Realignment Act does not provide discretion to courts to allow sex offender registrants to serve their sentence locally. As the location of custody is not subject to the discretion of the trial court, much like an award of victim restitution, the location may not be a subject of plea negotiations. (See, e.g., People v. Valdez (1994) 24 Cal.App.4th 1194, 1203 ["The Legislature left no discretion or authority with the trial court or the prosecution to bargain away the victim's constitutional and statutory right to restitution. As such, it cannot properly be the subject of plea negotiations."].)
A court cannot approve a plea bargain that includes a legally unauthorized sentence. The orders entered on the basis of such a bargain must be vacated. (In re Williams (2000) 83 Cal.App.4th 936, 945-946; see People v. Davis (1997) 57 Cal.App.4th 1404, 1408-1409.) The trial court here erred in allowing Porter to be placed in local custody. Its sentence, therefore, is unauthorized and the plea agreement based on an unauthorized sentence is unenforceable.
It is settled that when a plea rests to any significant degree upon a promise or agreement of the prosecutor, so that it is part of the inducement or consideration, the promise must be fulfilled. The United States Supreme Court has recognized that due process applies both to the procedure of accepting the plea and to implementation of the bargain itself. The violation of the bargain by an officer of the state raises a constitutional right to a remedy. This does not mean that any deviation from the agreement is constitutionally impermissible. The variance from the agreement must be significant, and, when it is, the violation of the plea agreement is not subject to harmless error analysis. The defendant is entitled to an appropriate remedy. (People v. Letteer (2002) 103 Cal.App.4th 1308, 1316; see Santobello v. New York (1971) 404 U.S. 257, 262; Walker, supra, 54 Cal.3d at p. 1024.)
When Porter entered into the plea agreement, a fundamental term of his plea was the fact that he would be placed in local custody. Local custody, as opposed to prison, is a significant variance. Even if Porter is amenable to a plea agreement where he would serve his time in custody in prison, it is too significant of a term of the plea agreement to allow the court to enforce the agreement even if so modified.
Of course, upon remand, the parties could agree to such terms, if desired.
II. Mootness
Here, due to the length of time to process Porter's appeal, it is likely that Porter has completed the initial two-year term of custody. Even if Porter has completed his term of custody and is no longer in county jail, the term of his sentence regarding the location in which he should serve time in custody is not moot as he again may be subject to further time in custody should he violate the terms of his mandatory supervision.
As a general rule, appellate review is limited to actual controversies; a case that involves "'only abstract or academic questions of law cannot be maintained.'" (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) "'"[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed." [Citation.]'" (Ibid.) In other words, "[a]n appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief." (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.)
As Porter has already served his initial time in custody, our decision will not change where Porter served his initial sentence. Under the Realignment Act, Porter must serve a term of mandatory supervision and, if violated, a court may revoke or terminate the terms of supervision and place Porter back in custody. (People v. Catalan (2014) 228 Cal.App.4th 173, 178-179; §§ 1203.2, 1203.3.) Had Porter not violated the terms of supervision, then he may not have been subject to further custody based on this conviction. However, records indicate that Porter violated the terms of his mandatory supervision on March 13, 2017, and was sentenced to 1,398 days of custody in county jail. The location of Porter's custody remains at issue and, as such, the appeal is not moot.
Porter filed a motion for request of judicial notice of records contained in Tulare Superior Court case No. VCF328163 regarding the violation of the terms of his mandatory supervision. We hereby grant the request. (Evid. Code, §§ 452, subd. (d)(1), 459; Cal. Rules of Court, rule 8.252(a)(2); People v. McCarthy (2016) 244 Cal.App.4th 1096, 1100, fn. 2.) --------
III. Presentence Custody Credit
Porter asserts that he should have received 85 days of presentence custody credits, but was only awarded 81 days. He asserts that he was not awarded actual credit for the two days that he spent in custody after his arrest for indecent exposure on November 19, 2015, along with the two additional days of custody credit resulting from the two additional days spent in custody. (See § 4019.) The People do not challenge the fact that Porter spent those two days in custody. Rather, the People contend that the two days in custody relate to a count of indecent exposure for which Porter was not imposed a term of confinement and, therefore, should not be counted against his sentence.
"If an offender is in pretrial detention awaiting trial for two unrelated crimes, he ordinarily may receive credit for such custody against only one eventual sentence." (In re Marquez (2003) 30 Cal.4th 14, 21.) Thus, "where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint." (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.) Here, Porter entered into a global plea agreement that, in exchange for the imposed sentence on the one felony count, he would not be subject to further custody for the two misdemeanor counts. The custody was a result of a resolution of all the charges brought against Porter, including the indecent exposure charge related to his arrest and two days spent in custody; as such, he is entitled to the additional four days of custody credit against his term.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court. The trial court is directed to vacate the guilty plea, and the case shall proceed in the manner directed by the trial court.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.