Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. FCR205448 & VCR180615
Swager, J.
This appeal comes before us following the resolution of two criminal cases filed against defendant: in one (Case No. VCR180615), defendant entered a negotiated plea of guilty to a charge of grand theft by embezzlement (Pen. Code, § 487, subd. (a)); in the other (Case No. FCR205448), she admitted a violation of her probation. The trial court placed defendant on probation for a term of three years for the grand theft conviction (Case No. VCR180615), and her probation was reinstated in Case No. FCR205448. In this appeal she argues that imposition of a probation condition that prohibits her from handling cash or finances of her employer violated the terms of her plea agreement. We find that no violation of the plea agreement occurred, and affirm the judgment.
All further statutory references are to the Penal Code, unless otherwise indicated.
In light of the plea and the single issue presented by defendant of the validity of the probation condition, we need only concisely recite the facts pertinent to the underlying offenses in the two cases, which are taken from the probation reports in the two cases.
Case No. FCR205448
Between November of 2002 and January of 2003, defendant stole and cashed personal checks from her parents, and made unauthorized purchases on her mother’s credit card. She entered a no contest plea to one count of forgery (Pen. Code, § 470, subd. (a)) on January 31, 2003.
Case No. VCR180615
In June of 2005, defendant was employed at an Allstate Insurance office in Vallejo, where her duties included accepting payments from clients of the business. Defendant made entries of the payment amounts she received into the computer, which she subsequently voided and entered in lesser amounts. She retained the difference between the amounts actually paid and the incorrect lesser amounts she ultimately entered into the computer.
DISCUSSION
The sole contention made by defendant is that the trial court violated her plea agreement by imposing a probation condition that she “not be employed in any position that handles cash or finances of the employer.” She claims that the condition “did not comply with, but rather exceeded, the terms of the plea agreement.” Defendant’s position is that a plea agreement is violated “if probation is granted on conditions that include a ‘significant,’ non-‘standard’ condition not agreed to in the plea bargain.” She further asserts that the employment condition constituted a “significant” variance from the punishment contemplated by the plea bargain. Finally, defendant argues that the “appropriate remedy” for the violation “is to strike the probation condition” and otherwise grant her “specific performance of the plea agreement.”
The plea agreement was articulated at the change of plea hearing on July 3, 2006. Defendant agreed to enter a guilty plea to a violation of section 487, subdivision (a), and admit a violation of her probation in Case No. FCR205448. The stated “proposed disposition” in Case No. VCR180615 was probation with a maximum one-year county jail term, and restitution to the victim. As to Case No. FCR205448, a “promise of probation” was also given to defendant, contingent upon approval of the sentencing judge in that proceeding. Defendant was advised that if the sentencing judge in Case No. FCR205448 did not “agree with the probationary sentence” after reviewing the pre-sentence reports, she would be given an opportunity to withdraw her plea. She was also advised of her rights and the consequences of the plea. The plea and admission of a probation violation were then accepted and the case was set for sentencing.
At the sentencing hearing on July 25, 2006, imposition of sentence was suspended and defendant was placed on probation for three years on the condition that she serve 260 days in county jail. Restitution to the victim was ordered, along with other fees and fines. Specified conditions of probation included abstention from drugs and alcohol, drug testing, search and seizure, participation in counseling and therapy programs as directed by the probation department, full-time employment, and no contact with the victim. Due to the embezzlement offense, which was defendant’s “second theft conviction,” the prosecution also suggested that the court order defendant to avoid “a job where she handles cash.” Despite defense counsel’s objection that, “It’s going to be very difficult for her to get any employment,” the court stated: “I will make it a term of probation you not be employed in any position that handles cash or finances of the employer.” Defendant stated that she understood and accepted the announced conditions of probation. The written order of probation differs from the court’s oral pronouncement in that it provides: “Do not be employed any place where handle money transaction.” (Sic.)
I. Defendant’s Failure to Object to the Condition .
We first briefly address the failure of defendant to make an objection to the condition when it was announced in the trial court. Defendant neither objected to the condition nor moved to withdraw her plea on the ground that her punishment exceeded the plea agreement. It is established that “a litigant is generally ‘not permitted to bypass a remedy in a lower court and reserve [her] grievance for submission to a higher court,’ and that an appeal ‘brings before the appellate court for review only those matters which were before the lower court when it made its decision.’ [Citation.]” (People v. Burns (1993) 20 Cal.App.4th 1266, 1271.) However, in the present case the trial court failed to specifically advise defendant as required by section 1192.5 of her right to withdraw her plea if the sentence imposed did not adhere to the terms of the plea bargain. Defendant was given a more limited admonishment by defense counsel and the trial court: that if the sentencing judge did not agree “with the probationary sentence” in Case No. FCR205448 she “could withdraw her plea if she wanted to and proceed.” The admonishment in the form given by the court did not encompass the necessary “judicial advisement of the defendant’s right to withdraw the plea if the sentence imposed is more severe than that called for in the plea bargain. (§ 1192.5.)” (People v. Knox (2004) 123 Cal.App.4th 1453, 1459.)
Former “[s]ection 1192.5 provides in pertinent part: ‘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 such case, the defendant shall be permitted to withdraw his plea if he desires to do so.’ ” (People v. McClellan (1993) 6 Cal.4th 367, 372, fn. 4.)
“If a defendant has not been properly admonished, a failure to object to increased punishment does not waive the defendant’s right to the benefit of the bargain.” (In re Jermaine B. (1999) 69 Cal.App.4th 634, 640; see also People v. Walker (1991) 54 Cal.3d 1013, 1024–1025; People v. Clark (1992) 7 Cal.App.4th 1041, 1048–1049.) “ ‘Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. “Of course there can be no waiver of a constitutional right absent ‘an intentional relinquishment . . . of a known right or privilege.’ [Citation.] No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. [Citation.]” ’ [Citation.]” (People v. Collins (2003) 111 Cal.App.4th 726, 731.) Without compliance with the section 1192.5 requirement to admonish defendant of her right to withdraw the plea, she “ ‘cannot be deemed to have waived’ ” her rights expressly or “ ‘by silent acquiescence.’ ” (People v. Crandell (2007) 40 Cal.4th 1301, 1308, citing People v. Walker, supra, at p. 1030; People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879.)
II. The Imposition of a Restriction on Defendant’s Employment as a Probation Condition.
We proceed to the substance of defendant’s claim that the prohibition placed upon her employment in any position in which she “handles cash or finances” of her employer constitutes a breach of the plea bargain. The focus of our inquiry is whether the employment restriction significantly deviated from the terms of the plea agreement. “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 . . . .’ ” (People v. Masloski (2001) 25 Cal.4th 1212, 1217.) “It is settled that ‘when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.’ [Citation.] The Supreme Court has recognized that due process requirements apply not only to the taking of the plea, but also to implementation of the bargain. [Citation.] ‘It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.’ [Citation.] ‘This does not mean that any deviation from the terms of the agreement is constitutionally impermissible.’ [Citation.] Rather, the variance must be ‘ “significant” in the context of the plea bargain as a whole to violate the defendant’s rights.’ [Citations.]” (People v. Arata (2007) 151 Cal.App.4th 778, 786–787, italics omitted.)
We interpret the terms of the plea agreement under fundamental contract principles. (People v. Armendariz (1993) 16 Cal.App.4th 906, 911; People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) “ ‘The court should accord an interpretation which is reasonable (Civ. Code, § 1643) and which gives effect to the intent of the parties as it may be interpreted from their entire agreement . . . .’ [Citation.]” (People v. Haney (1989) 207 Cal.App.3d 1034, 1038, citing Addiego v. Hill (1965) 238 Cal.App.2d 842, 846.) Using the paradigm of contract law, “courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations.” (People v. Nguyen (1993) 13 Cal.App.4th 114, 120, fn. omitted.) “ ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
Here, discussion of the nature of probation conditions is entirely absent from the plea negotiations. Defendant was given a “promise of probation,” with a “maximum one-year county jail” term, and an order for restitution to the victim in the amount of $1,836. Otherwise, the record is silent on the probation conditions to be imposed upon defendant.
Defendant claims that because the limitation upon her approved employment duties is neither a “ ‘standard’ condition of probation” nor was expressly mentioned in the plea negotiations, the sentencing court was precluded from imposing it without violating the plea agreement. While defendant acknowledges the lack of any settled definition of a “standard” probation condition, she maintains that the restriction upon her employment in any capacity where she may have contact with the cash or finances of her employer cannot “be deemed, in any meaningful sense of the term, to be a ‘standard’ condition of probation.” She therefore argues that the condition at issue here “being both ‘significant’ and non-‘standard,’ exceeded the terms of [her] plea bargain.”
We decline to adopt defendant’s suggestion to essentially limit the probation conditions that may be imposed following a plea bargain to those that fall within the nebulous definition of “standard” – at least if “standard” refers only to those conditions typically stated on pre-printed forms. Rather, the determinative test is whether the plea “ ‘rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ [Citation.]” (People v. Quartermain (1997) 16 Cal.4th 600, 620.) Of course, the prosecutor must abide by any explicit promise to exclude a particular condition of probation from the punishment that may be imposed upon the defendant. “ ‘ “ ‘A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.’ ” ’ [Citation.] ‘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.’ [Citation.]” (People v. Vargas (2001) 91 Cal.App.4th 506, 533.)
Here, the probation condition at issue was neither excluded from consideration nor even mentioned in the negotiated plea bargain. “[T]he imposition of an additional sentence term does not constitute a violation of a plea agreement if the term was not encompassed by the parties’ plea negotiations.” (People v. Lopez (1998) 66 Cal.App.4th 615, 636.) Defendant was not guaranteed or assured by either the trial court or the prosecutor that upon entry of her plea she would be granted probation free from any particular probation conditions. (See People v. Chaklader (1994) 24 Cal.App.4th 407, 413; People v. Abdullah (1992) 6 Cal.App.4th 1728, 1737.) No probation conditions were specifically articulated in the description of the parties’ agreement, and neither the prosecution nor the defense mentioned that imposition of conditions related to defendant’s employment would be excluded from consideration by the court. Thus, exclusion of the condition from the terms of defendant’s probation was not an inducement or consideration for the plea. (People v. Quartermain, supra, 16 Cal.4th 600, 619.) Defendant received just the disposition she bargained for and could reasonably expect from the agreement: probation with appropriate conditions as determined by the sentencing court.
Defendant also had no reason to expect that the plea agreement itself would somehow divest the sentencing court of discretion to impose an appropriate condition of probation related to her employment. (See People v. Tang (1997) 54 Cal.App.4th 669, 682.) In fact, without any promises to the contrary, she was fully aware that the employment condition was a likely consequence of her plea. The trial court has broad discretion to routinely impose conditions of probation where the conditions imposed bear a reasonable relationship to the crime or the rehabilitation of the offender, and the plea bargain in the case before us did not in any way limit the potential probation conditions available to the court. (People v. Torres (1997) 52 Cal.App.4th 771, 776.) Further, a probation condition “will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Rugamas (2001) 93 Cal.App.4th 518, 522.) “Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent, supra, at p. 486; People v. Zaring (1992) 8 Cal.App.4th 362, 370.)
Imposition by the trial court of a proscription against defendant’s employment in a position that affords her access to her employer’s assets was entirely reasonable, given the nature of the offenses she has committed. In the past few years she has demonstrated a propensity to abscond with money or property of others when given a ready opportunity to do so: she made unauthorized use of her parents’ personal checks and credit cards; she was arrested for shoplifting in a Wal-Mart store, with the admitted intention of returning the items for a cash refund; she acknowledged other instances of shoplifting to support her drug use; she admitted to an accusation of theft of personal items from a cellmate in county jail; and most recently she embezzled money from her employer by altering the computer records of customer payments. A condition that curtails defendant’s association or connection with a specified activity or situation that may create or increase the likelihood of her participation in the same criminal behavior she has exhibited in the past properly serves a rehabilitative purpose and is reasonably designed to prevent future criminal behavior. (See U.S. v. Showalter (7th Cir. 1991) 933 F.2d 573, 574–575; Malone v. United States (9th Cir. 1974) 502 F.2d 554, 555–556; Porth v. Templar (10th Cir. 1971) 453 F.2d 330, 334; Whaley v. United States (9th Cir. 1963) 324 F.2d 356, 359; People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
We conclude that where a probation condition falls within the lawful discretion of the trial court under the facts presented, it may be imposed upon the defendant following a negotiated guilty plea unless the record of the plea negotiations indicates that a promise was made to omit the condition, and the plea rests in significant degree on that promise or agreement. (People v. Lopez, supra, 66 Cal.App.4th 615, 636.) Here, the probation condition is not only valid, but falls within the reasonable expectations of the parties to the plea agreement. Defendant was not given a restitution fine or other penalty that was an unexpected, significant deviation from the expected disposition based on the negotiated terms of the plea bargain. (Cf.,People v. Walker, supra, 54 Cal.3d 1013, 1024; People v. Brown (2007) 147 Cal.App.4th 1213, 1223–1224.) Instead, we find that the minimal restriction on the potential employment positions open to defendant was a foreseeable, appropriate and lawful condition of her probation. (People v. Campbell (1994) 21 Cal.App.4th 825, 829–830; People v. Lopez, supra, at pp. 635–636.) Nor did the parties express a limit upon the content of probation conditions available to the sentencing court as part of the bargain. No suggestion appears in the record before us that the condition was the subject of the negotiations which culminated in defendant’s plea. (People v. Lopez, supra, at p. 636.) The silent plea agreement demonstrates that the parties intended to leave the selection of appropriate probation conditions to the discretion of the sentencing court. (People v. Sorenson (2005) 125 Cal.App.4th 612, 619.) Thus, defendant received the benefit of her bargain and the sentence did not exceed or contravene the plea agreement. (People v. Crandell, supra, 40 Cal.4th 1301, 1309; People v. Olea (1997) 59 Cal.App.4th 1289, 1297.)
In Walker, the offense to which the defendant had agreed to plead guilty carried a potential seven-year sentence and a $10,000 punitive fine, but under the negotiated plea agreement the defendant was to receive a five-year term of imprisonment and no punitive fine. At the subsequent sentencing hearing, the trial court imposed the agreed-upon five-year sentence, but also a substantial ($5,000) restitution fine. In concluding that the imposition of such a substantial fine constituted a violation of the plea agreement in Walker, the California Supreme Court implicitly found that the defendant in that case reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed. Moreover, in reaching this conclusion, the court reasoned that, because the amount of an appropriate restitution fine imposed upon a defendant could vary significantly depending upon the specific facts of a given case, “the restitution fine should generally be considered in plea negotiations.” (People v. Walker, supra, 54 Cal.3d, 1013, 1024; see also People v. McClellan, supra, 6 Cal.4th 367, 379–380; In re Moser (1993) 6 Cal.4th 342, 356.)
III. Discrepancy Between the Court’s Oral Pronouncement of the Condition and Written Probation Order.
Defendant points out in a footnote that probation condition as set forth in the written order of probation is “broader” in scope “than that imposed by the court.” “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Accordingly, the written order of probation must be modified to be consistent with the court’s oral pronouncement.
Disposition
The case is remanded to the trial court with directions to correct the minute order and order of probation to reflect the court’s oral pronouncement of the condition of probation that defendant “not be employed in any position that handles cash or finances of the employer.” The judgment is otherwise affirmed.
We concur: Marchiano, P. J., Stein, J.