Opinion
E068003
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO SANCHEZ, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR036650) OPINION APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Reversed with directions. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant's amended motion for judicial notice, filed on May 30, 2017, is granted. (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.252.)
Defendant and appellant, Francisco Sanchez, appeals from the judgment entered after defendant pled no contest to second degree robbery (Pen. Code, § 211; count 1) and admitted two prison priors (§ 667.5, subd. (b)). After accepting defendant's no contest plea and admissions, the trial court dismissed defendant's remaining charges. The court sentenced defendant to four years in state prison and awarded him 269 days of custody credit, which included 35 days of presentence conduct credits awarded under section 2933.1.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court violated his plea agreement by not awarding him presentence conduct credits under section 4019. Defendant argues that the trial court therefore must order specific performance of the plea agreement and award him 199 additional days of presentence conduct credits. Defendant also contends the trial court committed reversible error by failing to conduct a Marsden hearing when he requested to replace his court-appointed attorney with private counsel. In addition, defendant argues he received ineffective assistance of counsel (IAC) when his trial attorney failed to honor defendant's request to withdraw his plea. Defendant further argues his waiver of his right to counsel at sentencing was not made voluntarily and intelligently. Finally, defendant argues his sentence should be reduced by one year because he was deprived of effective representation by his attorney. Defendant argues his attorney failed to advise him not to admit to his 2014 conviction as a felony prison prior because the 2014 conviction had been reduced to a misdemeanor.
People v. Marsden (1970) 2 Cal.3d 118.
We conclude the trial court erred in awarding defendant presentence conduct credits under section 2933.1, which were less than defendant agreed to in the written plea agreement approved by the court. When the court determined that the section 4019 formula for calculating presentence conduct credit did not apply to defendant, the trial court should have unambiguously advised defendant of this and permitted him to withdraw his no contest plea and either go to trial or negotiate a new plea agreement containing the appropriate presentence conduct credit provision. Because this constitutes reversible error, we need not address defendant's other contentions as moot. The judgment is accordingly reversed, and the matter is remanded to the trial court with directions.
On May 30, 2017, defendant also filed a petition for a writ of habeas corpus in this court (In re Francisco Sanchez, E068393), alleging his trial attorney provided constitutionally deficient representation. On June 5, 2017, this court ordered defendant's habeas petition be considered with the instant appeal for the sole purpose of determining whether an order to show cause should issue. We will resolve the habeas petition by separate order in In re Francisco Sanchez, E068393.
II.
FACTS
Because defendant pled no contest and he has raised only sentencing errors on appeal, the following summary of facts is brief and taken from the preliminary hearing transcript.
On July 26, 2016, M.A. (the victim), accompanied codefendant Crystal Hunt to Hunt's motel room. As the victim sat on the bed and began taking off his shoes, defendant suddenly came out of the bathroom with one of his hands behind his back. Defendant told the victim to "shut up, look down, and empty his pockets." Fearing defendant might be holding a gun behind his back, the victim complied, emptying out his pockets containing his wallet and cell phone. When the victim asked for his wallet back, defendant told him he could have either his wallet or car keys. The victim chose his car keys. Defendant permitted the victim to keep his keys and cell phone.
Later that day, after the victim left the motel, the victim reported the crime to the police. The police investigated the motel room and observed defendant leave the room. The police found Hunt in the motel room. Upon searching defendant, the police recovered the victim's wallet and a pocket knife belonging to the victim. The victim positively identified both defendant and Hunt as the perpetrators.
III.
ENFORCABILITY OF PLEA AGREEMENT
Defendant argues that the trial court breached the written plea agreement by failing to honor the agreed-upon presentence conduct credit provision. We agree.
A. Procedural Background
1. The Written Plea Agreement
On February 9, 2017, defendant initialed and signed a form plea agreement in which he agreed to plead no contest to second degree robbery (Pen. Code, § 211) and admitted two prison priors (Pen. Code, § 29800; Health & Saf. Code, § 11379, subd. (a)). The agreed-upon sentence was the low term of two years for the robbery conviction and one year for each of the prison priors, for an aggregate prison term of four years. It was agreed that defendant's remaining charges, six prison priors, would be dismissed.
Paragraph 3 (b) of the plea agreement states, in part: "Presentence credits (actual days + conduct credits per following formula)." The following presentence credit options were provided in the plea agreement form: "New 4019," "Old 4019," "2933.1", "None," and "Waived." The box preceding the "New 4019" option was checked. Under the "new" formula, "eligible prisoners could earn two days of conduct credit for every two days spent in local custody." (People v. Brown (2012) 54 Cal.4th 314, 318.)
Defendant also initialed various provisions included in the form plea agreement, including paragraph 10 (d), which states: "My attorney explained to me that other possible consequences of this plea and any admission of an enhancement(s) and/or any prior conviction(s) may be . . . [r]educed earning of custody credits." Defendant initialed paragraph 15 (a), which states: "I understand that even though the Court may approve the agreement for sentence set forth, the Court is not bound by the agreement, and that the Court may withdraw its approval at any time before pronouncement of judgment, in which case I shall be able to withdraw my plea should I desire to do so." On February 9, 2017, the day of the plea hearing, the parties and their attorneys signed the written plea agreement, and the court approved it.
2. The Plea Hearing
On February 9, 2017, the trial court conducted a trial readiness conference. Defendant, represented by his court-appointed attorney, James Brown, appeared at the hearing, along with the prosecutor, codefendant Hunt, and Hunt's attorney. The court announced it had received forms from defendant and Hunt requesting to plead guilty. The court proceeded to ask defendant and Hunt questions about their guilty pleas. The court told defendant and Hunt to let the court know if at any time they did not understand the court's questions or needed to talk to their attorneys before answering them.
The court showed defendant a copy of the plea form that defendant had signed and asked defendant if he recognized the copy as the same plea form he had signed; if defendant had enough time to review the plea form with his attorney; if he understood everything on the form; if the initials in the boxes on the form were his; and if his signature was on the last page. Defendant answered in the affirmative to each of these questions. The trial court then told defendant that he was giving up important constitutional rights by pleading guilty, including giving up his right to an attorney; the right to a jury trial; the right to remain silent; and the right to question witnesses and present evidence on his own behalf. Defendant acknowledged that he understood he was giving up these rights by pleading guilty.
The court told defendant he was pleading guilty to robbery and admitting having served two prior prison terms. Defendant was advised his total sentence would be four years in state prison, with the dismissal of two of his pending misdemeanor cases. Defendant agreed this was his understanding of the plea bargain. Defendant confirmed there was nothing else he needed to go over with his attorney. The court told defendant he was to return in March for sentencing.
In response to the court's inquiry as to whether there was anything else defendant wanted to ask his attorney or the court, the following discourse took place:
"DEFENDANT SANCHEZ: I do have a question. It's about my 80 percent, the days, that's going to be 80 percent. I just want to put that on the record.
"THE COURT: Might be 85.
"MR. BROWN: I represented that it's 85.
"THE COURT: It's not 80. It's at least 85 percent, could be 100. You could do all of that time depending on your conduct in prison and a bunch of other factors that are still to be determined in the future. But you should expect to do at least 85 percent of that time.
"DEFENDANT SANCHEZ: It's the two-year
"THE COURT: Four years.
"DEFENDANT SANCHEZ: Two-year enhancements.
"THE COURT: Two year low term for robbery plus two one-year enhancements, so a total of four.
"DEFENDANT SANCHEZ: That's fine.
"THE COURT: Clear on that?
"DEFENDANT SANCHEZ: Yes."
Defendant then pled no contest to the charge of robbery and stated he was doing so on the advice of his attorney. Defendant also admitted two prison priors. Defendant's attorney joined in his plea and admissions. The court found that defendant read and understood the declaration regarding changing his plea, the nature of the crime charged against him, and the consequences of his no contest plea. The court further found that defendant knowingly and intelligently waived his constitutional rights by personally entering his plea. The court approved counsels' stipulation that the factual basis for defendant's plea was contained in the preliminary hearing transcript. The court then ordered the case referred to the probation department for a report on credits and restitution. After defendant waived time for sentencing, the court set the sentencing hearing in March 2017.
The minute order for the plea hearing on February 9, 2017, states that the court entered defendant's plea of no contest to count 1 and admission of two priors, with dismissal of the remaining six prison priors. The minute order further states that defendant waived a probation report and the court ordered the matter referred to the probation department for a determination of defendant's credits and restitution.
It appears that at or after the plea hearing, the court clerk or someone else wrote on the written plea agreement form that defendant's two pending cases were dismissed, preparation of a probation report was waived, and the matter was referred "for credit/restitution memo."
3. Custody Credit Memorandum
On March 2, 2017, the county probation department filed a report entitled, "Credit for Time Served and Restitution Memorandum." The memorandum states that defendant signed a plea agreement, and the matter was continued and referred to probation for determination of credit for time served and restitution. The memorandum further states defendant was entitled to a total of 265 days of credit for time served, from July 26, 2016, to March 13, 2017. This includes 231 days for actual days in jail and 34 days of additional conduct credit calculated under section 2933.1, "as PC211, Robbery is a violent crime pursuant to PC667.5(c)(9) and a serious crime pursuant to PC1192.7(c)(19)."
4. Sentencing Hearing
At the sentencing hearing on March 16, 2017, the trial court indicated it had a transcript of the plea hearing on February 9, 2017. The court stated that the transcript stated that during the February 9 hearing, defendant argued that he had agreed in the written plea agreement to "new 4019 credits." The court said that the issue was what counsel and the court told him at the time of the plea hearing. Defendant interjected that, when he was executing the form plea agreement, he asked his attorney if he was going to get all of his credits. Defendant explained, "That's why the new 4019 was marked, so that was my understanding that I was gonna get my credits on halftime. And then the DA was telling me something about 80 percent, so I didn't understand what was going on so I asked - I think I asked the Court what was going on. I never agreed to anything other than what I signed for, which is I signed for new 4019 credits and that's - if that's not legal, that's what I agreed to, that's what I signed for. I don't know where the assumption is that I understood anything else other than what I signed for. [¶] And if that's not the case, as far as I'm concerned I don't want to - I want to withdraw my plea on my case because I didn't sign for 85 percent credits. I signed for what was on the plea deal and I don't know why he's assuming that I understood otherwise. I didn't. That's what I signed for."
The court asked defendant's attorney, James Brown, whether he wanted to respond, and he said, "no." The court then recited a portion of the previous plea hearing transcript in which the court had explained to defendant that he would be required to serve at least 85 percent of his sentence, and possibly even 100 percent. The court noted defendant had said, "That's fine," and that he was clear on that. In response, defendant agreed he had said this at the previous hearing but explained that "what I'm not clear on is my credits but what he told me was not on the transcript. . . . I was told I was gonna get all my credits and that's why I signed 4019." The court told defendant that he had said "something different at the time I took your plea. To the extent you're making a motion to withdraw your plea, I'm denying that motion. [¶] Mr. Brown, to be clear, is not making that motion on your behalf. So there is no legal basis for you to withdraw your plea. Based on the admitted mistake in the plea form, the discussion we had on the record, your own statements that came out of your mouth make it clear to me that you understood what you were signing up for, so I'm denying your request to withdraw your plea at this time."
Defendant responded that he wanted to "fire" his attorney and was going to "hire private counsel." In response to the court asking if defendant wanted to represent himself at the sentencing hearing, defendant said, "Yeah, I want to withdraw my plea." The court told defendant that request was denied, and then again asked defendant if he wanted to represent himself at the sentencing hearing. Defendant said, "yes."
The prosecutor interjected that she wanted to clarify the court's statement that a mistake was made in the plea regarding the checking of the box for the new section 4019 credits. The prosecutor stated the new section 4019 credits were calculated for defendant, and then acknowledged she had misspoken, because she was looking at codefendant Hunt's plea agreement form. The court confirmed that defendant was subject to the requirement of at least 85 percent completion of his sentence under section 2933.1. The court added that defendant's case was not a section 4019 case, because of the nature of his conviction.
The court further told defendant that he had a right to represent himself at the sentencing hearing that day, and warned defendant of the risks of doing so. Defendant said he did not understand how the court was going to sentence him legally, with his signature on the plea agreement. He did not believe sentencing him was legal. The court told defendant it did not agree but understood his position. The court concluded that based on its review of the transcript, "it is crystal clear . . . that [defendant] understood what [defendant was] signing up for. I have no doubts about that. I understand you're saying something different now. I am going by what you said and I'm holding the transcript in my hand. That's why I wanted to see it. The words that came out of your mouth, your mouth, said you understood. I'm going by that." Defendant responded, "Yeah, but I was going by what I signed for."
The court replied it had to make a determination based on conflicting evidence in the record and was going with the discussion that took place in court during the plea hearing. The court concluded it believed it was clear defendant understood the nature of the credits he would be awarded. The court noted defendant asked a specific question about his credits, and the court believed him when he said he understood. Defendant responded: "My question was regarding the time I was going to serve in prison. The credits that I was going to be awarded was the new 4019 credits. . . . [T]hat was my understanding that I was gonna get halftime when I was here and then I was going to do 85 percent when I was in prison." The court said that it understood defendant's position but was not going to let defendant withdraw his plea.
Defendant requested a continuance because he had surgery scheduled in a month. The court denied the continuance, finding there was no legal basis for one, and again asked defendant if he still wanted to represent himself. Defendant said he did and understood his rights. Defense counsel said an additional Faretta inquiry was unnecessary. The court then proceeded with the sentencing hearing. The court stated it was granting defendant's request to represent himself, and asked defendant if there was anything he wanted to say.
Faretta v. California (1975) 422 U.S. 806. --------
Defendant said he thought he was "being screwed." He added: "As far as my attorney lied to me. . . . [H]e lied to me, told me I was going to get my credits. My question was regarding my time that I was gonna serve if it's going to be 85 or 80 percent. But as far as my credits for the time what I already done, he told me that I was gonna get all my credits which would have been eight months which would have doubled to 16 months. Instead, I'm getting the bar. . . . I'm only getting 29 days credit for the eight months. And I understood that I was gonna get, you know, the eight months was gonna double to 16 months credit and then I was gonna go do 85 percent of my time in state prison. That was my understanding. But now he's telling me that I'm only gonna get 29 days credit for the eight months. I understood, yeah, I'm gonna do 85 percent of my time, but my credits, I'm being screwed eight months worth of credits and that's what he had told me."
The court again acknowledged it understood defendant's argument and asked if he was ready to proceed with sentencing. Defendant said he was. The court relieved his court-appointed attorney James Brown of representing defendant and permitted defendant to represent himself. The court then sentenced defendant to the low term of two years for robbery and one year each for the two prison priors. The court further awarded defendant custody credits of 234 days of presentence custody credit for actual days served, plus 35 days of presentence conduct credit under section 2933.1 (at 15 percent), over defendant's objection, for 269 days of total custody credits. The court explained that defendant's conviction for second degree robbery was a violent and serious felony, and this was why he was required to serve at least 85 percent of his total sentence. The court also dismissed defendant's "trailing misdemeanors."
B. Discussion
Defendant contends the trial court violated his plea agreement by not awarding the presentence conduct credits agreed to in the written plea agreement. Defendant argues that under the terms of the stipulated plea agreement approved by the court, his presentence conduct credits should have been calculated pursuant to the formula provided in section 4019. This would have resulted in defendant receiving an additional 199 days of credits. Because his presentence conduct credits were calculated under section 2933.1, defendant's presentence conduct credits were limited to 15 percent of his sentence. He therefore received only 35 days of presentence conduct credit, instead of 234 days. Defendant argues that the court's failure to honor a material term of the plea bargain made his plea voidable upon election. Defendant further asserts that his trial attorney committed IAC by not assisting him during the sentencing hearing in bringing a motion to withdraw his plea based on the trial court violating the presentence conduct credit plea term.
1. Law Applicable to Plea Agreements
"[A] plea agreement is interpreted according to the same rules as other contracts." (People v. Toscano (2004) 124 Cal.App.4th 340, 344; People v. Paredes (2008) 160 Cal.App.4th 496, 506 (Paredes).) This is because a plea agreement is, in essence, a contract between the defendant and the prosecution, which upon the court's approval, the court and parties consent to be bound. (People v. Vargas (2001) 91 Cal.App.4th 506, 533; Paredes, supra, at pp. 506-507.) "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 part of the inducement or consideration, such promise must be fulfilled.' (Santobello v. New York (1971) 404 U.S. 257, 262.) 'The [United States] Supreme Court has thus 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; accord, People v. Walker (1991) 54 Cal.3d 1013, 1024 ['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'].)" (Paredes, supra, at p. 507.)
Although contract principles generally apply to plea bargains, the rules governing contracts may require tempering in the context of a plea agreement. (Amin v. Superior Court (2015) 237 Cal.App.4th 1392, 1401.) This is for two reasons: First, because "'the defendant's underlying "contract" right is constitutionally based and therefore reflects concerns that differ fundamentally from and run wider than those of commercial contract law. [Citation.]' [Citation.] And second, plea bargains implicate the '"honor of the government, public confidence in the fair administration of justice, and the effective administration of justice. . . ." [Citation.]' [Citation.]" (Ibid.)
In construing the plea agreement in this case, we apply the ordinary standards of review applicable in cases involving the interpretation of contracts generally. (Paredes, supra, 160 Cal.App.4th at p. 507.) "[T]he 'interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.'" (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520; Paredes, supra, at p. 507.) However, if there is admissible, conflicting parole evidence, requiring the resolution of credibility issues, the substantial evidence test applies. (Paredes, supra, at p. 507.)
2. Breach of Plea Agreement
Defendant argues the court violated his right to due process by not awarding him the presentence conduct credits promised in the written plea agreement. The written plea agreement provision allowing for presentence conduct credits under section 4019 was clear. However, defendant was not statutorily entitled to conduct credits under section 4019 because he was convicted of a violent felony. Section 2933.1, subdivision (a) provides that, "[n]otwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." Subdivision (c) of section 2933.1 provides that, "[n]otwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail . . ., following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."
Defendant was convicted of robbery, which is one of the violent felonies listed in section 667.5, subdivision (c). (§ 667.5, subd. (c)(9).) As a consequence, under section 2933.1, defendant was not entitled to presentence conduct credits exceeding 15 percent of his actual presentence commitment time. Defendant and the People were nevertheless not precluded from agreeing to custody credits under section 4019, and could waive any statutory error under section 2933.1. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Myers (1999) 69 Cal.App.4th 305, 312.) However, the record indicates the trial court did not intend to award presentence conduct credit under section 4019, because doing so was improper under section 2933.1.
The record shows that during sentencing, the trial court found the section 4019 presentence conduct credit provision in the written plea agreement unacceptable. Therefore, the trial court unilaterally changed the term without providing defendant the option of withdrawing his no contest plea and renegotiating a new plea agreement or proceeding to trial. (People v. Segura (2008) 44 Cal.4th 921, 931 (Segura).) This was improper. "For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. [Citation.] If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' [Citation]; cf. People v. Superior Court Gifford (1997) 53 Cal.App.4th 1333, 1338-1339 [by statute the trial court may withdraw its approval prior to sentencing, permitting withdrawal of the negotiated plea].)" (Ibid.)
The trial court may have assumed that, before defendant pled no contest, defendant had agreed to changing the presentence conduct credit provision from applying the section 4019 formula to applying the section 2933.1 formula. But the record does not support such a conclusion. Before defendant pled no contest during the plea hearing, the trial court did not clearly explain to defendant that the section 4019 presentence conduct credit provision was incorrect; that the provision was being changed; and that the provision was being replaced with an alternative provision requiring calculation of presentence conduct credits under section 2933.1, which was less favorable to defendant. During the plea hearing, there was no mention on the record of section 4019 or 2933.1, presentence conduct credits, or amending the presentence conduct credit provision in the written plea agreement. There also was no amended written plea agreement reflecting the court's unilateral change in the presentence conduct credit provision. The record on appeal thus does not show that defendant was provided with clear notice of the court's unilateral change of a material term of the written plea agreement before defendant pled no contest.
The record further shows that defendant persistently objected at the sentencing hearing to the court not complying with the section 4019 presentence conduct credit term. After the trial court reviewed the transcript of the plea hearing, the court found that defendant knew and agreed, before entering his guilty plea, that his presentence conduct credits would be calculated under section 2933.1 not section 4019. The trial court based this finding on a discussion of custody credits during the plea hearing, during which the court explained to defendant that he would have to serve at least 85 percent of his four-year sentence. Defendant stated during the plea hearing that he understood this, and then pled no contest. But the transcript of the plea hearing does not demonstrate that it was clear the discussion concerned defendant's presentence conduct credits or that the presentence provision was being changed and defendant was in agreement with the change. Defendant asked the court to set aside his no contest plea when he realized at the sentencing hearing that the court was not complying with the section 4019 presentence conduct credit term.
Although the court had the authority to withdraw its approval of the plea agreement before sentencing, the trial court did not have authority to disregard the presentence conduct credit provision and unilaterally change the term to award presentence conduct credits under a different statute less favorable to defendant, without allowing defendant to withdraw his no contest plea. (Segura, supra, 44 Cal.4th at p. 931.) As the California Supreme Court explained in Segura, supra, at page 931, "'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] "A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, "[it] lacks jurisdiction to alter the terms of a plea bargain."'"
As stated in section 1192.5, "[w]here the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea." The court thus may not, as was done in the instant case, "effectively withdraw its approval by later modifying the terms of the agreement it had approved." (Segura, supra, 44 Cal.4th at p. 932.)
Here, at the time of sentencing, the trial court found that the presentence conduct credit provision, agreed to in the written plea agreement, provided the incorrect statutory formula for calculating presentence conduct credit. Because the court approved the written plea agreement, the court was bound to impose presentence conduct credits within the limits of that bargain or allow defendant to withdraw his no contest plea. (Segura, supra, 44 Cal.4th at pp. 931-932.) In considering the plea bargain unacceptable, the court failed to clearly state on the record that the court had rejected the provision and failed to allow the parties to amend the written plea agreement on the record, before defendant entered his plea. Alternatively, after defendant entered his plea, the court could have withdrawn approval of the plea at the time of sentencing but was then required to allow defendant to withdraw his plea. (Id. at p. 931.)
It was improper for the trial court simply to disregard the section 4019 presentence conduct credit provision and instead award presentence conduct credits under section 2933.1. (Segura, supra, 44 Cal.4th at p. 932.) The court may not in effect withdraw its approval of the written plea agreement by unilaterally modifying a term of the plea agreement previously approved. (Ibid.) The trial court therefore erred in imposing the alternative section 2933.1 presentence custody credit term, which was not agreed to in the written plea agreement, without giving defendant the option of withdrawing his plea and allowing him to proceed to trial or negotiate a new plea agreement.
IV.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court. If defendant moves to withdraw his plea within 30 days of issuance of the remittitur by this court, the trial court is directed to vacate the guilty plea. Otherwise, the plea shall remain in effect as previously ordered by the trial court, with presentence conduct credits awarded under section 2933.1.
NOT TO BE PUBLISHED IN OFFICAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.