Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD210927, Charles G. Rogers, Judge.
HALLER, J.
Thipsamon Sengamphan pleaded guilty to attempted murder on a theory of aiding and abetting. Her plea agreement provided that she would receive a sentence in the range of five to 19 years. At sentencing, the trial court concluded the plea agreement did not permit the court to consider a grant of probation. Challenging this ruling on appeal, Sengamphan contends the judgment must be reversed and the case remanded because the court failed to hear and admit testimony proffered by the defense that would support an interpretation of the plea agreement to include the probation option. For reasons we shall explain, we conclude the trial court properly interpreted the plea agreement to preclude the probation option, and there is no basis for reversal.
FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2007, Sengamphan was a passenger in a car with several males who were members of a gang. At about 10:40 p.m., occupants of the car shot at a residence where a rival gang member lived. At about 10:45 p.m., occupants of the car shot two males who were outside an apartment complex where rival gang members lived. Sengamphan and three codefendants were charged with one count of shooting at an inhabited dwelling and two counts of attempted murder with gang and firearm enhancements.
Because this case arises from a guilty plea, the facts of the crime are derived from the probation report and preliminary hearing.
The Plea Agreement
On February 13, 2008, Sengamphan pleaded guilty and promised to cooperate with the prosecution in the case against the codefendants. The plea agreement is set forth in several written documents and recorded oral statements generated from the February 13 plea agreement. These include the written Cooperation Agreement between Sengamphan and the prosecution; the videotaped and transcribed oral recitation of the Cooperation Agreement at a meeting between the parties; the written guilty plea form; and the transcribed change of plea hearing before the trial court. Deputy District Attorney Annette Irving negotiated the agreement with defense attorney Craig Leff.
The Cooperation Agreement provides: "In exchange for [Sengamphan's] cooperation with law enforcement in providing truthful information/testimony in the prosecution of her co-defendants' case, the District Attorney agrees that [Sengamphan] will be sentenced by the Court ranging from a low term of five years State Prison to a maximum of 19 years State Prison.... The ultimate sentence is a discretionary one, and rests entirely with the sentencing Court." (Italics added.) The Cooperation Agreement includes provisions stating that Sengamphan understands and agrees that she is entitled to only the benefits and commitments set forth in the Cooperation Agreement, and there were no promises between Sengamphan and the district attorney other than those described in the Cooperation Agreement.
At the videotaped Cooperation Agreement meeting, the deputy district attorney orally recited the sentencing agreement: "What we've agreed upon in sentencing is again,... in... exchange for your cooperation with law enforcement in providing truthful information and testimony... in the prosecution of the co-defendants in this case[,] [t]hat you will be sentenced by the discretion of the court to a minimum term of five years and the maximum term of 19 years in state prison." (Italics added.) The deputy district attorney asked Sengamphan if she understood this, and Sengamphan responded "Yes." The deputy district attorney also asked, "Is it a fair statement that no other promises have... been made to you... in this case?" Sengamphan responded "Yes."
The guilty plea form initialed and signed by Sengamphan states: "In exchange for Sengamphan's cooperation with law enforcement in providing truthful information/testimony in the prosecution of her co-defendants' case... Sengamphan will be sentenced by the Court ranging from low term of 5 years state prison to a maximum of 19 years State Prison. Dismiss balance of complaint." (Italics added.) The guilty plea form further provides: "I have not been induced to enter this plea by any promise or representation of any kind" other than the delineated agreement with the district attorney.
At the change of plea hearing, the trial court reiterated the agreed-upon sentence, stating: "[Y]ou will be sentenced by this court to a term that is somewhere between these two numbers. Your sentence will range from a low term of five years in state prison up to the maximum of 19 years in state prison.... [¶]... [¶] I will be the sentencing judge in your case, and I will give you a sentence that I feel is appropriate, somewhere between five years and 19 years." (Italics added.) The court asked Sengamphan if it had correctly described the agreement, and Sengamphan answered "Yes." The trial court further asked if "anyone promised [her] anything else to get [her] to plead guilty," and she responded "No."
In addition to reviewing the sentencing agreement with Sengamphan, at the change of plea hearing the trial court reviewed the various consequences of her guilty plea. The trial court explained that one of the consequences was that in the event she committed a felony in the future, she would be subjected to an increased sentence based on a prior prison term enhancement. The court stated: "You will receive some term in the Department of Corrections on this case. Because this is a serious felony, you will have what's called a serious felony prior, and you will also have a prison prior. This means if you were ever sent to prison on a new felony in the future, a term of either one year or five years would be added on to that sentence just because of your conviction in this case today." (Italics added.)
Additionally, the court explained the calculation of custody credits for Sengamphan during her prison term, stating: "I'd like you to assume that whatever term I give you, whether it's five years or 19 years, or some term in between, you will serve that at the rate of 85 percent, and that your pre-sentence credits would also be limited to 15 percent. [¶] What this means is that you would serve at least 85 percent of the total term. The amount of credits you would earn for good behavior while in prison would be 15 percent." (Italics added.)
When the court asked Sengamphan if she understood these matters described by the court, she answered "Yes."
The Preliminary Hearing
After the February 13, 2008 plea agreement, Sengamphan testified on behalf of the prosecution at the codefendants' March 6, 2008 preliminary hearing. On cross-examination by the attorneys representing the codefendants, Sengamphan was questioned about her plea agreement. During this cross-examination, Sengamphan acknowledged that the plea agreement was that the court would sentence her from five to 19 years in prison, and that she understood that if she testified favorably to the prosecution the prosecutor would recommend a five-year sentence. Further, when asked if she believed from the conversations with her attorney and/or the parties that "there is a possibility" that she would not "have to go to [prison] for [five years]," she responded affirmatively.
This portion of the cross-examination was as follows: "Q. Now, you have said today that your understanding of the plea agreement is that you are going to be sentenced to between 5 to 19 years in prison, isn't that right? [¶] A. Right. [¶] Q.... Isn't it fair—have you talked to your lawyer about that? [¶] A. Yes. [¶] Q.... Have you asked him whether there is any possibility that you could get less than 5 years, under the plea agreement? [¶] A. Can you... repeat it, please. [¶] Q. Are you aware that it is possible, under the plea agreement, for you to get less than the minimum of 60 months in jail, isn't that right? [¶] A. 60 months? [¶] Q. 60 months. [¶] The Court: That is five years. [¶] The Witness. All right. Yes. [¶] Q. All right. And it's fair to say that you believe if everything goes right, if you fulfill your agreement and testify as the district attorney wants you to, that there is a possibility that you won't have to go to jail for 60 months; isn't that right? [¶] A. Right. [Deputy District Attorney]: Judge, I don't think the witness understands, Your Honor. [¶] The Court. I agree. She doesn't. I agree. You should ask those questions, again.... And let's talk 5 years, let's not talk 60 months. Begin again. [¶].... [¶] Q. From conversations with all the parties, including your lawyer, don't you believe somewhere in your mind that if everything goes right, that you may not have to do 5 years in state prison? [¶] A. Right." (Italics added.)
Dispute over Probation Option at Sentencing
The sentencing hearing was held on September 2, 2008. The probation officer's report sets forth the agreed-upon sentence range in the plea agreement, but assumes the court could consider probation. In his report, the probation officer states that he explained the general terms and conditions of probation to Sengamphan, and Sengamphan indicated that she felt she would be successful on probation if probation were granted. Sengamphan told the probation officer that she "understands that the Judge may not give her probation, but either way she plans to stay with her parents after she is released." The probation officer noted that Sengamphan was statutorily eligible for probation and listed circumstances supporting a grant and a denial of probation. The probation officer recommended that because of the serious nature of the offense and other factors, probation be denied and Sengamphan be committed to prison for 15 years.
Sengamphan submitted a handwritten letter to the trial court for its consideration at sentencing. In the letter she included a reference to her possible release from custody, stating: "If given the chance to be able to go home, I'm ready to take advantage of all my opportunities sitting in front of me."
At some point the parties apparently realized they had differing views as to whether the plea agreement permitted the court to consider granting probation. At the sentencing hearing, Attorney Leff argued the parties had not intended to preclude a defense request for probation. To support this, Leff proffered his own and cocounsel's testimony. In his offer of proof, Leff stated he and cocounsel had spoken to the deputy district attorney about probation; the deputy district attorney "would not agree to probation"but"wanted to seek prison"; the deputy district attorney agreed to recommend a five-year prison term; and Leff agreed to the 5-to-19-year sentence range but never waived the right to seek probation. (Italics added.)
Defense cocounsel was Leff's brother, who had moved to another state but was available to testify telephonically.
The offer of proof from Attorney Leff was as follows: "The essence of the conversation went something like this: Ms. Irving would recommend five years. I would not be precluded, and never, Your Honor has seen me before, I've been in your court, I'm a vociferous advocate, and I have never waived the right to request probation on my client's behalf.... [¶].... [¶]... I never waived my right to argue for probation in this matter. I spoke to [Deputy District Attorney Irving] about it. [Defense cocounsel] spoke to her about it. [Defense cocounsel] is prepared to testify on behalf of this. [¶] [Irving] would not agree to probation, of course. And I understood that. She wanted to seek prison. And I agreed to the 5 year to [19] year. However, I agreed to that on [Sengamphan's] behalf, I never waived my right to seek probation in this case. And [defense cocounsel] will be willing to testify to this point." (Italics added.)
Deputy District Attorney Irving responded that it appeared the parties "did not have a meeting of the minds" because her recollection was that "there would be a floor of 5 years state prison." Irving noted that "[n]owhere in the plea agreement was it ever written that probation would be contemplated." She contended that everything the parties agreed upon was in the agreement, and if the parties had intended to include probation as an option they would have written it in the agreement. Irving also informed the court that the videotape of the Cooperation Agreement meeting reflected that no mention was made that the defense could argue for probation.
The Trial Court's Ruling
Prior to making its ruling, the trial court reviewed the Cooperation Agreement, the guilty plea form, and the preliminary hearing transcript. (The court and parties did not have the transcript of the change of plea proceeding available to them at the time.) The court also considered the parties' offers of proof, consisting of the deputy district attorney's description of the contents of the videotape of the Cooperation Agreement and defense counsel's proffered testimony concerning the statements made during the plea negotiations.
It appears that during a recess in the sentencing hearing, the prosecutor and defense counsel reviewed the videotape of the Cooperation Agreement meeting. The prosecutor then told the court that the videotape reflected no mention of probation, and the court accepted the description as an offer of proof. However, the record does not indicate that the trial court itself reviewed the videotape or the transcription of the videotape.
The court concluded the plea agreement precluded consideration of probation. The court found that "even considering the offers of proof from Mr. Leff," there was a "meeting of the minds" that probation was not an option and the sentence would be from five to 19 years. The court stated the "notion of sentencing does not include a grant of probation" because "[w]hen one gets probation, the imposition of sentence is suspended." The court also noted the Cooperation Agreement had an integration clause, stating it was the entire agreement of the parties.
When making its ruling, the court stated, "I find and conclude that [Sengamphan] is not eligible [for probation] based on the plea agreement.... [¶] I find as a matter of fact, even considering the offers of proof from Mr. Leff, that there was a meeting of the minds when this contract was entered into. [¶] I find, further, that that meeting of the minds was that probation was not, in fact, an option, and that the sentence would be a low of 5 years to a high of 19 years."
The court further pointed out that although Sengamphan had indicated at the preliminary hearing that she believed she might not have to go to prison for five years, she also had indicated she understood she would receive a sentence from five to 19 years in prison. The court concluded that notwithstanding her hope that she might not receive a five-year sentence, the "fair interpretation of the language in the plea agreement" limited the court to a range of five to 19 years.
The trial court then sentenced Sengamphan to five years in prison, achieving this result by striking the gang enhancement and selecting the low term for attempted murder.
DISCUSSION
Sengamphan asserts the written plea agreement can reasonably be interpreted to permit consideration of probation as an implied term of the agreement, and the trial court erred in failing to hear and admit the proffered testimony of Attorney Leff and cocounsel to support this interpretation. She asserts the judgment must be reversed and the matter remanded for admission of the proffered testimony and an interpretation of the plea agreement in light of this testimony. The Attorney General asserts Sengamphan cannot raise this issue because she did not obtain a certificate of probable cause, and, alternatively, the plea agreement was not reasonably susceptible to an interpretation that included the probation option.
A. Certificate of Probable Cause
To appeal from a conviction based on a guilty plea, the defendant must obtain a certificate of probable cause from the trial court to review any issue that attacks the validity of matters resolved in the plea agreement. (Pen. Code, § 1237.5; People v. Buttram (2003) 30 Cal.4th 773, 780-781, 785-787.) For example, a defendant may not challenge the court's legal authority to select a sentence within the terms of the plea agreement without obtaining a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 73, 79 [certificate required for cruel and unusual punishment challenge to specific negotiated sentence]; People v. Shelton (2006) 37 Cal.4th 759, 763, 766-769 [certificate required for section 654 multiple punishment challenge to negotiated maximum sentence].) In contrast, no certificate is required for challenges to the trial court's discretionary sentencing choices left open by the plea agreement. (People v. Buttram, supra, 30 Cal.4th at pp. 777, 790-791 [no certificate required for challenge to court's discretionary selection of sentence within agreed-upon maximum].) Similarly, no certificate is required for an appeal based on an alleged violation of the plea agreement because this claim seeks to enforce, not attack, the plea agreement. (See People v. Johnson (2009) 47 Cal.4th 668, 679, fn. 5; People v. Rabanales (2008) 168 Cal.App.4th 494, 500-501.)
Subsequent unspecified statutory references are to the Penal Code.
Here, Sengamphan is not asserting that her five-year sentence is unlawful, which would be a challenge to the validity of an agreed-upon term requiring a certificate of probable cause. Rather, she is asserting the plea agreement can reasonably be interpreted to include the probation option, and the trial court erred in failing to hear and admit testimony proffered by the defense that would support this interpretation. This contention does not challenge the validity of the plea agreement, but concerns how to properly interpret the plea agreement. Because Sengamphan's claim does not attack the validity of the plea, no certificate of probable cause was required.
B. Interpretation of the Plea Agreement
1. Governing Law
" 'A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.' " (People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) Accordingly, a plea agreement is interpreted according to contract principles. (People v. Shelton, supra, 37 Cal.4th at p. 767.) The goal of contract interpretation is to give effect to the mutual intention of the parties as objectively expressed in the contract. (Ibid.; ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)
Where contractual language is clear and explicit, we determine intent from the written terms alone. (People v. Shelton, supra,37 Cal.4th at p. 767; Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 831.) If the contractual language is ambiguous or uncertain, extrinsic evidence is properly considered to ascertain the reasonable expectations of the parties. (ASP Properties, supra, 133 Cal.App.4th at p. 1266; Kashmiri, supra, 156 Cal.App.4th at p. 832.) An ambiguity may appear on the face of a contract, or extrinsic evidence may reveal a latent ambiguity in the contract. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) When deciding whether there is an ambiguity, the trial court should provisionally receive (without actually admitting) the extrinsic evidence concerning the parties' intentions to determine whether the language is reasonably susceptible to the interpretation urged by the party. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.) If the language is reasonably susceptible to the urged interpretation, the court should then admit the evidence and use it to determine the parties' objectively expressed mutual intentions. (Ibid.; People v. Shelton, supra, 37 Cal.4th at p. 767.) To determine the parties' intent, the court considers the language in the agreement, as well as such objective matters as the surrounding circumstances under which the parties negotiated the contract, the subject matter of the contract, and the subsequent conduct of the parties prior to the development of the controversy. (People v. Shelton, supra, at p. 767; Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1449.)
Although the parties may testify regarding their actual intent, the court applies an objective standard to interpret the contract. (See Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 351; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 528.) It is the parties' outward, disclosed manifestation of intent, rather than undisclosed subjective intent, that controls contract interpretation. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 948; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.) A written agreement may include both express and implied terms (People v. Arata (2007) 151 Cal.App.4th 778, 787), but implied terms may not be inserted unless they are necessary to effectuate the parties' mutual intentions (People v. Rabanales, supra, 168 Cal.App.4th at p. 505). "The question is what the parties'... objective expressions of intent would lead a reasonable person to believe." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; People v. Toscano (2004) 124 Cal.App.4th 340, 345.)
On appeal, we review de novo the trial court's threshold ruling on whether the contractual language is reasonably susceptible to the urged interpretation. (Winet v. Price, supra, 4 Cal.App.4th at p. 1165.) We also independently determine the meaning of the contract if no extrinsic evidence was admitted, or if the admitted extrinsic evidence did not require resolution of credibility issues. (Id. at p. 1166; Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439; ASP Properities Group, L.P. v. Fard, Inc., supra, 133 Cal.App.4th at pp. 1266-1267.)
2. Analysis
The written agreement in this case encompasses the written Cooperation Agreement, the transcribed statements at the Cooperation Agreement meeting, the guilty plea form, and the transcribed statements at the change of plea hearing. Further, the defense proffered extrinsic evidence consisting of (1) counsels' statements during plea negotiations which never explicitly excluded the probation option, and (2) Sengamphan's statements at the preliminary hearing that she thought she might not "have to go" to prison for five years. On appeal, Sengamphan challenges the trial court's failure to actually hear (and then admit) the testimony proffered by the defense concerning the statements during the plea negotiations.
When the trial court interpreted the plea agreement at the time of sentencing, it did not have the change of plea transcript, and it apparently did not actually review the videotape of the Cooperation Agreement meeting or the transcript of the videotape. Nevertheless, we may properly consider these materials for purposes of our independent review of the trial court's interpretation of the plea agreement.
It is not clear from the record whether the trial court found the language of the written plea agreement was not reasonably susceptible to an interpretation that impliedly included the probation option (and hence the extrinsic evidence was inadmissible), or whether the court did not foreclose an interpretation including this implied term but assessed that even if it heard defense counsels' proffered testimony, this would not support the parties' intent to include the probation option. In any event, independently reviewing the record, we conclude the written agreement is reasonably susceptible to an interpretation permitting the probation option so that the extrinsic evidence was admissible. However, we conclude there is no need to remand the matter as requested by Sengamphan because, even considering the plea negotiation statements described in the defense offer of proof, the record shows the parties' objectively manifested intent was to exclude the probation option.
In briefing on appeal, Sengamphan argues the trial court found the written agreement was susceptible to the defense interpretation, but presents an alternative argument recognizing that the court might have reached a contrary conclusion on this point. The Attorney General asserts the trial court found the written agreement was not susceptible to the defense interpretation.
A trial court has no authority to alter the terms of an agreed-upon sentence by selecting a more lenient disposition for the defendant at sentencing. (People v. Segura (2008) 44 Cal.4th 921, 935; People v. Ames, supra, 213 Cal.App.3d at pp. 1216-1218; People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1335, 1337-1338.) On its face, an agreement that a defendant would receive a prison sentence suggests that the defendant would not receive probation.
However, Sengamphan asserts that notwithstanding the agreed-upon sentence range, the agreement is reasonably susceptible to permitting a grant of probation given the peculiarity of sentencing law that allows suspension of an imposed sentence to permit probation. We agree. When a trial court decides to grant probation, it has two options: it may grant probation and suspend imposition of sentence, or it may impose sentence and then grant probation by suspending execution of the sentence. (§ 1203.1, subd. (a); People v. Howard (1997) 16 Cal.4th 1081, 1084, 1087; People v. Segura, supra, 44 Cal.4th at p. 932.) Thus, a plea agreement providing that the court will sentence the defendant, but not expressly stating that the defendant will serve the sentence, does not necessarily foreclose the possibility that the court could comply with the plea agreement by imposing the sentence but then suspending its execution by a grant of probation.
In the event probation is subsequently violated and revoked, the court selects the sentence at the time of revocation if sentence was not previously imposed, whereas the court merely orders execution of the sentence if the sentence was previously imposed. (People v. Howard, supra, 16 Cal.4th at pp. 1084, 1087-1088.)
Because of this characteristic of sentencing law permitting imposition of sentence even with a grant of probation, and the fact that there is no express exclusion of probation in the written plea documents, the written plea agreement can reasonably be construed as impliedly permitting the probation option. Accordingly, the testimony concerning counsels' statements during the plea negotiations was admissible to determine the parties' intent on this issue.
We note that in Gifford, the appellate court held that the trial court could not modify a plea agreement providing for a stipulated three-year sentence by instead granting the defendant probation. (People v. Gifford, supra, 53 Cal.App.4th at pp. 1335, 1337-1338.) In Gifford the parties believed during the plea negotiations that probation was statutorily prohibited, but at sentencing the defendant contended the statutory prohibition was cruel and unusual punishment. (Id. at pp. 1335-1336.) In Gifford, unlike the circumstances here, there was no extrinsic evidence proffered to show that at the time of the plea agreement the parties intended to keep the probation option open.
The trial court considered the evidence concerning the statements made during the plea negotiations as an offer of proof, but it did not actually hear and admit the proffered testimony into evidence. Nevertheless, any error in the trial court's failure to hear and admit the testimony was harmless. Even considering the statements in the defense offer of proof, the totality of the circumstances, including the trial court's statements at the change of plea hearing about the consequences of the plea and the language of the written documents, establish that the parties did not reasonably expect that probation was an option.
The trial court's statements at the change of plea hearing concerning the consequences of the plea reflect an understanding that Sengamphan would actually serve a prison sentence. The court advised Sengamphan, and Sengamphan stated she understood, that she would "receive some term in the Department of Corrections" and that she would "have a prison prior" enhancement in the event of any future felony. An enhancement for a prison prior requires actual service of the sentence in prison. (§ 667.5, subd. (e); People v. Percelle (2005) 126 Cal.App.4th 164, 177-178.) Further, addressing custody credits, the court told Sengamphan, and Sengamphan stated she understood, that she would serve whatever term the court gave her at the rate of 85 percent. Again, this contemplates actual service of a prison term. The change of plea hearing was an integral part of the plea agreement because the court's consent to the plea was necessary to make the plea operative. (§ 1192.4; In re Alvernaz (1992) 2 Cal.4th 924, 941; People v. Segura, supra, 44 Cal.4th at p. 931.) The defense made no objection to the court's description of the consequences of the agreement, which objectively reflects that the defense agreed with the court's interpretation of the agreement as contemplating actual service of a prison term.
The statements made during the plea negotiations proffered by the defense do not overcome this objective expression of intent to require actual service of the sentence. In his offer of proof, defense counsel stated that the deputy district attorney would not agree to probation but that defense counsel never waived the right to seek probation. From this, the defense apparently reasons that it was understood by the parties that defense counsel could argue for probation notwithstanding the district attorney's opposition to this sentencing choice. When the circumstances are viewed in their entirety, this purported understanding is inconsistent with the parties' objective manifestations of intent, including (1) the inclusion of a prison term range in the written plea documents with no mention of probation, (2) the written provisions that there were no promises outside the written documents, and (3) the trial court's ensuing statements at the change of plea hearing describing actual service of a prison term with no objection by the defense.
Given the objective manifestations of intent that a prison term be served, the fact that the defense did not explicitly waive the right to seek probation does not show a reasonable expectation that the court could consider probation. To the contrary, to override the objective manifestations of intent of actual service of the sentence present in this case, the defense would have been required to explicitly include a reservation of the probation option to achieve this result.
Sengamphan's manifestations of her belief that she might not have to go to prison for five years (set forth in her preliminary hearing testimony, as well as her later statements to the probation officer and in her letter to the sentencing court) do not establish an objective manifestation of intent that probation was an option. These statements, made several weeks or months after the plea agreement, reflect her subjective understanding of the agreement. Absent a showing that her subjective intent was disclosed to the parties during formulation of the plea agreement, or that it was consistent with the other objective indicia of intent, it does not establish the parties' mutual intent.
Even considering the testimony concerning statements made during the plea negotiations proffered by the defense, the objective manifestations of intent show the parties did not intend that probation be preserved as an option at sentencing. Accordingly, we reject Sengamphan's assertion that the judgment must be reversed and the matter remanded for admission of this testimony.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. McDONALD, J.