Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge, and petition for writ of habeas corpus, Super. Ct. No. SCD176305
McINTYRE, J.
James Darnell Shack appeals a judgment entered on his plea of guilt to armed robbery and also petitions for habeas corpus relief. He contends that (1) the trial court (a) abused its discretion in refusing to strike his strike prior; (b) erred in imposing a sentence in excess of 20 years, which was the maximum term stated on his plea form, for the offense; and (c) improperly relied on his prior convictions to impose an upper term sentence and a five-year enhancement; and that he suffered ineffective assistance of counsel because his attorney allowed him to plead guilty at a time when he was incompetent and failed to disclose that the actual maximum sentence that could be imposed was 25 years. We reverse the judgment based on the imposition of a term in excess of 20 years and conclude that Shack is entitled to withdraw his plea on remand; based on that reversal, we need not reach his remaining contentions and we dismiss his petition as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2003, Shack committed an armed robbery of a jewelry store in which he stole $71,478 worth of jewelry. In January 2004, he was charged with armed robbery arising out of the incident as well as an unrelated murder that occurred in July 2003. Trial on the charges was suspended after a series of proceedings in which Shack was found incompetent to stand trial; however, in May 2006, the court found Shack to be mentally competent, criminal proceedings were reinstated.
In November 2006, trial commenced on the murder and robbery charges; a number of days later, Shack pleaded guilty to the robbery charge and admitted the firearm allegation. The plea form he signed indicated that the plea was a "no deals" plea and specified that the maximum punishment that could be imposed as a result of the plea was 20 years in prison. Without any objection from the prosecutor, the court accepted the plea after advising Shack, twice, of the 20-year maximum. Thereafter, trial continued on the murder charge, although the jury was ultimately unable to reach a verdict and the court declared a mistrial.
Prior to the sentencing on the robbery count, the probation officer prepared a report recommending that the court sentence Shack to prison for 25 years, consisting of the upper term of five years, doubled based on the strike prior, plus ten years for the firearm enhancement and five years for the serious felony prior; the report referred to the "no deals" plea, but did not make any reference to the maximum term specified in it. Shack filed a statement in mitigation and motion to dismiss his prior strike; as with the probation report, the statement was silent about the plea's stated maximum term.
At the January 2007 sentencing hearing, the court noted that the court file was missing, although the probation officer had provided it with a copy of the probation report. The court denied the motion to strike and sentenced Shack to 25 years to life in accordance with the probation officer's recommendation.
The proceedings again suspended in May 2007, after the court found that Shack was no longer competent to understand the proceedings and committed him to the Patton State Hospital. Appellate Defenders, Inc. thereafter filed a motion to allow a late notice of appeal as to the robbery conviction; this court granted the unopposed motion and this appeal ensued, although we denied Shack's subsequent request for permission to file a late request for a certificate of probable cause.
DISCUSSION
1. General Principles
A defendant who pleads guilty to a criminal offense waives various constitutional rights, including the right to a jury trial, the right against self-incrimination and the right to confront the witnesses against him. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Before the trial court accepts a plea of guilt, it must advise the defendant of the rights being waived thereby, as well as the direct consequences of the plea, and obtain his knowing and intelligent waiver of those rights. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244; People v. Walker (1991) 54 Cal.3d 1013, 1022.)
The prosecutor and the court must accept the plea or else the plea is deemed withdrawn. (Pen. Code, § 1192.5; all further statutory references are to the Penal Code unless otherwise noted.) The court may, however, withdraw its approval of the plea at the time of sentencing. (§ 1192.5; People v. Jackson (1980) 103 Cal.App.3d 635, 638.) If the court does so, it must reject the plea and inform the defendant that he has the right to withdraw his plea; it cannot merely alter the terms of the plea by imposing punishment significantly greater than that contemplated by the plea. (§ 1192.5; People v. Walker, supra, 54 Cal.3d at p. 1026; People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1337.)
2. Failure to Obtain a Certificate of Probable Cause
A defendant is generally precluded from appealing a judgment of conviction arising out of his guilty plea unless he has applied to the trial court for and received a certificate of probable cause permitting such an appeal. (§ 1237.5.) Although the certificate requirement is strictly applied (People v. Mendez (1999) 19 Cal.4th 1084, 1097), a defendant is permitted to appeal following a guilty plea without the need for a certificate of probable cause to raise issues relating to (1) the validity of a search and seizure and (2) "proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Shelton (2006) 37 Cal.4th 759, 766, quoting People v. Buttram (2003) 30 Cal.4th 773, 780; see also Cal. Rules of Court, rule 8.304(b)(4)(B) [requiring a certificate of probable cause unless the notice of appeal is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity"].)
The Attorney General argues that Shack cannot challenge the trial court's failure to properly advise him of the consequences of his plea (specifically, its misadvisement that the maximum imposable sentence was 20 years rather than 25) because he failed to obtain a certificate of probable cause. This argument is well-taken. (See People v. Panizzon (1996) 13 Cal.4th 68, 76 [recognizing that a certificate of probable cause is required where a defendant claims that his plea was induced by fundamental misrepresentations or that he was given inadequate warnings about the effect of the plea on his right to appeal].)
However, as the Attorney General concedes, to the extent that Shack also argues the sentencing court acted improperly in imposing a 25-year term (see generally People v. Avila (1994) 24 Cal.App.4th 1455, 1458-1461), his argument does not challenge the validity of the guilty plea, but instead the court's implementation of the plea. (People v. Lloyd (1998) 17 Cal.4th 658, 665 [concluding that an appeal of a sentence challenges the validity of the plea if the sentence was part of the plea and that otherwise a certificate of probable cause is not required]; People v. Brown (2007) 147 Cal.App.4th 1213, 1220.) Accordingly, we must proceed to address this alternative argument. (Ibid.; § 1237.5.)
3. Imposition of a 25-Year Term as Violative of the Plea
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles," the goal of which is to give effect to the mutual intention of the parties thereto. (People v. Shelton, supra, 37 Cal.4th at p. 767.) Contractual language that is clear and explicit governs. (Ibid.) Here, the plea form was unequivocal (albeit erroneous under the law) that the maximum sentence that could be imposed on Shack was 20 years, a matter that the trial court twice reiterated in accepting his plea. Further, to the extent that the "no deals" language of the plea created any ambiguity in this regard, that ambiguity must be construed in Shack's favor. (People v. Toscano (2004) 124 Cal.App.4th 340, 345; accord, Civ. Code § 1649.)
The Attorney General contends, however, that the prosecutor never entered into any agreement with Shack regarding the plea and thus the foregoing principles do not apply. Although the prosecutor did not sign Shack's plea form, his acceptance of the plea was a prerequisite to its validity under section 1192.5; absent such acceptance, the plea would have been "deemed withdrawn." (Ibid.) Here, the court accepted the plea in open court, in the presence of the prosecutor, who thus at least tacitly accepted the plea as well. As a result of the acceptance of his plea (and in the absence of any subsequent withdrawal of the court's approval thereof), Shack was entitled to be sentenced in accordance with its terms. (§ 1192.5 "[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 and the court may not proceed as to the plea other than as specified [therein].") The court's imposition of a 25-year term violated those terms.
Where the state breaches the plea bargain, the remedy is either to require specific performance of the plea agreement or to permit defendant to withdraw the plea. (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.) The appropriate remedy will vary on the circumstances of the case and turn on such factors as which party breached the agreement, whether the breach was intentional or inadvertent, whether circumstances changed between the entry of the plea and the sentencing and whether additional information would constrain the court to a disposition it considers inappropriate. (Ibid.)
In determining what relief is appropriate, the goal is to "redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge." (People v. Olea (1997) 59 Cal.App.4th 1289, 1298.) Withdrawal of the plea is more appropriate where specifically enforcing the bargain would curtail the trial court's sentencing discretion, whereas specific performance is the appropriate remedy if it will implement the reasonable expectations of the parties without binding the trial judge to a disposition he or she finds unsuitable under the circumstances. (People v. Mancheno, supra, 32 Cal.3d at p. 861.)
Shack argues that the appropriate remedy here is to allow him to withdraw his plea. Because the remedy of specific enforcement is generally limited to situations in which "very special circumstances" and considerations of fairness justify its application (People v. Calloway (1981) 29 Cal.3d 666, 672-673) and in light of the fact that specific enforcement of the plea in this case would curtail the court's exercise of its sentencing discretion, we agree.
DISPOSITION
The judgment is reversed and the matter is remanded with directions to the trial court to allow Shack to withdraw his plea and for further proceedings consistent herewith. The petition is dismissed as moot.
WE CONCUR: McCONNELL, P.J., NARES, J.