Opinion
D071651
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO CARDENAS SIERRA, Defendant and Appellant.
Ashley N. Johndro, 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, Arlene A. Sevidal and Stacy Tyler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS287293) APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Judgment conditionally reversed, with directions. Ashley N. Johndro, 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, Arlene A. Sevidal and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Alfredo Sierra was caught smuggling drugs into the country. As part of a plea bargain, the parties agreed he would be sentenced to an eight-year "split" sentence, with the "court to determine [the] split." However, the probation department later determined a split sentence was not practicable because Sierra—a Mexican citizen residing in the U.S.—had an immigration hold and would likely be deported following his release from custody. Therefore, instead of sentencing him to an eight-year split sentence, the court sentenced Sierra to five years in local custody.
"A split sentence is a hybrid sentence in which a trial court suspends execution of a portion of the term and releases the defendant into the community under the mandatory supervision of the county probation department." (People v. Camp (2015) 233 Cal.App.4th 461, 464, fn. 1.)
On appeal, Sierra contends the court erred by deviating from the sentence specified in the plea bargain without first giving him the opportunity to withdraw his plea. Alternatively, he contends his trial counsel was ineffective for renegotiating the plea bargain without Sierra's participation or consent. We conclude the five-year sentence constituted a significant deviation from the plea bargain such that Sierra should have been given the opportunity to withdraw his plea. Therefore, we conditionally reverse the judgment with directions to allow Sierra an opportunity to withdraw his plea.
Consequently, we do not reach Sierra's claim of ineffective representation.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Offense
While entering the U.S. from Mexico, 71-year-old Sierra was referred for secondary inspection. Agents found 13.16 kilograms (29.01 pounds) of cocaine—having a street value between $290,000 and $348,0000—hidden in the spare tire of his vehicle. Sierra was arrested and admonished of his rights. He admitted he was being paid $1,500 to transport the cocaine.
Plea Bargain and Guilty Plea
The prosecution charged Sierra with importing a controlled substance into California (Health & Saf. Code, § 11352, subd. (a); count 1) and possessing a controlled substance for sale (§ 11351; count 2). As to each count, the prosecution alleged three weight-based sentence enhancements—that the controlled substance exceeded one kilogram (three-year enhancement), four kilograms (five-year enhancement), and 10 kilograms (10-year enhancement). (§ 11370.4, subd. (a)(1)-(3).) With the highest weight-based enhancement, Sierra faced a maximum sentence of 15 years. (§§ 11352, subd. (a) [five-year upper term], 11370.4, subd. (3) [10-year enhancement].)
Undesignated statutory references are to the Health and Safety Code.
On August 10, 2016, Sierra pleaded guilty to count 2 (possession) and admitted the four-kilogram enhancement allegation, in exchange for dismissal of the balance of the charges. His guilty-plea form states, "Stipulated eight years local prison, court to determine split." At the plea hearing, during which a certified translator assisted Sierra, the court explained the import of the split: "You are stipulating to eight years local prison, and we'll look at [a] split sentence, which means you'll do part in custody and part out of custody."
The court accepted Sierra's guilty plea, finding it was voluntarily and intelligently made. However, neither the court nor the guilty-plea form admonished Sierra that the court retained the discretion to withdraw its approval of the plea deal and sentence him to a more severe punishment, in which case Sierra would have the right to withdraw his guilty plea. (Pen. Code, § 1192.5.) The court set a sentencing hearing for September 30.
Penal Code section 1192.5 states in part: "Where 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 in the plea. [¶] 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 that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."
Sentencing Hearings
A certified interpreter assisted Sierra at all sentencing hearings.
At the September 30 sentencing hearing, Sierra requested a continuance. His probation report stated a split sentence was not appropriate because he "has an INS hold and will most likely be deported to Mexico upon his release from custody." The report stated he was otherwise eligible for a split sentence, and the probation department recommended "an [eight] year local prison commitment, to be released after serving [four] years, with the concluding [four] years being supervised in the community." The court continued the sentencing hearing to November 29.
At the continued sentencing hearing, the court stated that its notes from the previous hearing indicated the People "were willing to agree to a stipulated five years without a split sentence in order to acknowledge the fact that [Sierra] won't get a split because it was originally a stipulated eight-year prison term." The prosecutor, who was not the one who appeared at the September 30 sentencing hearing, said the court's notes did not reflect his understanding, which was that the People had initially offered "eight years with a split or six years without a split." (Italics added.) He acknowledged, however, that his notes showed that something had been discussed at the previous hearing about a five-year deal, and he was willing to "go by that if that is what the Court has." The court said, "That is what I have written down," and defense counsel concurred, "That is my recollection as well."
Before pronouncing sentence, the court realized the shortest sentence it could impose under the pleaded-to charges was seven years (two years for the low term on count 2, plus five years on the four-kilogram enhancement). The prosecutor suggested the court could reach five years by instead using the one-kilogram enhancement (three years). The court asked if the prosecutor was willing to so amend the charging document. He responded, "Yes," and defense counsel said, "Thank you." The court's minutes reflect the enhancement allegation was, thus, "amended by interlineation."
The court then sentenced Sierra to five years based on the amended enhancement. The record shows Sierra was never consulted about the amended pleading or change in sentence during this hearing, nor advised of his rights under Penal Code section 1192.5.
Sierra's Letter to the Court
About six weeks after he was sentenced, Sierra sent a letter to the court accepting "full responsibility" for his actions, but asking the court to resentence him so he could "have a fair and understandable plea bargain." He claimed he "was wrongfully guided [and] informed by [his] attorney . . . and interpreter about the plea bargain [he] signed." Specifically, Sierra said he "was told" the prosecutor had offered him "[two] years with half and [three] years['] probation." He added, "That was the only reason I agreed with that deal and signed." He claimed he "was pressured to sign" and did not fully understand the deal due to his "advanced age and . . . language barrier."
The court denied Sierra's request, adding, "Defendant may want to consider an appeal." Sierra filed a notice of appeal the following week.
DISCUSSION
Sierra contends the trial court erred by sentencing him to five years in local custody instead of to an eight-year split sentence without first giving him the opportunity to withdraw his guilty plea. We agree.
I. Relevant Legal Principles
"When a guilty plea is entered in exchange for specified benefits such as . . . an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." (People v. Walker (1991) 54 Cal.3d 1013, 1023 (Walker), overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 184; see People v. Silva (2016) 247 Cal.App.4th 578, 587 (Silva); Pen. Code, § 1192.5 ["the defendant . . . cannot be sentenced on the plea to a punishment more severe than that specified in the plea . . . ."].) "This is a rule of constitutional dimension, implicating due process concerns." (Silva, at p. 587.)
"This does not mean that any deviation from the terms of the agreement is constitutionally impermissible." (Walker, supra, 54 Cal.3d at p. 1024.) Rather, "the variance must be 'significant' in the context of the plea bargain as a whole to violate the defendant's rights. A punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations." (Ibid.)
Moreover, "there is an out for the trial court" if it wishes to impose a sentence more severe than that specified in the plea agreement: the court may withdraw its initial approval of the plea bargain. (Silva, supra, 247 Cal.App.4th at p. 587.) However, if the court intends to exercise this option, "it must inform the defendant that he or she has the right to withdraw the plea and allow the defendant to do so; it cannot merely alter the terms of the agreement by imposing punishment significantly greater than that originally bargained for." (Ibid.; People v. Akins (2005) 128 Cal.App.4th 1376, 1385-1386 (Akins) ["As a general rule, if the result will be an increased punishment, the court must allow the defendant to withdraw the plea."]; Pen. Code, § 1192.5.)
"The required explanation and defendant's right to have his plea withdrawn [under Penal Code section 1192.5] apply both at the time of entering the plea and at sentencing." (People v. Jackson (1980) 103 Cal.App.3d 635, 638.)
II. Analysis
The threshold issue is whether a five-year custodial sentence is significantly more severe than the agreed-upon eight-year split sentence. We conclude it is.
Although the trial court never stated how it would have implemented the eight-year split sentence—thus depriving us of a definitive benchmark against which to measure the five-year custodial sentence—several factors indicate the five-year custodial sentence is a more severe punishment.
First, a five-year sentence is more severe in the abstract. Using whole-year increments, there are seven possible permutations for implementing an eight-year split sentence. A five-year custodial sentence is more severe than four of them, and less severe than only two.
The possible whole-year implementations of an eight-year split are as follows (shown in years in custody/years under mandatory supervision): seven/one, six/two, five/three, four/four, three/five, two/six, one/seven.
Second, and more significantly, although the trial court did not establish a benchmark against which to evaluate the eight-year split, the probation department did—four years in custody, followed by four years under community supervision. The five-year custodial sentence the trial court imposed is more severe by one additional year. Although the trial court was not required to follow the probation department's recommendation, the recommendation is instructive.
Finally, although we give Sierra's letter to the court little weight because it contradicts representations he made when entering his guilty plea, the letter states his attorney and interpreter informed him that the bargained-for sentence was two and one-half years in custody.
For example, Sierra stated (1) the terms of the plea bargain had been translated into Spanish for him, (2) he understood all the terms, and (3) he had enough time to discuss the terms with his attorney. --------
On balance, we conclude on the record before us that the five-year custodial sentence was more severe than the agreed-upon eight-year split sentence. Consequently, the trial court should have advised Sierra of his right to withdraw his plea. The court erred by not doing so.
"When an error of this type is established on appeal, relief may take any of three forms: a remand to provide the defendant the neglected opportunity to withdraw the plea; 'specific performance' of the agreement as made [citation]; or 'substantial specific performance . . . .' " (People v. Kim (2011) 193 Cal.App.4th 1355, 1362.) The specific performance remedies are not appropriate here because the trial court and parties understood a split sentence was not practicable. Thus, the appropriate remedy is to remand with directions to advise Sierra of his rights under Penal Code section 1192.5 and to permit him to withdraw his guilty plea and enter a new plea if he so chooses.
We are unpersuaded by the Attorney General's citation to Akins, supra, 128 Cal.App.4th at page 1386 to support the proposition that, to be given the opportunity to withdraw his plea, Sierra must show "he would not have agreed to the terms [of his plea bargain] had he been aware of the additional punishment." Akins involved an appeal by the People after the trial court reduced by $369 an approximately $10,000 restitution award (id. at p. 1381), which the appellate court "serious[ly] question[ed] . . . was significant" or "prejudicial" (id. at p. 1386). Moreover, the Supreme Court held that "[a] violation of a plea bargain is not subject to harmless error analysis." (Walker, supra, 54 Cal.3d at p. 1026.)
DISPOSITION
The judgment is conditionally reversed and the cause is remanded to the trial court to allow Sierra an opportunity to withdraw his plea. If he does not do so within 60 days of the issuance of a remittitur in this case, the trial court is directed to reinstate the judgment.
HALLER, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.