Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCS203562, SCS207232, Esteban Hernandez, Judge.
McDONALD, J.
Defendant Dyrone Leonard Thompson was charged, in two separate complaints, with numerous offenses. He pleaded guilty to some of the offenses in exchange for dismissal of the other offenses, and the cases were consolidated for sentencing. The trial court sentenced Thompson to an aggregate term of 12 years 8 months, and on appeal Thompson challenges certain aspects of that sentence.
Because Thompson's challenges the sentencing after guilty pleas, we do not detail the facts of the underlying offenses.
I
PROCEDURAL BACKGROUND
A. The Complaints and Guilty Pleas
Case No. SCS203562
The complaint in case No. SCS203562 charged Thompson with two counts along with various enhancing allegations, including personal use of a deadly weapon (Pen. Code, § 1192.7, subd. (c)(23)) and prior strike allegations (§§ 667, subds. (b)-(i), 1170.12, 668.). On November 14, 2006, Thompson pleaded guilty to count 2, which alleged he violated section 12020, subdivision (a)(1), and, pursuant to the plea bargain, the remaining count and allegations were dismissed.
All further statutory references are to the Penal Code unless otherwise specified.
Case No. SCS207232
The complaint in case No. SCS207232 charged Thompson with 22 counts. The complaint specially alleged (as to the bulk of those counts) Thompson committed the offenses while released on bail (§ 12022.1, subd. (b)), and also alleged Thompson had suffered three prior strike convictions within the meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668. On September 14, 2007, Thompson pleaded guilty to 11 counts (counts 1, 13-15, 17, 19, 21, 23, 25-27), and admitted the on-bail allegations as to those counts and one prior strike allegation. Pursuant to a plea bargain, the remaining counts and allegations were dismissed.
B. The Sentencing
On March 24, 2008, the trial court sentenced Thompson in both cases. In case No. SCS207232, the court selected count 1 as the principal term and sentenced Thompson on that count to the upper term of three years, doubled under the three strikes law. The court also imposed consecutive eight-month sentences for each of counts 13, 15 and 17 (also doubled under the three strikes law), and imposed a consecutive two-year term for the on-bail allegation. The court imposed concurrent sentences for counts 14, 21, 23, and 25 through 27, but stayed execution of those sentences under section 654. The court also imposed a concurrent 16-month sentence on count 19. In case No. SCS203562, the court sentenced Thompson to a consecutive eight-month prison term.
II
ANALYSIS
A The May 15, 2008, Modification of the Sentence Was Error
On May 15, 2008, the court issued an order modifying the sentence on Count 25, nunc pro tunc, which increased the sentence (from the previously imposed 16-month concurrent term to a four-year concurrent term) and vacated the section 654 stay. Thompson was not present at the time the sentence was modified. We agree with Thompson's argument, which the People concede is correct, that the court did not have authority to increase the sentence in Thompson's absence. Accordingly, we reverse the May 15, 2008, order and restore the sentence to that which the court imposed on March 24, 2008.
B. The Presentence Credits
In Thompson's opening brief, he asserts the court erred when it did not award him two days of conduct credits (§ 4019) in case No. SCS203562. However, as the People note, the court awarded those credits to Thompson after his opening brief was filed, rendering his argument moot. We agree with the People that the proper remedy is to order the abstract of judgment amended to reflect the award of those credits. (People v Kimball (2008) 168 Cal.App.4th 904, 909.)
C. The Plea Bargain
Background
On November 14, 2006, the court held a hearing in case No. SCS203562 on Thompson's change of plea. The signed plea agreement form stated Thompson agreed to plead guilty to count 2, and he had not been induced to enter the plea based on any promise or representation except for the agreement of the district attorney to "dismiss [the] balance [of the charges]" and "NOLT." The plea agreement form also stated that Thompson understood "I may receive this maximum punishment as a result of my plea: 4 years in State Prison...." At the hearing, when discussing the written change of plea agreement, the following colloquy occurred:
On appeal, the People assert (and Thompson does not dispute) "NOLT" is the acronym for "not to oppose local time."
"The Court:... Do you understand that the maximum sentence in this case is four years in state prison...? [¶]... [¶]
"[Thompson]: Yes.
"The Court: Do you understand also that it appears the district attorney has agreed that if... you plead guilty to this charge, that the other counts, count 1, is going to be dismissed and that if you do any time in custody it's going to be local time in custody, that you're not going to be sentenced to prison[?] [¶]... [¶]
"[Thompson]: Yes.
"The Court: Counsel, were there any other agreements?
"[Defense Counsel]: No your Honor.
"The Court: All right. I do note something else written down here. Where at one point in time it appeared that there was going to be a required 365 days, but now it looks like that is not the case; is that correct?
"[Defense Counsel]: That is correct, your Honor. The original offer was a stipulated 365 and that was modified this morning.
"The Court: That's been modified to possibly it looks like--I can't read this.
"[District Attorney]: To a N.O.L.T.
"The Court: Just the--no opposition to argue [whatever] sentence, correct?
"[Defense Counsel]: Correct, your Honor."
The court continued the hearing for sentencing. However, while Thompson was on bail and prior to the sentencing in case No. SCS203562, he committed numerous other crimes that gave rise to the charges in case No. SCS207232. On September 14, 2007, Thompson appeared and agreed to enter the guilty plea to several of the counts alleged in case No. SCS207232, and the court scheduled a sentencing hearing for both cases.
On March 24, 2008, the court held the sentencing hearing for case Nos. SCS207232 and SCS203562. In the sentencing memorandum submitted by defense counsel, Thompson affirmatively argued the appropriate sentence for the conviction in case No. SCS203562 was an eight-month term to be served consecutive to the term imposed in case No. SCS207232. This argument accorded with the sentencing memorandums submitted by the prosecution and the probation department. At the sentencing hearing, defense counsel reiterated her belief that the appropriate sentence for the conviction in case No. SCS203562 was "one third the mid[-]term, eight months" and that "it has to run consecutive" to the term imposed in case No. SCS207232. The court ultimately imposed a consecutive eight-month prison term for that offense.
Analysis
Thompson argues the sentence must be reversed and the matter remanded for a new hearing at which he may withdraw his guilty plea because the court sentenced him to state prison, which he argues was a sentence significantly harsher than was agreed to by the parties, without first advising him of his rights under section 1192.5 to withdraw his plea. However, the plea agreement specifically and clearly stated Thompson understood that he could "receive... punishment as a result of my plea [of four] years in State Prison...", and the only agreement by the district attorney was not to oppose a sentence imposing time in county jail. The court's sentence did not violate the plea bargain by imposing a term in excess of the four years in state prison contemplated as the maximum term. We also conclude the district attorney did not violate the only obligation of not opposing a request for local time because Thompson never suggested any sentence in case no. SCS203562 other than an eight-month term, consecutive to the term imposed in case No. SCS207232, to be served in state prison.
Thompson appears to assert the court's oral synopsis of the plea agreement, by stating that "the district attorney has agreed that if... you do any time in custody it's going to be local time in custody, that you're not going to be sentenced to prison," constituted an oral modification that superseded the written plea agreement. However, the parties immediately clarified that, although "[t]he original offer was a stipulated 365," it "was modified this morning... [¶]... [¶]... [t]o a N.O.L.T." The court clarified that the understanding was "[j]ust... no opposition to argue [whatever] sentence, correct?" and defense counsel stated, "Correct, your Honor." Moreover, even to the extent the oral colloquy created any ambiguity, the parties (with awareness of its terms) agreed below to an eight-month term in state prison in the apparent understanding that such term did not violate the agreed terms of the plea agreement. A negotiated plea agreement is a form of contract and is therefore "interpreted according to general contract principles." (People v. Segura (2008) 44 Cal.4th 921, 930), and "[i]t is a 'cardinal rule of construction that when a contract is ambiguous or uncertain the practical construction placed upon it by the parties before any controversy arises as to its meaning affords one of the most reliable means of determining the intent of the parties.' [Quoting Bohman v. Berg (1960) 54 Cal.2d 787, 795.]" (Sterling v. Taylor (2007) 40 Cal.4th 757, 772-773.)
We construe the agreement as did the parties prior to any controversy arising as to its meaning--that it only bound the district attorney not to oppose local time and did not bar the court from imposing a term in state prison. We conclude the sentence did not violate the terms of the plea agreement.
D. Selection of the Upper Term
Thompson asserts the court violated his Sixth Amendment rights by imposing the upper term on count 1 in case No. SCS207232. The court imposed the upper term of three years on that count based, in part, on its finding that Thompson's prior performance on probation was unsatisfactory.
We conclude People v. Towne (2008) 44 Cal.4th 63 is controlling and mandates rejection of Thompson claim. Towne made several holdings that are relevant here. First, "[w]hen a defendant's prior unsatisfactory performance on probation or parole is established by his or her record of prior convictions,... the right to a jury trial does not apply." (People v. Towne, supra, 44 Cal.4th at p. 82.) Second, "the federal constitutional right to a jury trial and proof beyond a reasonable doubt... does not extend to the circumstance that a defendant was on probation or parole at the time of the offense...." (Id. at p. 79.) Third, as established in People v. Black (2007) 41 Cal.4th 799, 818-820, "the right to a jury trial does not apply to the determination of the aggravating circumstance that '[ t]he defendant's prior convictions... are numerous or of increasing seriousness.' " (Towne, at p. 75). Further, also relying on Black, Towne explained that if a single aggravating factor has been established in a manner consistent with the Sixth Amendment "by the jury's verdict, the defendant's admissions, or the fact of a prior conviction[,] the imposition by the trial court of the upper term does not violate the defendant's Sixth Amendment right to a jury trial, regardless of whether the trial court considered other aggravating circumstances in deciding to impose the upper term." (Towne, at p. 75.)
Thompson concedes on appeal that we are bound to follow our Supreme Court's rulings, including Towne, and that his current argument on appeal is raised primarily for state exhaustion purposes.
Here, the trial court relied, in part, on Thompson's unsatisfactory prior performance on probation or parole to select the upper term. This determination was based on the fact that Thompson had several prior probations or paroles revoked based on offenses committed while on probation or parole. Because Towne establishes that a court may sentence a defendant based on unsatisfactory performance on probation or parole if the unsatisfactory performance is established by the defendant's convictions, the trial court did not violate Thompson's right to a jury trial by relying on that factor to impose upper term sentences. (People v. Towne, supra, 44 Cal.4th at pp. 75-76.)
DISPOSITION
The May 15, 2008, order is reversed and the sentence imposed on March 24, 2008, as to count 25 is reinstated. The court shall amend the abstract of judgment to reflect the award of two days of section 4019 credits. In all other respects, the judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.