Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM3417. James LaPorte and Lynn C. Atkinson, Judges.
Allen E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Dawson, J. and Hill, J.
Defendant Frank Manual Valencia, Jr., appeals his conviction and sentence. He contends he should be allowed to withdraw his guilty plea because the trial court sentenced him to a term longer than authorized by his plea agreement. The Attorney General concedes that, under Penal Code section 1192.5 and applicable case law, defendant should be allowed to withdraw his plea. We agree.
All further statutory references are to the Penal Code unless indicated otherwise.
We will reverse the judgment and remand with directions to the superior court to either sentence defendant in accordance with the original plea agreement or allow him to withdraw his plea.
FACTS AND PROCEEDINGS
On October 5, 2006, in Lemoore, California, defendant unlawfully took and drove a Dodge Caravan without the owner’s permission.
Defendant was charged in an information filed in Kings Superior Court with one felony count of stealing a vehicle (Veh. Code, § 10851, subd. (a)) and four prison priors (§ 667.5, subd. (b)) based on convictions in 1990, 1993, 1997 and 2003.
In late April 2008, a pretrial conference was held. Counsel for defendant indicated that defendant would be pleading guilty to count 1, the prison priors would be dismissed, and the stipulated sentence would be 16 months. The trial court orally reviewed the charges, identified the maximum sentence that defendant could receive, advised defendant of the rights that he was relinquishing by pleading guilty, and took defendant’s plea. Sentencing was set for May 30, 2008, so that the probation department would have time to calculate defendant’s credits for good time and work.
The trial court advised defendant that he needed to be back in court on May 30th and needed “to report to the Probation Department for purposes of helping them fill out the 1203(c) report.” After counsel indicated there was nothing further, the following exchange occurred:
“The Court: Oh, and one other thing, the plea agreement in this case is conditioned upon your returning to court. It’s all off if you don’t show back to court.
“[Defense Counsel]: He needs to go to Probation now.
“The Court: He certainly does.
“The Clerk: The prison priors? Those are stricken?
“The Court: They will be stricken only if he shows back at court.
“The Clerk: You mean at the time of sentencing?
“[Defense Counsel]: Correct.
“The Court: If he doesn’t.
“The Clerk: And we’ll vacate trial dates?
“The Court: We’ll vacate trial dates. Okay.”
Defendant failed to appear in court on May 30, 2008. The trial court issued a bench warrant and set bail at $25,000. In June 2008, defendant was arrested on new charges and, as a result, had three cases pending. Defendant appeared in court five times between June 19 and July 15, 2008, inclusive, and his matters were continued. On July 16, 2008, defendant appeared in court for sentencing on all three of his pending cases. The trial court sentenced defendant as follows:
“In 07CM3417 for the violation of Vehicle Code 10851(a) as set forth in Count 1 of the Information, the Court imposes the upper term of three years in state prison, probation denied.”
In the other two cases, the trial court imposed two 90-day sentences to run concurrent with defendant’s prison term. The court also imposed certain fees and fines and ordered defendant to register as a narcotics offender. (CT 79; RT 58:20-23)!
The minutes from the July 16, 2008, hearing included hand-written sentences at the bottom of the second page, including the following: “COURT ORDERS THAT ALLEGATION OF 667.5(b) PC BE STRIKEN [sic] PURSUANT TO PLEA AGREEMENT.” The reporter’s transcript of the July 16, 2008, hearing contains no mention of the allegations regarding the four prison priors.
The trial court met in chambers with counsel prior to the hearing on the record. From the appellate record, it is not possible to determine whether the allegation of prison priors was addressed in that meeting.
The parties agree that during the plea proceeding or sentencing defendant was not informed that he could withdraw his guilty plea pursuant to section 1192.5 if he was sentenced to a term greater than the bargained-for 16-month term.
In August 2008, defendant filed a notice of appeal and requested a certificate of probable cause. The trial court denied the application for certificate of probable cause.
DISCUSSION
Section 1192.5 authorizes plea agreements that specify the punishment to the same extent as it may be fixed by the court on a plea of guilty. If the plea agreement is accepted in open court by the prosecuting attorney and approved by the court, the defendant “cannot be sentenced on the plea to a punishment more severe than that specified in the plea.…” (§ 1192.5.) Furthermore, if the court subsequently retracts its approval of the plea agreement, the defendant has the right to withdraw the plea. (Ibid.; People v. Masloski (2001) 25 Cal.4th 1212, 1217.)
The requirements of section 1192.5 apply where a trial court retracts its approval of a plea agreement because the defendant failed to appear for sentencing. (People v. Cruz (1988) 44 Cal.3d 1247.) A defendant fully apprised of the protections provided by section 1192.5 may expressly waive those protections, “such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term.” (Cruz, at p. 1254, fn. 5.) The express waiver, however, must be (1) knowing and intelligent and (2) obtained at the trial court’s initial acceptance of the plea agreement. (Ibid.)
A defendant can expressly agree to a greater sentence for his failure to appear at a sentencing hearing so long as the defendant’s waiver is a part of the plea bargain itself and not a court imposed condition. (People v. Casillas (1997) 60 Cal.App.4th 445, 451.) In contrast, where the sanction for nonappearance is an additional condition imposed by the court and not part of the plea bargain, a defendant is entitled to withdraw the plea if the court refuses to honor the plea bargain after the defendant fails to appear at a sentencing hearing. (Ibid.)
In this case, defendant was not informed of his right to withdraw his guilty plea in the event the court refused to sentence him to the bargained-for 16 months. Also, the record indicates the sanction for nonappearance was imposed by the court and was not part of the plea agreement. Consequently, defendant is entitled to have the matter remanded to the trial court so that (1) he is sentenced in accordance with his plea bargain or (2) if the court chooses not to approve that sentence, he is allowed to withdraw his plea.
With respect to the parties’ apparent dispute regarding the status of the allegations regarding the four prison priors, that dispute (if it becomes relevant) should be resolved by the trial court because it is in the best position to determine the intent and effect of its own proceedings and orders.
Lastly, as correctly recognized in the Attorney General’s brief, a certificate of probable cause is not required when, as here, the defendant alleges that the court violated the terms of his plea bargain. (People v. Delles (1968) 69 Cal.2d 906, 909.)
DISPOSITION
The judgment is reversed. The matter is remanded and the superior court is directed to sentence defendant in accordance with the original plea agreement or, if the court chooses not to impose such a sentence, to allow defendant to withdraw his plea.
In the event that defendant’s plea is not withdrawn, the trial court is directed to remedy the conflict between the clerk’s minutes and the reporter’s transcript for July 16, 2008, regarding disposition of the four prison-prior enhancements. (See, ante, pp. 3-4.)