Opinion
A148746
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON WEBER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-634569)
On May 22, 2013, pursuant to a plea agreement, Jason Weber pled no contest to one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4).) Weber was placed on formal probation for a period of three years and ordered to serve 60 days in county jail. On February 24, 2016, the Sonoma County Probation Office filed a fourth petition to revoke Weber's probation. While the fourth petition was pending, Weber filed a motion for nunc pro tunc reduction of his felony conviction to a misdemeanor based on what he alleged was an agreed term of his plea bargain. The court denied the motion, and Weber admitted the probation violation. Probation was revoked and reinstated, on condition that Weber serve a one-year term in county jail. Weber appeals the denial of his motion and the sentence imposed.
Undesignated statutory references are to the Penal Code.
Assigned counsel submitted a Wende brief, certifying that counsel was unable to identify any issues for appellate review. Counsel also submitted a declaration confirming Weber was advised of his right to personally file a supplemental brief raising any points he wishes to call to this court's attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.) We find no arguable issues and affirm.
People v. Wende (1979) 25 Cal.3d 436.
I. BACKGROUND AND PROCEDURAL HISTORY
Weber challenges only the denial of his motion for specific performance of his plea bargain and the sentence imposed after his final probation violation. Our discussion of the facts is therefore limited to those relevant to the narrow issues before us.
Weber obtained a certificate of probable cause (§ 1237.5) permitting appeal of this issue.
On December 22, 2016, we granted Weber's request to augment the record with a copy of the Sonoma County Superior Court docket minutes indicating that Weber's probation was terminated unsuccessfully upon his release from county jail.
The Plea Bargain
On May 17, 2013, Weber was charged by felony complaint with one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). It was further alleged that Weber personally inflicted great bodily injury. (§ 12022.7, subd. (a).) On the complaint was an "ECR Offer" reading, "Felony 245(a)(1) with force likely, 60 days jail, 3 years formal probation with stay away and restitution. If defendant completes first year with no violations we would reduce it to a misdemeanor." (Italics added.)
On May 22, 2013, Weber entered a plea of no contest to assault by means of force likely to produce great bodily injury, and the court struck the great bodily injury enhancement. The advisement of rights, waiver, and plea form signed by Weber stated that the conditions of his plea included a grant of probation, with 60 days in county jail and "Reduc[tion] to a misdemeanor after 1 year w/o violation." The trial court stated during the plea colloquy that "after the end of one year, if you are in full compliance with your probation and you have had no new law violations—[¶] . . . [¶] this can be reduced to a misdemeanor." (Italics added.) The written "Probation/Conditional Sentence Order" recited that the offense, "may be reduced to a misd. after 1 year w/o violations." (Italics added.) Consistent with the agreement, the court placed Weber on formal probation for a period of three years and ordered him to serve a term of 60 days in county jail.
Probation Violations
The first petition to revoke Weber's probation was filed on February 23, 2015, alleging that on February 19, Weber was in an argument with his roommate and exposed the roommate to pepper spray. Weber admitted the violation. Probation was revoked and reinstated with the condition that he serve 180 days in county jail and complete a treatment program at the Day Reporting Center.
A second revocation petition was filed on August 19, 2015, alleging Weber failed to participate in the treatment program and failed to appear at eight scheduled appointments. Weber was advised by the probation department that a bench warrant had been issued for his arrest. He was told to surrender but did not do so. Weber was arrested almost a month later on another outstanding felony warrant. On October 13, 2015, Weber admitted the violation. His probation was again revoked and reinstated, on the conditions that he serve 60 days in county jail and participate in the Day Reporting Center treatment program.
On December 9, 2015, a third petition to revoke probation was filed, alleging Weber failed to report for his treatment program intake interview and failed to report to the probation department as directed. A bench warrant was issued for his arrest, and he was taken into custody on December 22, 2015. On January 6, 2016, Weber admitted the violation. His probation was again revoked and reinstated, but with a two-year extension, additional conditions, and credit for time served.
A fourth petition to revoke Weber's probation was filed on February 24, 2016, following his arrest by Santa Rosa police, who found Weber intoxicated, unable to care for himself, and attempting to fight with others.
Weber's Motion for Misdemeanor Reduction
Pending hearing on the fourth petition, Weber filed a motion seeking specific performance of the plea agreement and nunc pro tunc reduction of his felony assault conviction to a misdemeanor. At a May 18, 2016 hearing, Weber contended he successfully completed the first year of supervised probation without violations and, therefore, his offense should be reduced to a misdemeanor retroactively as anticipated in the original plea agreement. The People opposed the motion, arguing the plea agreement only offered Weber the conditional possibility of misdemeanor reduction and Weber had not sought that reduction prior to his multiple probation violations. The court (Hon. Arthur Wick) suggested referral of the matter to the judge who had taken the plea (Hon. Jamie Thistlethwaite), but Weber's counsel asserted there was no ambiguity in the terms of the plea agreement and submitted the matter to Judge Wick. After review of the records relating to the plea, the court found the plea agreement ambiguous and denied the motion for specific performance.
Judge Thistlethwaite presided over the subsequent probation violation hearing and imposed the sentence Weber contests.
At a subsequent hearing, Weber admitted violation of the terms of his probation. Probation was revoked and reinstated, and he was ordered to serve one year in county jail with custody credits for 224 days. Weber filed a timely notice of appeal.
As reflected in the augmented record, probation has since been terminated on Weber's release from custody.
II. DISCUSSION
"A negotiated plea agreement is a form of contract and is interpreted according to general contract principles. [Citations.] 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.)' . . . 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.' " (People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Feyrer (2010) 48 Cal.4th 426, 437, abrogated by statute in other respects, as recognized in People v. Park (2013) 56 Cal.4th 782, 791 & fn. 6.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) In the event of ambiguity, "we consider the circumstances under which this term of the plea agreement was made, and the matter to which it relates ([id.], § 1647) to determine the sense in which the prosecutor and the trial court (the promisors) believed, at the time of making it, that defendant (the promisee) understood it (id., § 1647)." (Shelton, at pp. 767-768.)
The trial court found ambiguity. Were the motion before the court one to withdraw the plea, that finding would have necessitated further inquiry. The motion, however, sought only specific enforcement—a remedy the court could not grant here. "[A] defendant is not entitled to specific performance of a plea bargain 'absent very special circumstances.' " (People v. Calloway (1981) 29 Cal.3d 666, 668.) Specific performance may only be ordered " 'when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.' " (People v. Kim (2011) 193 Cal.App.4th 1355, 1362.)
Weber argued in the trial court that two references to misdemeanor reduction reflect unambiguous requirements: (1) the prosecutor's "ECR" offer that if Weber "completes first year with no violations we would reduce it to a misdemeanor" (italics added); and (2) the plea form statement that the conditions of Weber's plea included "Reduc[tion] to a misdemeanor after 1 year w/o violation." Nothing in the written record or the court's colloquy indicates how this reduction would be accomplished, and we know of no means by which it could be reduced without further action by the court. Regardless of the ECR offer's wording, the prosecution had no power to reduce the offense. Once a defendant has entered a felony plea before the court, the only mechanisms available for reduction are those provided in section 17, subdivision (b) or, in some instances, the petition procedures under The Safe Neighborhoods and Schools Act (Proposition 47). (§ 1170.18.)
Weber did not petition for reduction under Proposition 47.
Section 17, subdivision (b)(3) permits the court, following grant of felony probation, to later declare the offense to be a misdemeanor "on application of the defendant or probation officer." That decision requires the exercise of judicial discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [trial court has broad discretion under § 17, subd. (b), in deciding whether to reduce a wobbler offense to a misdemeanor].) In making a determination under section 17, the court considers the facts surrounding the offense and the characteristics of the offender. (Alvarez, at p. 978; People v. Tran (2015) 242 Cal.App.4th 877, 887 [one purpose of sentencing discretion under § 17, subd. (b) is "to afford the sentencing court greater flexibility in tailoring the punishment to fit both the crime and the offender"].) Here, the court's colloquy and written sentencing order made it unambiguously clear that the court did not intend to surrender that discretion, telling Weber the offense "can be reduced" if he had no further violations and that it "may be reduced" under those circumstances—not that it would be reduced. Neither Weber nor his counsel questioned the court's articulation of the term.
Had Weber filed a motion for reduction of his sentence after May 22, 2014, and before his multiple probation violations, the court still would have been required to evaluate the appropriateness of reduction. " ' "To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision." ' " (People v. Tran, supra, 242 Cal.App.4th at p. 887.) What those facts might have been, and whether the court would have exercised its discretion in Weber's favor is unknown, and unknowable, since Weber made no such application. A "sentencing court is not bound by the bargain [between the prosecution and the defendant], but is empowered to disapprove it and deny it effect, at least so long as the parties can be restored to their original positions." (People v. Kim, supra, 193 Cal.App.4th at p. 1360.) "Such withdrawal is permitted, for example, . . . where the court becomes more fully informed about the case [citation], or where, after further consideration, the court concludes that the bargain is not in the best interests of society." (People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338; Kim, at p. 1361.) No " 'very special circumstances' " justifying specific performance were shown here. (See People v. Calloway, supra, 29 Cal.3d at p. 668.) Had the court declined prior to the February 2015 probation violation to grant the misdemeanor reduction Weber contends he was entitled to receive, his remedy would have been a motion to set aside his plea, not to compel the court to grant the reduction.
If Weber was not entitled to an automatic reduction of his offense prior to the February 2015 probation violation, and the court could not have been compelled to grant a petition for misdemeanor reduction had it been filed prior to that violation, the court certainly could not be compelled to grant such a petition at a time when before it was an ample history demonstrating Weber's failure to comply with the conditions of his probation and Weber's failure to rehabilitate himself. "[T]he probation statutes confer upon the trial court jurisdiction and authority over a defendant during the term of probation. These statutes are intended to afford the defendant an opportunity to demonstrate his or her rehabilitation in order to obtain early termination of probation, reclassification of the offense, or dismissal of the action, and—in certain cases—all such forms of leniency." (People v. Feyrer, supra, 48 Cal.4th at p. 440.) We are unaware of any authority that would require or authorize a court, when asked to exercise its discretion, to countenance a legal fiction that the defendant had not engaged in admitted misconduct.
In addition to Weber's judicial admissions of probation violations, the record contains two letters from Weber to the court discussing his substance abuse and mental health issues, and seeking leniency. We note Weber did not allege a violation of his plea agreement in either letter. --------
Finding no authority for the remedy Weber sought in the trial court, we find no arguable issues as to denial of his motion. We likewise find no arguable issues with respect to his sentence.
Upon finding a defendant has violated probation, a court may modify, revoke, or terminate the defendant's probation. (§ 1203.2, subds. (a), (b)(1); see Couzens et al., Sentencing California Crimes (The Rutter Group 2016) ¶ 23:1, p. 23-2 (rel. 7/2016) ["[a]fter a defendant violates felony probation, the court may either reinstate the defendant on probation with additional sanctions and/or modification of the conditions of probation, or send the defendant to state prison"].) "The decision whether to reinstate probation or terminate probation (and thus send the defendant to prison) rests within the broad discretion of the trial court." (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421.) In imposing an additional county jail term rather than prison, Judge Thistlethwaite (who accepted the original plea) indicated she took into consideration Weber's lack of a prior criminal record and the fact he initially complied with the terms of his probation. Nothing in the record demonstrates any abuse of discretion.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.