Filed 7/29/16 P. v. Sutton CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064304

v.                                                                      (Super.Ct.No. SICRF1456522)

NATHAN EUGENE SUTTON,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Inyo County. Candace J. Beason, Judge.

(Retired Judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U.

Le, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       Defendant and appellant Nathan Eugene Sutton was sentenced to three years in

state prison for burglary. (Pen. Code, § 459.)1 He argues that his sentence constitutes an

illegal breach of his plea bargain. Given the record before us we cannot accept his

argument and will affirm.

                                              I

                                STATEMENT OF FACTS

       The instant proceedings began in April 2014 when the People filed a felony

complaint charging defendant with commercial burglary and felony vandalism. (§§ 459,

594, subd. (a).) After competency proceedings resulted in a finding of competence to

stand trial, defendant2 elected to plead no contest in return for probation, 180 days in

county jail and a similar period of community service. Imposition of sentence was

suspended. Sentencing took place on July 22, 2014.3

       On August 5, 2014, a new felony complaint was filed charging defendant with

another commercial burglary, theft, and receiving stolen property. (§§ 459, 484,

subd. (a)/488, 496.) Probation in the first case was ordered revoked.




       1 All subsequent statutory references are to the Penal Code unless otherwise
specified.

       2Apparently conservatorship proceedings were pending with respect to
defendant.

       3 By the time of sentencing defendant had served the required period in jail, and
was released.


                                              2
       Although attempts to resolve the matter(s) were apparently in progress, at a

hearing on October 6, 2014, there were indications that yet another case had been filed,

and defense counsel asked for a delay in hopes of a “global settlement.” The new charge

proved to be a charge of misdemeanor vandalism relating to damage to jail property.

       Negotiations evidently continued, and on December 16, 2014, a global settlement

was discussed. Significantly, the People indicated that the first burglary (as to which

probation had been revoked) would remain a felony and that if defendant failed to abide

by the terms of the contemplated electronic monitoring, “he would serve a three-year

stipulated prison sentence . . . .”

       On January 22, 2015, defendant pleaded no contest to the new commercial

burglary and vandalism, both as misdemeanors. His attorney indicated that

he would “serve the three years . . . and that’s going to be suspended pending 180 days

of—completion of 180 days of electronic monitoring.” However, after some off-the-

record discussions, the court put the agreement on the record as follows: “instead of the

defendant’s probation reflecting a suspension of the imposition of sentence, the defendant

would be placed on formal probation for the remainder of the term previously imposed;

however, the Court would pronounce sentence and the probation would be—would

constitute a suspension of the execution of the felony sentence. The felony sentence that

would be—the execution of which would be suspended would be an upper term of three

years for the felony commercial burglary 459.” The court also commented that the terms

of probation “would remain the same. They would require the defendant to complete 180



                                             3
days. Instead of serving 180 days in the Inyo County jail, he would be directed, with the

approval of the probation officer, to serve 180 days on electronic home detention subject

to the probation officer’s approval.”

       It was further agreed that in the second case, defendant would receive 180 days in

jail for a misdemeanor burglary plea with probation and a suspended sentence, and the

vandalism case would result in another concurrent 180 days in jail. Pleas in these cases

were then taken. Defendant further admitted the allegations in the petition relating to

revocation of his probation in the first case. The entire matter was then referred to

probation “for a sentencing recommendation and report consistent with the settlement

agreement as described including a change from suspension of imposition of sentence to

suspension of execution of sentence.

       Defendant was eventually ordered to appear for sentencing on February 24, 2015.

He failed to show up in court and a bench warrant issued in each case. On March 3,

2015, the court was informed that defendant was being investigated with respect to yet

another offense. This eventually resulted in the filing of a felony complaint alleging a

violation of sections 422 (terrorist threats) and 417, subdivision (a)(1) (brandishing).

Defendant was also charged with multiple counts of failure to appear. (§ 1320.)

       It is clear that all parties were cognizant of the fact that defendant’s behavior had

been influenced by mental health issues and were anxious to reach a disposition of all

cases, one which would avoid a prison commitment. After several continuances, by

May 5, 2015, the parties were prepared to resolve the first few cases. Defendant’s



                                              4
attorney reminded the court that the original agreement was for three years in the first

case with the hope that defendant would instead complete 180 days of electronic

monitoring. However, due to defendant’s failure to appear on February 24, probation

found him ineligible for electronic monitoring. Hence, counsel agreed that “he’s subject

to the three years.” When the court inquired, defendant agreed that he did “understand

the settlement that’s been described by your attorney” in those two cases. At the same

hearing defendant entered no contest pleas to the charges under sections 422 and 1320.

       Finally, on July 7, 2015, the court imposed a three-year term (to be served in

county jail) for the original burglary and concurrent 12-month terms on the other matters.

       Defendant contends on appeal that this was not a Cruz-Vargas4 situation and that

he was never advised of his right to withdraw his plea when the court changed its mind.

(§ 1192.5.)5 We partially agree with his premises but not with his conclusion.




       4  People v. Cruz (1988) 44 Cal.3d 1247 (Cruz); People v. Vargas (1990) 223
Cal.App.3d 1107 (Vargas). In Cruz, the Supreme Court held that a trial court could not
impose a more severe sentence than that contemplated by a plea bargain simply to punish
a defendant for his failure to appear for sentencing. (Cruz, supra, at p. 1253.) However,
Cruz also suggested that a defendant could waive this protection (Id. at p. 1254, fn. 5) and
Vargas approved the now-common practice in which a defendant and the court agree to a
two-tiered sentencing scheme, in which the lower term will be imposed if the defendant
dutifully appears for sentencing, and the higher term if he does not. (Vargas, supra, at
p. 1113.)

       5 That section requires the court to inform a defendant entering a plea of guilty or
nolo contendere that if the court later elects to disapprove of the agreement, the defendant
may withdraw the plea.


                                             5
                                              II

                                       DISCUSSION

       First, the People argue that defendant’s failure to object to the sentence at the time

of sentencing waived or forfeited any claim of error or breach, citing People v. Gordon

(1991) 229 Cal.App.3d 1523. Gordon is inapposite because the defendant was advised of

his right to withdraw his plea when the trial court deviated from his expectations. (Id. at

p. 1527.) If the defendant is unaware that he has such a right, failure to object to the

sentence may not prevent raising the issue on appeal. (See In re Jermaine B. (1999) 69

Cal.App.4th 634, 641.) However, it appears—or at least it is reasonably possible—that

any failure to object was based on the fact that the court’s action correctly reflected the

parties’ understanding.

       At one point the trial court and counsel appeared to believe that defendant had in

fact executed a Cruz/Vargas waiver with respect to one or all of his cases, as the court

commented, after discussing it with counsel, “So the Cruz waiver is applicable to all three

of them.” In fact, only the felony change of plea form includes such a waiver. Thus,

with respect to the case which eventually resulted in a three-year term, defendant did

agree that “if I willfully fail to appear for sentencing, any lid or sentencing agreement

will be void, and the maximum sentence may be imposed.”




                                              6
       However, defendant did appear for original sentencing in that case, and received

the agreed probation and suspension of sentencing. Hence, we doubt that an increased

sentence could have been based on the original waiver. Nor, indeed, is there any

indication that this was the court’s intent; it was only after the court revoked probation

after new offenses were committed that the actual term to be imposed in the first case

became the subject of discussion as the matter was apparently consensually re-opened in

the hope of settling both (and later all) cases.

       Although it is true that not all of the parties’ discussions were as clearly reflected

in the record as we might like, by December 16, 2014, the parties had evidently reached a

tentative conclusion that defendant should be sentenced to three years in the first burglary

case, but that execution of sentence would be suspended and he would have the

opportunity to complete 180 days on electronic monitoring. In January 2015, the same

understanding was expressed both by defendant’s attorney and the court. And despite

defendant’s commission of still more offenses, this remained the agreement on which the

eventual sentence was based.

       Changing the case from one in which defendant was subject to a term not yet

imposed, but possible, to one in which he was subject to a specified but suspended term

did not alter the plea bargain. The original bargain always contemplated that if defendant

failed to perform acceptably on probation, he would receive a prison term. Once he did

fail on probation, the parties agreed to a three-year suspended term. Again, no violation

of the original agreement.



                                               7
       As it turned out, of course, the suspended term was imposed because defendant

was rejected as a proper subject for electronic monitoring due to his failure to appear in

February 2015. It is at this point that we begin to see some merit in defendant’s position.

       On December 16, 2014, defendant’s attorney described the agreement as involving

180 days of electronic monitoring with respect to all the cases then at issue. At that time,

the case was continued so that the probation officer could advise the court as to

defendant’s suitability. After some kind of discussion off the record with the probation

officer the court, as set out above, described the agreement as one which would “require

the defendant to complete 180 days” but not in jail, rather with electronic monitoring.

Later, defense counsel, referring to one of the subordinate cases, stated that “[defendant]

will again do 180 days of jail concurrent . . . of course with the referral to electronic

monitoring.”

       As we see in the case and defendant’s position, the issue is whether or not it was a

requirement that he serve 180 days in electronic monitoring rather than in jail. That is,

were the parties—including defendant’s attorney—mistaken in believing that because

defendant was rejected from the electronic monitoring program, he could not satisfy the

180-day requirement by serving the time in jail?

       On the face of it this makes little sense. Electronic monitoring is obviously less

restrictive than jail, and was clearly so viewed by all parties. If defendant were willing to

serve the 180 days in jail, arguably this would have satisfied the terms of his probation

and prevented execution of the prison sentence.



                                               8
       However, on the appellate record we cannot conclude with certainty that this was

the case. As we have set out above, all sides, including defendant’s attorney, spoke and

acted in accordance with an apparent understanding that defendant could only satisfy the

conditions of probation by qualifying for, and completing, a period on electronic

monitoring. This is not completely illogical. Off the record negotiations and discussions

may have reached the point at which it was agreed that if defendant could not conduct

himself so as to be acceptable for electronic monitoring, probation would be most likely

ineffective. We cannot assume that both attorneys and the judge were all mistaken in

their understanding of the bargain eventually concluded. In this context defendant’s own

failure to bring up the issue in the trial court does have some relevance.

       This does not mean that defendant is without a remedy. Where the appellate

record does not include clear evidence of attorney mistake—that is, ineffective assistance

of counsel resulting in prejudice to the defendant—the remedy of habeas corpus is readily

available. (People v. Pope (1979) 23 Cal.3d 412, 426; People v. Szadziewicz (2008) 161

Cal.App.4th 823, 839.) Our affirmance does not prevent defendant from filing a petition

for writ of habeas corpus in the superior court, where the assertions which he now raises

may be supported, if appropriate, by competent affidavits or declarations concerning the

actual agreement or counsel’s understanding thereof.




                                              9
                                     III

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               McKINSTER
                                                           Acting P. J.
We concur:



MILLER
                       J.



CODRINGTON
                       J.




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