Filed 3/7/16 P. v. Dozier CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                            C078630

                   Plaintiff and Respondent,                                   (Super. Ct. Nos.
                                                                           CRF 14-297, CRF 14-364)
         v.

RODNEY KEVIN DOZIER,

                   Defendant and Appellant.




         Following a plea bargain, defendant Rodney Kevin Dozier challenges the imposed
sentence, arguing the trial court breached the negotiated plea agreement by requiring a
six-month residential treatment program. We agree and strike the offending requirement.

                                     PROCEDURAL BACKGROUND

         In exchange for dismissing various charges, defendant pleaded no contest to two
counts in two separate cases: sale or transportation of marijuana (Health & Saf. Code,


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§ 11360, subd. (a); case No. CRF 14-297) and receipt of stolen property (Pen. Code,
§ 496, subd. (a); case No. CRF 14-364). The parties stipulated to a split sentence: the
upper term of four years for the marijuana count, to be served on mandatory supervision,
and eight months for receipt of stolen property, to be served in county jail.

       At sentencing, the parties raised the possibility of defendant completing a six-
month residential treatment program in lieu of the eight-month jail term. The prosecution
explained: “[T]he plan right now is he is doing eight months in the county jail and then
going on mandatory supervision. If he has a program, we would have no objection to
him going into a program and being released on mandatory supervision for the
completion of that program in lieu of the eight months. If he doesn’t, obviously, then he
knows where he is going and what he is doing.”

       The court, noting that probation had openings at some programs, asked defendant
to enroll in a program by the time of sentencing: “So if that is what you are going to do,
we need to have it in place at the time we sentence you.” Defendant replied, “Okay,” and
the court agreed to “go along with counsel’s agreement on what the sentence will be
. . . .” The court later reiterated: “And if you want that program, I’m going to order it at
judgment and sentencing, so make sure we have that.”

       But by sentencing, defendant had not enrolled in a residential program. His
counsel explained: “He has applied to many. . . . And in the area, he did check out
Pathways and the other local programs, but it cost quite a bit. He found some programs
that were [$]6,000 a month, just wholly unaffordable for him. So he’s going to be
looking at Salvation Army and whatever resources they have. [¶] If not, he can do the
eight months and then can begin his supervision. He understands he’ll be under terms
and conditions of supervision.”

       The court then imposed a 240-day term for receipt of stolen property and an upper
term of four years for sale or transportation of marijuana to be served under mandatory

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supervision. The court also imposed a requirement to “participate in and successfully
complete a minimum of six-month residential treatment program after serving [the 240-
day jail term].”

       Defense counsel responded, “Your Honor, may the court consider making that at
the discretion of Probation, something that he and Probation can talk about?” The court
replied, “I can’t do that, Counsel. It’s a prison sentence.”

       The court continued: “[Defendant] is in dire need of a rehab. I’m going to order
it. He had five pounds of marijuana. Something needs to be done to rectify this situation.
He can either successfully complete the rehab or he can serve the rest of the four years.
Five pounds. He has a history which needs to be addressed. I’m not just going to give
him eight months for five pounds. And his criminal history, plus this was the agreed-
upon resolution reached between the parties and myself. So it is part of the overall
agreement that he is going to be addressing this issue. [¶] So I certainly note counsel’s
input, but I’m ordering the program, six-month rehab and any follow-up that they direct
you to. [¶] Again, if he doesn’t want to resolve this issue, he can spend the rest of his
time in county jail.”

       The court did not admonish defendant, at sentencing or in taking his plea, that the
court may withdraw its approval of the plea agreement, in which case defendant may
withdraw his plea. Defendant signed a plea form in case No. CRF 14-297, which
provided under the heading “Discovery of New Facts”: “I understand that the plea
agreement in item 2 . . . is based on the facts before the court, and if the court discovers
new facts, such as an additional prior felony conviction not listed on this form, the court
may refuse to accept the plea agreement. If the court discovers new facts and refuses to
accept this plea agreement, I understand that I will be allowed to withdraw my plea.”

       Defendant reports that he has completed the eight-month jail term.



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                                       DISCUSSION

       On appeal, defendant contends the trial court breached the plea agreement by
imposing a significantly greater punishment than the court had previously approved. He
urges that, because he has already performed his part of the bargain by serving eight
months in county jail, the appropriate remedy is specific performance of the plea
agreement.

       “When a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment, both parties, including the
state, must abide by the terms of the agreement. The punishment may not significantly
exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013,
1024 (Walker).) But not every deviation from the agreement is constitutionally
impermissible. (Ibid.) “[T]he 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.)

       “Whether or not a defendant waives an objection to punishment exceeding the
terms of the bargain by the failure to raise the point in some fashion at sentencing
depends upon whether the trial court followed the requirements of [Penal Code] section
1192.5. That section provides in pertinent part that when a plea bargain is accepted by
the parties and approved by the court, the defendant generally ‘cannot be sentenced on
such plea to a punishment more severe than that specified in the plea and the court may
not proceed as to such plea other than as specified in the plea.’ The court ‘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)




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in such case, the defendant shall be permitted to withdraw his plea if he desires to do
so.’ ” (Walker, supra, 54 Cal.3d at pp. 1024-1025.)

       But the statutory admonition need not be given orally; it may be recited in a plea
form. (In re Ibarra (1983) 34 Cal.3d 277, 285; People v. Quesada (1991)
230 Cal.App.3d 525, 536.)

       At the outset, we note that defendant has preserved this issue on appeal.
Defendant was not admonished of his right to withdraw his plea under section 1192.5,
when he pleaded no contest. And his plea form only indicated he could withdraw his
plea if the court withdrew support based on the discovery of new facts. The record does
not reflect that the deviation was based on new facts. Moreover, at sentencing, defense
counsel effectively raised the issue “in some fashion” by asking the court to make the
residential treatment program at probation’s discretion. Under the circumstances, that
was sufficient to preserve the issue. We thus proceed to the merits.

       The terms of the plea agreement were unambiguous: Defendant would serve eight
months in county jail, unless he enrolled in a residential treatment program. The imposed
six-month residential treatment program requirement in addition to the eight-month jail
term was in significant excess of the parties’ agreement. The program significantly
increased the time defendant would spend away from home. It may impose a substantial
financial burden, as defense counsel alluded to. And the requirement raised the specter of
serving the four-year term if defendant failed to complete the residential program.
Whereas, under the plea agreement, the consequence of not completing the treatment
program was serving the eight-month jail sentence.

       Thus, the imposed treatment program requirement significantly exceeded the plea
agreement, and its imposition was error.




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       The People argue, in the alternative, that if there was error, the proper remedy is to
order defendant placed in a treatment program, or to remand for resentencing. But as
defendant has already served his eight-month jail term, requiring treatment at this stage,
or allowing resentencing, would contravene the plea agreement. Accordingly, the
appropriate remedy is to strike the offending requirement to effect the negotiated plea
agreement.

                                      DISPOSITION

       We modify the judgment to strike the requirement that defendant complete a six-
month residential treatment program. The trial court is directed to amend the conditions
of mandatory supervision to reflect this change. The trial court is further directed to
forward a certified copy to the probation officer of Yuba County. As modified, the
judgment is affirmed.


                                                        BUTZ                  , J.



We concur:



      ROBIE                 , Acting P. J.



      RENNER                , J.




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