Filed 5/20/13 P. v. Hoyt 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                                                  NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for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

                                                            (Sacramento)

                                                                    ----



THE PEOPLE,                                                                                               C068961

                     Plaintiff and Respondent,                                                (Super. Ct. No. 10F02426)

          v.

JOHNAE RAJSHAN HOYT,

                     Defendant and Appellant.




          Defendant Johnae Rajshan Hoyt pled guilty to assault with a deadly weapon (Pen.
Code,1 § 245, subd. (a)(1); count one), threatening to commit a crime that would result in
death or great bodily injury (§ 422; count three), torturing a dog (§ 597, subd. (a); count
four), dissuading a witness (§ 136.1, subds. (b)(2), (c)(1); count five), and misdemeanor
vandalism (§ 594, subd. (a); count six). Defendant also admitted having served two prior
prison terms. (§ 667.5, subd. (b).) In exchange for his guilty pleas, a charge of attempted
robbery was dismissed, which dismissal defendant understood would make him eligible
for day-for-day or “half time” conduct credit. (§§ 211, 664; count two.)



1 Further undesignated statutory references are to the Penal Code.


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       The trial court sentenced defendant to state prison for the stipulated term of eight
years four months. (§ 1170.15.) It awarded him 470 days of custody credit and 470 days
of conduct credit. Defendant obtained a certificate of probable cause.
       On appeal, defendant contends (1) he should be allowed to withdraw his “illusory”
guilty pleas, (2) his trial counsel rendered ineffective assistance, and (3) his fines should
be reduced to the statutory minimum due to misadvisement by the trial court. As we will
explain, one of the terms of defendant‟s plea bargain, his guilty plea to count 1 as a “non-
strike,” cannot be implemented as currently entered. Another material term of the plea
agreement, defendant‟s eligibility for day-for-day presentence conduct credit, cannot be
fulfilled.
       We shall reverse with instructions to permit defendant to withdraw his plea,
should he choose to do so.
                  FACTUAL AND PROCEDURAL BACKGROUND
       The Crimes
       The case went to jury trial on all charges. Before the parties resolved the case
through a plea bargain, the evidence established the following.
       On March 23, 2010, defendant went to the home of his former neighbor, Robert
Burke, to pick up a car. The car needed some repair work, and defendant asked Burke to
help him with it. Burke brought some tools and tried to get a neighbor, Allen Jones, to
help him with the work. However, once Jones learned that defendant did not have any
money to pay for the work, he decided not to help.
       When defendant realized that Burke and Jones would not be working on the car,
his demeanor changed, suggesting he would be violent. Defendant became even more
upset when Burke refused to share his marijuana with defendant.
       Defendant picked up a stick from Burke‟s front porch and swung the stick at
Burke multiple times. On one occasion, the stick came within approximately a half inch



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of striking Burke in the head. As he was swinging the stick at Burke, defendant was
threatening to break Burke‟s windows if he did not bring defendant some marijuana.
       Burke ran off the porch and found a metal stick that he could use to defend
himself. When Burke returned to the porch defendant backed away, allowing Burke to
enter his house, lock the door, and telephone 911.
       While Burke was on the telephone with the 911 operator, he heard defendant
threaten to get a gun, blow Burke‟s head off and kill him. Jones, who was still outside,
saw defendant hit Burke‟s trash can with the stick and heard him tell Burke that, if he did
not come outside, defendant was going to hit Burke‟s dog. When Burke did not come
out, defendant used the stick to hit the small dog. The dog had to be euthanized due to
the injuries he suffered that day.
       Six days later, defendant telephoned Justin Edginton, a mutual friend of defendant
and Burke. Defendant told Edginton to telephone Burke and advise him that, if Burke
did not recant his story about what had happened six days earlier, defendant would “go
all-out” on Burke.
       The Plea Bargain
       On February 15, 2011, after the first day of witness testimony at trial, the parties
informed the court there was a contemplated change of plea. The People outlined the
proposed plea agreement in part as follows: “My proposed offer today since we started
trial, is for the Defendant to plead to the 245, which is Count 1, as a non strike, with force
likely, for the low term of two years.” The agreement further contemplated that the
People would move to dismiss count 2, the attempted robbery, and defendant would
plead to the remaining counts and admit two prison priors for a stipulated sentence of
eight years and four months in state prison.
       The trial court stated the trial testimony constituted a sufficient factual basis to
satisfy all the counts to which defendant was pleading. The court inquired of defense
counsel whether the testimony of three specified witnesses was “sufficient testimony

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and/or factual basis to support your client‟s pleas to Count 1, 3, 4, 5 and 6, sir?” Defense
counsel answered, “Yes, Your Honor.”
       Before accepting defendant‟s pleas, the court advised defendant that both count
three, criminal threats, and count five, threatening a witness with force or violence, were
strikes. The court advised defendant of his rights and twice asked if any other promises
had been made. At the second of the two queries, defendant asked to speak with his
lawyer. Immediately after the conclusion of that private conversation, defense counsel
told the court that “one of the things” influencing defendant‟s decision to plead pursuant
to the agreement was the dismissal of count two, a violent felony. “Based upon the law,
it appears when sentencing is done, Mr. Hoyt would be eligible for half time, and that is
of great import to him, and has drastically influenced his decision as well.” The court
asked the People‟s representative if that was her understanding as well; she replied,
“As far as I know.” The court noted defendant had a “substantial amount” of presentence
credits. The trial court then (properly) incorporated defendant‟s “understanding of credits
that [he] would receive at the Department of Corrections and at sentencing” as one of the
“promises or representations” causing him to change his plea.
       When taking defendant‟s plea to count one, a violation of section 245, subdivision
(a)(1), charged as assault with a deadly weapon and never amended, the trial court asked,
“[t]o that offense as a non strike, sir, what is your plea?” Defendant answered, “Guilty,
Your Honor.” When taking the pleas to counts three and five, the court specified the two
charges were strikes within the meaning of the three strikes law.
       Sentencing and Appeal
       The trial court sentenced defendant to an aggregate term of eight years and four
months, in accordance with his plea bargain. Defendant had accumulated 470 days of
presentence custody credit; the trial court awarded him 470 days of conduct credit. At
sentencing, for the first time, the People questioned whether defendant should receive
470 days of conduct credit. Defense counsel responded that since the trial court had

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sentenced defendant to state prison rather than county jail, he should receive conduct
credit equal to his custody credit. The trial court agreed, referencing recent amendments
to the relevant statutes, and awarded defendant 470 days of conduct credit.
       Defendant obtained a certificate of probable cause and appealed.
                                      DISCUSSION
                                              I
                                 The Law of Plea Bargains
       Plea bargaining is now widely accepted. “„[W]hatever might be the situation in an
ideal world, the fact is that the guilty plea and the often concomitant plea bargain are
important components of this country‟s criminal justice system.‟ [Citation.]”
(Bordenkircher v. Hayes (1978) 434 U.S. 357, 361, 364 [54 L.Ed.2d 604, 609].) Our
Supreme Court has explained that, “„[p]lea negotiations and agreements are an accepted
and “integral component of the criminal justice system and essential to the expeditious
and fair administration of our courts.” [Citations.] Plea agreements benefit that system
by promoting speed, economy, and the finality of judgments. [Citations.]‟ [Citation.] A
plea agreement „is a tripartite agreement which requires the consent of the defendant, the
People and the court.‟ [Citations.] „Acceptance of the agreement binds the court and the
parties to the agreement.‟” (People v. Feyrer (2010) 48 Cal.4th 426, 436-437.)
       “[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be a part of the inducement or consideration, such
promise must be fulfilled.” (Santobello v. New York (1971) 404 U.S. 257, 262, [30
L.Ed.2d 427]; People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker), overruled on
another ground in People v. Villalobos (2012) 54 Cal.4th 177, 183 (Villalobos). If
defendant elects to maintain the plea bargain, the People are bound by such election.
(Ellsworth v. Superior Court (1985) 170 Cal.App.3d 967, 973 [“It is well settled that the
People are strictly held to the terms of a plea bargain made with a criminal defendant”].)



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       “A violation of a plea bargain is not subject to harmless error analysis. A court
may not impose punishment significantly greater than that bargained for by finding the
defendant would have agreed to the greater punishment had it been made a part of the
plea offer. „Because a court can only speculate why a defendant would negotiate for a
particular term of a bargain, implementation should not be contingent on others‟
assessment of the value of the term to defendant. [para.] . . . [para.] Moreover, the
concept of harmless error only addresses whether the defendant is prejudiced by the error.
However, in the context of a broken plea agreement, there is more at stake than the
liberty of the defendant or the length of his term. “At stake is the honor of the
government[,] public confidence in the fair administration of justice, and the efficient
administration of justice. . . .”‟ [Citation.]” (Walker, supra, 54 Cal.3d at p. 1026.)
       Where a plea bargain is induced by illusory, unenforceable promises, defendant
must be given an opportunity to withdraw his plea. (People v. DeVaughn (1977) 18
Cal.3d 889, 896 (DeVaughn); People v. Thurman (2007) 157 Cal.App.4th 36, 42-43;
Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 792.) Where a plea bargain
cannot be specifically enforced, the remedy is to allow the defendant to withdraw the plea
and go to trial on the original charges. (In re Jermaine B. (1999) 69 Cal.App.4th 634,
639 (Jermaine B.)).
       “Where the plea is accepted by the [People] in open court and is approved by the
court . . . the court may not proceed as to the plea other than as specified in the plea.”
(§ 1192.5; Jermaine B., supra, 69 Cal.App.4th at p. 639.)
                                              II
                                      Illusory Promises
       Defendant contends he should be allowed to withdraw his guilty pleas, which were
“illusory” in violation of the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution. He contends his plea was based on three illusory promises that: (1)
count one, assault, would be a “non-strike”; (2) count two, attempted robbery, (a violent

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felony) would be dismissed; and (3) he would receive “half time” or day-for-day conduct
credit in lieu of the 15 percent he would receive but for dismissal of the violent felony.
Defendant contends these promises were illusory because they cannot be or have not
been kept.
       A.     Assault as a Non-Strike
       The information alleged in count one that defendant committed a felony violation
of section 245, subdivision (a)(1), in that he “did willfully and unlawfully commit an
assault upon the person of ROBERT E. BURKE, with a deadly weapon and instrument
other than a firearm, to wit, a stick.” The information alleged that the offense is a serious
felony under section 1192.7, subdivision (c)(23).
       Any felony in which defendant personally uses a deadly or dangerous weapon is a
serious felony. (§ 1192.7, subd. (c)(23).) A serious felony is a strike. (§ 667, subd.
(d)(1); 1170.12, subd. (b)(1).)
       Although the plea bargain, as recited by the People and repeated by the trial court,
clearly stated that defendant was pleading to section 245, subdivision (a)(1) as a “non-
strike,” defendant contends this promise is illusory because in a future prosecution, the
People could rely on the factual basis of the plea, the trial testimony, to establish that
defendant used a deadly weapon. “As used in section 245, subdivision (a)(1), a „deadly
weapon‟ is „any object, instrument, or weapon which is used in such a manner as to be
capable of producing and likely to produce, death or great bodily injury.‟ [Citation.]”
(People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
       Although the “non-strike” aspect of defendant‟s plea bargain is clearly
problematic, the problem is not that the promise itself is illusory, but rather that the
foundation for its implementation was inadequate. The trial court accepted defendant‟s
plea to count one as a “non-strike,” although the information continued to allege it was a
serious felony and the factual basis for the plea supported it as a serious felony through
defendant‟s personal use of a dangerous or deadly weapon. The attempt to agree that

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count 1 was a “non-strike” when the count continued to charge a strike offense and the
factual basis supported the strike offense created a conflict between the intent of the
parties (and the trial court in accepting the plea as a “non-strike”) and the reality of the
offense of conviction. Thus, clearly without the intention to do so, the court “proceed[ed]
as to the plea other than as specified in the plea.” (§ 1192.5.) This conflict may be easily
resolved by conforming the charge and the factual basis to the plea bargain.
       A conviction under section 245, subdivision (a)(1) can constitute a serious felony
within the meaning of section 1192.7, subdivision (c)(23), and thus a strike, only “if the
prosecution properly pleads and proves that defendant personally used a deadly or
dangerous weapon in the commission of the offense.” (People v. Equarte (1986) 42
Cal.3d 456, 465.) Accordingly, for the trial court to properly accept a plea to felony
assault as a “non-strike,” the People must first move to amend the information to charge
assault “by any means of force likely to produce great bodily injury” 2 and to delete the
allegation that the offense is a serious felony. Defendant should then plead explicitly to
assault with “force likely” and the parties should abridge and thus conform the factual
basis of the plea to the amended charge.
       Since, as we explain post, we must reverse and remand to permit defendant to
withdraw his plea due to the illusory promise as to conduct credit, on remand the parties
will have the opportunity to lay a proper foundation if defendant elects to maintain the
plea bargain (with the understanding that his conduct credits will be limited, as we
discuss post).




2 We recognize that section 245 has been amended. Now, assault by any means of force
likely to produce great bodily injury is a separate subdivision, section 245, subdivision
(d). (Stats. 2011, ch. 183, § 1.)

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       B.     Dismissal of Count Two
       Defendant‟s plea agreement contemplated that count two would be dismissed.
Although dismissal of count two was not discussed on the record at sentencing, the
minute order for the hearing indicates that the prosecutor‟s oral motion to dismiss count
two in view of the plea was granted. Thus, this promise was not illusory; it was kept.
       C.     Conduct Credit
       Defendant contends the plea bargain promised him day-for-day or “half time”
conduct credit and he cannot receive this promised term. Defendant recognizes that
because he pled guilty to two serious felonies (counts three and five), under the law in
effect at the time he is limited to one day of conduct credit for every two days of actual
time in custody. The People agree that the “wrong formula was used.”
       Defendant‟s offenses occurred on March 23 and 29, 2010. At that time, the
relevant law on conduct credit was section 4019, as amended by Senate Bill No. 18.
(Stats. 2009-2010, ch. 28 (Third Extra, Sess.) (SB No. 18 (Third Extra. Sess.)), § 50, eff.
Jan. 25, 2010.) “The relevant language of former section 4019 provided: „It is the intent
of the Legislature that if all days are earned under this section, a term of four days will be
deemed to have been served for every two days spent in actual custody . . . .‟ [Citation.]
[¶] Prisoners who were required to register as sex offenders, had been committed for
serious felonies, or had prior convictions for serious or violent felonies were not eligible
for credit at the increased rate. [Citation.]” (People v. Brown (2012) 54 Cal.4th 314,
319, fn. 5.) For those with serious felony convictions, like defendant here, the prior
version of section 4019 applied and it provided: “It is the intent of the Legislature that if
all days are earned under this section, a term of six days will be deemed to have been
served for every four days spent in actual custody.” (Stats.1982, ch. 1234, § 7, p. 4554.)
       Defendant was not eligible for the increased conduct credit provided for by Senate
Bill No. 18, day-for-day or “half time,” due to his pleas to two serious felony



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convictions--counts three and five. Accordingly, his conduct credits must be reduced
from 470 days to 234 days.
       Defendant contends the promise of one-for-one or “half time” credit was a term of
his plea bargain. In response to a question from the trial court about promises made to
defendant, defense counsel made a record that defendant‟s eligibility at sentencing for
such credit was “of great import to him, and has drastically influenced his decision as
well.” The People confirmed the accuracy of defendant‟s understanding somewhat
ambiguously by stating, “As far as I know.”
       The People do not dispute that the promise of enhanced conduct credit was a term
of the plea bargain. They concede defense counsel‟s statement “transformed the issue of
custody credits from a routine, peripheral matter to a material term of the agreement.”
Rather, the People contend the error as to the amount of conduct credit was invited error.
The People assert the request for half time credit was a tactical decision by defense
counsel to get “the best possible deal for his client.” The People‟s argument is not well-
taken; consequently, we reject it.
       The invited error doctrine applies only if it is “„clear that counsel acted for tactical
reasons and not out of ignorance and mistake.‟” (People v. Coffman & Marlow (2004) 34
Cal.4th 1, 49.) Advancing a mistaken view of the law that can easily be discovered and
corrected hardly qualifies as a tactical reason for the action. Here, both parties as well as
the trial court were mistaken about the calculation of credits at the time of the plea. The
People raised the issue only at sentencing, and even then offered no assistance to the trial
court in resolving the issue. The error was not invited; it was shared by everyone
involved. The plea bargain simply contained a term--agreed to by defendant, the People,
and the trial court--that the trial court was without power to fulfill. (See, e.g., DeVaughn,
supra, 18 Cal.3d at p. 896 [beyond the power of the trial court to bargain with defendants
to preserve for appellate purposes the issues of involuntariness of statement].)



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       Where a plea bargain includes a term that cannot be fulfilled, defendant‟s
constitutional rights are violated if the unfulfilled term is “significant.” (Walker, supra,
54 Cal.3d at p. 1024; People v. Arata (2007) 151 Cal.App.4th 778, 787.) In Walker, the
court found a $5,000 restitution fine was a significant deviation from the negotiated terms
of the plea agreement, which had not mentioned any fine. (Walker, supra, at p. 1029.)
Here the deviation is 236 days of conduct credit. In In re Williams (2000) 83
Cal.App.4th 936, a plea bargain included conduct credit, although the defendant may not
have been eligible for such credit because he had committed escape. The appellate court
noted that the violation of the plea bargain was not subject to harmless error analysis.
“Accordingly, we do not speculate why petitioner negotiated for presentence credit as a
material term of his sentence, but 194 days of credit amounts to six months‟ credit against
a six-year term. That is hardly trivial.” (In re Williams, supra, 83 Cal.App.4th at p. 944.)
The case was remanded for determination of whether defendant was eligible for conduct
credit. If he was not, he could withdraw from the plea bargain. (In re Williams, supra, at
p. 946.)
       As in In re Williams, supra, we find 236 days of credit is substantial and the
record shows it was “of great import” to defendant and “drastically influenced his
decision” to accept the plea bargain. Since defendant cannot receive what he was
promised, he must be permitted to withdraw his plea. (People v. Burns (1993) 20
Cal.App.4th 1266, 1274.)
                                             III
                             Ineffective Assistance of Counsel
       Defendant contends his trial counsel rendered ineffective assistance based on the
same three alleged illusory promises discussed in part II, ante. Since we have already
resolved the issue of illusory promises, and we are reversing and remanding the case, we
need not address this contention.



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                                              IV
                            Failure to Advise of Restitution Fine
       Defendant contends the trial court erred during the plea colloquy when it failed to
advise him of the section 1202.4 restitution fine and the section 1202.45 parole
revocation fine. Thus, he claims his $2,000 restitution fine and $2,000 parole revocation
fine must be reduced to the statutory minimum of $200. We disagree.
       “[F]ailure to address the amount of a restitution fine in plea negotiations or during
the plea colloquy does not transform imposition of such a fine into a violation of the plea
agreement. Instead, where neither the parties nor the trial court have specified the fine
amount in the context of a plea bargain, „[t]he restitution fine shall be set at the discretion
of the court . . . .‟ [Citation.] Because no specific amount of fine was expressly
negotiated or otherwise made a part of the plea agreement here, it cannot be said that the
$[2,000] restitution fine and $[2,000] parole revocation fine imposed more punishment
than defendant bargained for.” (Villalobos, supra, 54 Cal.4th at pp. 185-186.)
                                       DISPOSITION
       The judgment is reversed and the matter remanded for the trial court to set a
hearing within 30 days to provide defendant the option to withdraw his guilty plea and
proceed to trial or other proceedings consistent with this opinion.




                                                          DUARTE                       , J.
We concur:


        NICHOLSON                    , Acting P. J.


        HULL                         , J.




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