Filed 10/29/13 P. v. Galaviz CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062990

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS255144)

MICHAEL GALAVIZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Francis M.

Devaney, Judge. Affirmed as modified and remanded with directions.



         Vanderhoff Law Group and Jeanne C. Vanderhoff, under appointment by the

Court of Appeal, for the Defendant and Appellant.

         Kamala D. Harris, Attorney General, for the Plaintiff and Respondent.
       The People charged Michael Galaviz with resisting an executive officer (Pen.

Code,1 § 69); battery upon an officer (§ 243, subd. (b)); resisting an officer (§ 148, subd.

(a)(1)); and vandalism of property valued under $400 (§ 594, subd. (b)(1)). The People

further alleged he had prior convictions under the "Three Strikes" Law.

       Galaviz was self-represented at the start of trial court proceedings, but the court

later appointed counsel for him because of its concern he was not mentally competent to

represent himself. (People v. Johnson (2012) 53 Cal.4th 519.)

       Galaviz pleaded guilty to resisting an executive officer and the People dismissed

the remaining charges against him. Although the plea agreement stipulated that he would

serve 365 days in jail, the court sentenced him as follows: "Imposition of sentence is

suspended for three years. I am going to place you on probation for three years on the

following conditions. I am going to sentence you to 389 days in the custody of the

county sheriff. I'll give you credit . . . for a total of 389 days against the 389-day

commitment." Galaviz was then released from custody. He did not object to a probation

condition that his probation officer approve his residence and employment.

       Appointed counsel has filed a brief summarizing the facts and proceedings below.

Counsel presents no argument for reversal but asks us to review the record for error as

mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California

(1967) 386 U.S. 738, counsel refers to possible but not arguable issues of whether (1) the

court abused its discretion by revoking Galaviz's right to represent himself; (2) the court



1      All statutory references are to the Penal Code.
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erred by requiring the probation officer to approve Galaviz's residence and employment;

(3) his attorney in the trial court provided prejudicially ineffective assistance by failing to

object to the probation condition regarding Galaviz's residence and employment; and (4)

at sentencing, the court erroneously treated section 69 as a felony by sentencing him to a

389-day jail term despite the bargained for misdemeanor sentence of 365 days in jail.

       We granted Galaviz permission to file a brief on his own behalf. He has not

responded. Having reviewed the entire record pursuant to People v. Wende, supra, 25

Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues

referred to by appellate counsel, we conclude the trial court erroneously sentenced

Galaviz to 389 days instead of the bargained for 365 days.

       Galaviz pleaded guilty to an offense, misdemeanor resisting an executive officer,

that is classified as a wobbler because it is punishable either as a felony or a

misdemeanor. (§§ 69, 17, subd. (b).) Because a negotiated plea agreement is a form of

contract, it is interpreted according to general contract principles. Acceptance of the

agreement binds the court and the parties to the agreement. (People v. Segura (2008) 44

Cal.4th 921, 930.) In People v. Barkeley (2008) 166 Cal.App.4th 1590, the court faced

an ambiguity in the trial record, but concluded on the facts of that case that "[t]here was

no evidence that [the trial court] intended to impose a sentence that was inconsistent with

defendant's plea agreement." (Id. at p. 1595.)

       People v. Glee (2000) 82 Cal.App.4th 99, 106 is analogous. There, an ambiguity

existed because the trial court had stated it was placing the defendant on "felony



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probation" for one year, but nevertheless specified that the probation was "summary

probation." (Id. at pp. 105-106.) The appellate court concluded the imposition of a

one-year sentence in county jail followed by one year of summary probation indicated the

trial court intended to impose a misdemeanor sentence. (Glee, at pp. 102, 104-105.)

      Here, the trial court approved the plea agreement in which the parties stipulated

Galaviz's sentence would be 365 days in jail. At sentencing, the court said it would

follow the probation officer's report. That report did not state a recommended sentence,

noting instead that under the plea agreement, Galaviz would serve a 365-day jail term.

The court's felony sentence of 389 days in jail contradicts the bargained for misdemeanor

sentence. Accordingly, we conclude Galaviz should receive the benefit of his bargain,

and the sentence modified.




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                                     DISPOSITION

      We modify the judgment on the Penal Code section 69 conviction to a 365-day jail

term. As so modified the judgment is affirmed. The trial court is directed to prepare an

amended abstract of judgment reflecting the modification and forward a certified copy of

the abstract to the Department of Corrections and Rehabilitation.




                                                                          O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




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