Filed 10/4/16 P. v. Son 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                                  C080110

                   Plaintiff and Respondent,                                     (Super. Ct. No. NCR92949,
                                                                                  NCR93064, NCR93596)
         v.

BRIAN KEITH SON,

                   Defendant and Appellant.




         Pursuant to a negotiated disposition of three separate cases, defendant Brian Keith
Son pled guilty to evading a peace officer with willful or wanton disregard for the safety
of other persons or property, possession of methamphetamine for sale, and failure to
appear while on bail. He also admitted he had served three prior prison terms and had
committed a felony while released on bail or his own recognizance. The trial court
sentenced defendant to an aggregate term of nine years four months in prison.
         On appeal, defendant contends the trial court violated the terms of his plea
agreement by sentencing him to prison instead of suspending his sentence and placing

                                                             1
him on probation. We conclude the trial court erred, and therefore we reverse and
remand the matter.
                                     BACKGROUND
       In June 2015, defendant entered into a written agreement to plead guilty to three
felony charges and admit certain sentence enhancement allegations to resolve three
separate cases. In exchange for his pleas and admissions, the People agreed to dismiss
the remaining charges. In accordance with the plea agreement, the case was to be
referred to the adult felon drug court (drug court) for consideration of defendant’s
eligibility for a substance abuse program. Under the terms of the plea agreement,
defendant would be sentenced to prison for nine years four months, unless he was
accepted into the drug court program. If he was accepted into the drug court program, the
nine-year four-month-sentence would be suspended and defendant would be placed on
probation.1 After confirming with the parties that this was the agreement and before
accepting defendant’s guilty pleas, the trial court asked defendant whether he understood
that, “[W]hether or not you get drug court is solely up to the Judge.” Defendant
responded in the affirmative. However, neither the prosecutor nor defense counsel
confirmed this was an element of the parties’ agreement.2
       Prior to the sentencing hearing, a drug court assessment was filed, indicating
defendant had been accepted into the AFDC program. The assessment stated defendant
was a nonviolent repeat offender with underlying substance abuse issues. It further stated




1     The written plea form stated: “AFDC [drug court] Referral. Stipulate To Prison
Term Of 9y 4m, Suspended.”
2      At the plea hearing, the trial court did not advise defendant pursuant to Penal Code
section 1192.5; namely, that its approval of the parties’ agreement is not binding, that it
may later withdraw its approval of the agreement in light of further consideration of the
matter, and that, if approval is withdrawn, he has the right to withdraw his guilty pleas.

                                             2
defendant appeared to be suitable and eligible for participation in the program and could
benefit from the structure of the program.
       The probation officer recommended defendant be granted probation, with 120
days in county jail, and placed into the AFDC program pursuant to the terms of the
stipulated plea agreement. At the initial sentencing hearing, the trial court determined
defendant was not suitable for probation and the drug court program based on his prior
record and the conduct underlying his current charges. The trial court re-referred the
matter to the probation department for a supplemental report and recommendation on the
appropriate prison term. In doing so, the trial court rejected defendant’s argument that he
was entitled to a suspended sentence because he was admitted into the drug court
program, stating defendant was mistaken there was a stipulation to drug court and
probation.
       Following the initial sentencing hearing, defendant filed a motion to withdraw his
guilty pleas, arguing he was promised probation and placement in the drug court program
if he was accepted into the program. The trial court denied defendant’s motion, finding
he did not have good cause to withdraw his guilty pleas because he had agreed at the plea
hearing that the sentencing judge was solely responsible for deciding whether he would
“get drug court.” Thereafter, the trial court sentenced defendant to an aggregate term of
nine years four months in prison.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       Defendant contends the trial court violated the terms of his plea agreement by
sentencing him to prison instead of suspending his sentence and placing him on
probation.
       “[T]he process of plea negotiation ‘contemplates an agreement negotiated by the
People and the defendant and approved by the court. [Citations.] Pursuant to this
procedure the defendant agrees to plead guilty . . . in order to obtain a reciprocal benefit,

                                              3
generally consisting of a less severe punishment than that which could result if he were
convicted of all offenses charged.’ ” (People v. Segura (2008) 44 Cal.4th 921, 929-930.)
       “A negotiated plea agreement is a form of contract, and it 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. [Citation.] If
contractual language is clear and explicit, it governs. [Citation.] On the other hand, “[i]f
the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in
the sense in which the promisor believed, at the time of making it, that the promisee
understood it.” [Citations.]’ [Citations.] ‘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. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
       “Although a plea agreement does not divest the court of its inherent sentencing
discretion, ‘a judge who has accepted a plea bargain is bound to impose a sentence within
the limits of that bargain. [Citation.] “A plea agreement is, in essence, a contract
between the defendant and the prosecutor to which the court consents to be bound.”
[Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to
reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted
the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain
. . . unless, of course, the parties agree.” [Citation.]’ [Citations.]” (People v. Segura,
supra, 44 Cal.4th at p. 931.)
       It has long been the rule that if the trial court disapproves of the negotiated
disposition and seeks to modify it, the court must expressly tell the defendant he or she
can withdraw the plea if the defendant is unwilling to accept the modified terms. (People
v. Johnson (1974) 10 Cal.3d 868, 872 & fn. 3.) “The required explanation and

                                               4
defendant’s right to have his plea withdrawn apply both at the time of entering the plea
and at sentencing.” (People v. Jackson (1980) 103 Cal.App.3d 635, 638.) The trial court
may not “unilaterally modify[ ] the terms of the bargain without affording . . . an
opportunity to the aggrieved party to rescind the plea agreement and resume proceedings
where they left off.” (People v. Kim (2011) 193 Cal.App.4th 1355, 1361; see Jackson, at
p. 638 [a defendant must be permitted to withdraw his plea where the court makes a
unilateral modification in the sentence agreed upon at the time of the plea].)
       When the court errs by imposing a sentence exceeding that to which defendant had
agreed, “relief may take any of three forms: a remand to provide the defendant the
neglected opportunity to withdraw the plea; ‘specific performance’ of the agreement as
made [citation]; or ‘substantial specific performance,’ meaning entry of a judgment that,
while deviating somewhat from the parties’ agreement, does not impose a ‘punishment
significantly greater than that bargained for.’ ” (People v. Kim, supra, 193 Cal.App.4th at
p. 1362.) The preferred remedy is to permit a defendant to withdraw his plea and restore
the proceedings to the original status quo. (People v. Kaanehe (1977) 19 Cal.3d 1, 13-
14.)
       We conclude the trial court erred. As set forth above, prior to accepting
defendant’s guilty pleas, the trial court recited on the record the terms of the parties’ plea
agreement, expressly stating defendant had agreed to be sentenced to state prison for nine
years four months, unless he was accepted into the drug court program. The court further
stated if defendant was accepted into the drug court program, the plea agreement
provided the nine-year four-month sentence would be suspended. The trial court inquired
of the parties whether the court’s statements were an accurate recitation of the agreement,
and the parties responded affirmatively. The trial court later inquired of defendant
whether he understood that whether he “got” drug court was solely up to the sentencing
judge, and he responded affirmatively. However, nothing in the record indicates this was
an element of the parties’ plea negotiations and resulting written agreement.

                                              5
       The record does not clearly and unequivocally disclose the parties expressly
agreed the trial court would retain discretion to sentence defendant to prison if he was
accepted into the drug court program. The written plea agreement does not contemplate
such an outcome. The plea agreement indicates the parties agreed to a stipulated
sentence of either prison or probation, depending on whether defendant was accepted into
the drug court program. Defendant did not initial the box in the plea agreement form
indicating he agreed to an open plea in which he would not be granted probation unless
the court found at the time of sentencing that this is an unusual case where the interests of
justice would be best served by granting probation. At the plea hearing, defense counsel
told the trial court the parties had agreed to a stipulated plea, not an open plea. The
prosecutor clarified the parties had agreed to a stipulated plea with “a referral to [drug
court].” In response, the trial court stated, “So let me get this straight: You have got nine
[years], four [months]. And if he is accepted into AFDC [drug court], the nine [years],
four [months] is suspended; if he is not, it is nine [years], four [months] and state prison.”
Both parties responded in the affirmative. While defendant indicated he understood that
whether he “got” drug court was solely up to the trial judge, the trial court did not explain
what it meant by this statement. The trial court did not confirm with the parties that it
was their mutual intent for the court to exercise its sentencing discretion regarding
defendant’s suitability for probation in the event defendant was accepted into the drug
court program. Nor did the trial court explain, and the parties agree, that its sentencing
discretion regarding the placement of defendant on probation was a binding term of the
plea agreement.
       Further, the prosecutor did not argue the parties had expressly agreed the trial
court would retain discretion to sentence defendant to prison if he was accepted into the
drug court program. At the initial sentencing hearing, the prosecutor (who was not the
same prosecutor who appeared at the plea hearing and signed the plea agreement), was
silent on this issue. He did not argue the trial court’s sentencing discretion was an

                                              6
agreed-upon term of the agreement. Instead, he argued a prison term was appropriate
because drug court is a “pretty light penalty” given defendant’s conduct. In opposing
defendant’s motion to withdraw his guilty pleas, the prosecutor argued the trial court
“clarified and stated that the decision as to whether or not Defendant would receive
AFDC [drug court] was solely reserved for the Judge.”
       The prosecutor’s arguments and the terms of the written plea agreement indicate
the parties did not expressly or implicitly agree that the trial court’s discretion to sentence
defendant to prison was a bargained-for term of the agreement. Neither the written plea
agreement nor the record from the plea hearing clearly discloses the parties contemplated
sentencing proceedings in which the appropriate sentencing choice would stem from the
exercise of sentencing discretion by the trial court. Rather, the record reflects, as
defendant argued at sentencing, the parties entered into a stipulated plea, which required
the trial court to suspend the agreed-upon sentence of nine years four months, grant
probation, and place defendant in the drug court program if he was accepted into the
program. If defendant was not accepted into the program, the stipulated plea required the
trial court to sentence defendant to prison for nine years four months. To the extent the
terms of the plea agreement were ambiguous based on the trial court’s statement at the
plea hearing regarding its discretion to place defendant in the drug court program, the
ambiguity must be resolved in favor of defendant, because the proper focus is on what
induced defendant to plead guilty. (In re Timothy N. (2013) 216 Cal.App.4th 725, 734.)
Here, because defendant’s understanding of the terms of the plea agreement is
reasonable, it controls. (Ibid.)
       The trial court had the authority to modify the parties’ agreement if both parties
expressly consented to the modification. However, the record does not reflect the parties
actually intended to modify the plea agreement at the plea hearing. The trial court also
had the authority to reject the parties’ plea agreement at the plea hearing or accept the
agreement and later withdraw its approval and deviate from the agreed-upon terms so

                                               7
long as it allowed defendant the opportunity to withdraw his plea. Its failure to follow
these procedures was error.
                                      DISPOSITION
       The judgment is reversed and this matter is remanded for further proceedings. On
remand, the trial court shall approve the agreed-upon stipulated sentence or offer the
defendant an opportunity to withdraw his guilty pleas. If defendant chooses to withdraw
his pleas, the matter shall proceed as if no pleas had been entered. If defendant declines
the opportunity to withdraw his pleas, the court may impose the same sentence it
previously imposed.



                                                 /s/
                                                 Robie, J.



We concur:



/s/
Raye, P. J.



/s/
Mauro, J.




                                             8
