Filed 11/13/14 P. v. Fleming 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059240

v.                                                                       (Super.Ct.No. FCH1200209)

CHRISTOPHER FLEMING,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown,

Judge. Reversed with directions.

         Christian C. Buckley, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Parag Agrawal, Deputy Attorneys General, for Plaintiff and

Respondent.




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         On May 17, 2012, defendant and appellant Christopher Fleming entered a plea

agreement and pled no contest to one count of obtaining property by false pretenses (Pen.

Code, § 532, subd. (a), count 1)1 in exchange for three years of probation and a 365-day

suspended county jail sentence. Defendant was released from custody on his own

recognizance and was to return to court for pronouncement of judgment on June 28,

2012. The plea agreement listed the terms of his release, which included the orders that

he stay away from two specified residences and have no contact with certain individuals.

A trial court subsequently found that defendant violated the terms of his release. The

court intended to place defendant on probation, pursuant to the plea agreement.

However, when the court repeatedly asked him if he would agree to abide by the terms

and conditions of probation, defendant refused to give a definitive answer. The court

treated his response as a rejection of the probation terms and sentenced him to the

midterm of two years in county prison.

         On appeal, defendant argues that the court improperly sentenced him to a

punishment that was outside the terms of the plea agreement. He contends that when the

court could not enforce the plea agreement, it should have withdrawn its approval of the

negotiated plea and permitted him to withdraw his plea. We agree and reverse the

judgment with directions for the court to either enforce the plea agreement, or withdraw




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

                                                2
its approval of the agreement and permit defendant to withdraw his guilty plea and go to

trial on the original charge.

                       FACTUAL AND PROCEDURAL BACKGROUND

       On May 8, 2012, defendant was charged by felony complaint with obtaining

money, labor or property by false pretenses. (§ 532, subd. (a), count 1.)

       On May 17, 2012, defendant entered a no contest plea to the charged offense, in

exchange for three years of probation and a suspended 365-day county jail sentence. The

prosecutor informed the court that defendant was not actually going to be placed on

probation until June 28, 2012, and that he was going to be released on his own

recognizance under terms specified on the plea form. Such terms required defendant to

stay away from two specified residences and have no contact with certain individuals.

The court warned defendant that, pending his sentencing on June 28, 2012, he had to

follow those terms. Defendant agreed and then pled no contest to count 1. The court

ordered him to return for sentencing and referred the matter to the probation department

for a presentence report.

       The sentencing hearing was continued several times. On July 5, 2012, the court

held a hearing and noted that a new complaint had been filed alleging that defendant went

to one of the prohibited residences on June 16, 2012. Thus, the court kept him in custody

in the instant case and set bail at $250,000. Defendant informed the court that he posted

an affidavit outside of the courtroom and “revoked” his plea. The court explained that he




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did not have a unilateral right to withdraw his plea and that his attorney would be making

a formal motion to withdraw the plea in the next few days.

       On July 12, 2012, defendant filed a motion to withdraw his plea, alleging that he

was forced to enter his plea out of fear that if he did not, he would be sent to Patton State

Hospital for a psychological evaluation.

       On July 30, 2012, defense counsel declared a doubt as to defendant’s mental

competence, pursuant to section 1368. The court suspended the proceedings. Defendant

underwent a psychological evaluation on August 14, 2012. The psychologist opined that

he was competent to stand trial.

       At a hearing on September 12, 2012, the parties stipulated that defendant was

competent to stand trial, and the court reinstated the proceedings. The court then heard

arguments regarding defendant’s motion to withdraw his plea. The court denied the

motion. Defendant argued with the court and said that his attorney did not represent him.

The court gave him a form to fill out regarding self-representation, but then denied his

request to represent himself.

       On October 3, 2012, the court held a hearing to determine whether or not

defendant complied with the terms of his release from custody, prior to sentencing. A

police detective testified that he went to one of the residences listed in the plea agreement

and saw defendant there. The court determined that defendant violated the release terms

by going to the residence. Defendant argued extensively with the court to the point that it

ordered him removed from the courtroom. The prosecutor asked the court to place


                                              4
defendant on probation that day and order him to serve 365 days in county jail. The court

noted that a probation report was filed on June 20, 2012. Defense counsel said he had

reviewed the report but had not reviewed the probation terms with defendant. The court

took a recess to allow defense counsel to do so. Defendant was then brought back into

the courtroom. The court asked defendant if he agreed to abide by the probation terms,

but defendant said he did not understand them. Defendant then challenged the court on

matters such as the court’s jurisdiction and its oath of office. The court refused to

indulge defendant in his inquiries and told him he had two options—he could either agree

to the probation conditions and be placed on probation, or he could be sentenced to

county prison. Defendant asked how long the county prison term would be, and the court

explained that the term for his offense was 16 months, two years, or three years.

Defendant would not answer the court directly as to which option he wanted, so the court

repeatedly asked him if he would accept the terms of probation. Defendant asked the

court to read him the terms of probation and go through them “point by point.” The court

confirmed with defense counsel that he went over the terms with defendant.

       Defendant continued to refuse to answer the court’s question about whether he

wanted to abide by the probation conditions or be sentenced to county prison, and instead

began ranting at length. The court warned defendant that if he continued to “play games”

with the court, it would have him removed again. Defendant said he would

“conditionally accept” the court’s offer to have him removed, and continued to




                                              5
antagonize the court. The court ordered him removed, and defendant cursed at the court

and said he did not accept any of the court’s offers or probation.

       After defendant was removed from the courtroom, the court stated on the record

that it gave defendant an opportunity to accept or reject the probation terms, and since

defendant did not give a definitive answer, the court would treat that as a rejection. The

court stated that it was in no position to place defendant on probation and that it was clear

he did not wish to abide by the terms of probation. The prosecutor agreed, and the court

said it intended to sentence defendant to county prison. Defense counsel asked for the

low term. Based on defendant’s criminal record, the court sentenced him to the midterm

of two years in county prison.

                                         ANALYSIS

                  The Court Improperly Sentenced Defendant on the Plea

       Defendant argues that even though he may have rejected probation at the

sentencing hearing, the court did not have the authority to impose a more severe

punishment than that specified in the plea agreement. We agree. Since the court could

not enforce the plea agreement, it should have withdrawn its approval of the negotiated

plea and allowed defendant the opportunity to withdraw his plea, pursuant to

section 1192.5.

       “Under section 1192.5, if a plea agreement is accepted by the prosecution and

approved by the court, the defendant ‘cannot be sentenced on the plea to a punishment

more severe than that specified in the plea . . . .’ The statute further provides that if the


                                               6
court subsequently withdraws its approval of the plea agreement, ‘the defendant shall be

permitted to withdraw his or her plea if he or she desires to do so.’ [Citations.]”2

(People v. Masloski (2001) 25 Cal.4th 1212, 1217.) Furthermore, “[i]f the court is for

some reason unable to effectuate the bargain, a defendant must be given an opportunity to

withdraw his guilty plea. [Citations.]” (People v. Pinon (1973) 35 Cal.App.3d 120, 124-

125 (Pinon).)

       In People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), the defendant entered into a plea

bargain, was released on bail, but then failed to appear for sentencing. (Id. at p. 1249.)

When he was apprehended and sentenced, the trial court announced its intention not to

abide by the plea bargain, and it refused to allow the defendant to withdraw his plea.

(Ibid.) The Supreme Court held that the defendant’s failure to appear for sentencing was

not a breach of the plea agreement, but rather a separate offense for which the defendant

was entitled to trial. Accordingly, the trial court’s determination not to follow the terms




       2  Section 1192.5 provides, in relevant part: “Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to the plea other
than as specified in the plea. [¶] If the court approves of the plea, it 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)
in that case, the defendant shall be permitted to withdraw his or her plea if he or she
desires to do so.”


                                              7
of the plea bargain required that the defendant be given an opportunity to withdraw his

plea. (Id. at pp. 1249, 1253-1254.)

       In People v. Johnson (1974) 10 Cal.3d 868 (Johnson), the defendant pled guilty in

exchange for a misdemeanor sentence and probation. (Id. at p. 870.) The trial court

subsequently learned that the defendant had concealed his true name and criminal history

during plea negotiations; so, it sentenced him to prison, contrary to the terms of the plea

bargain, without offering him an opportunity to withdraw his plea. (Id. at pp. 870-871.)

The Supreme Court reversed, holding that the provisions of section 1192.5, requiring that

a defendant be given an opportunity to withdraw a plea if the court withdraws its

approval, “makes no exception for defendants who have committed fraud in negotiating a

plea bargain.” (Id. at pp. 872-873.)

       In the instant case, defendant entered a plea agreement that specified he would be

put on probation at a future date. He was brought back for sentencing when he violated a

condition of his release. The court attempted to place him on probation and asked if he

would be willing to abide by the probation conditions. When defendant refused to

directly respond, the court concluded that he did not wish to abide by the conditions. The

court then unilaterally modified the terms of the agreement and sentenced defendant to

two years in county prison. This course of action was improper. A defendant “cannot be

sentenced on the plea to a punishment more severe than that specified in the plea and the

court may not proceed as to the plea other than as specified in the plea.” (§ 1192.5.)

Here, defendant pled no contest in reliance on the court’s promise to grant probation.


                                             8
The fact that defendant later would not agree to abide by the probation conditions did not

provide the court with the option of holding him to his plea and sentencing him to

something other than as specified in the plea agreement. Since defendant refused to

agree to the probation conditions, the court could not effectuate the plea bargain. At that

point, it should have withdrawn its approval of the plea agreement and permitted

defendant to withdraw his plea. (§ 1192.5; Pinon, supra, 35 Cal.App.3d at pp. 124-125

[“If the court is for some reason unable to effectuate the bargain, a defendant must be

given an opportunity to withdraw his guilty plea.”]) We note that if defendant had been

placed on probation at the time he entered his plea, and he subsequently violated

conditions of his probation, the court would have been able to sentence defendant,

notwithstanding the terms of the plea agreement. (People v. Martin (1992) 3 Cal.App.4th

482, 487 [“[W]here a defendant granted probation as part of a plea bargain violates that

probation, subsequent sentencing is not limited by the terms of the original plea.”])

However, defendant was never put on probation.

       The People assert that defendant “obstructed the court’s ability to impose the

terms of the plea agreement” and should not be allowed to benefit from his own conduct.

However, in both Cruz, supra, 44 Cal.3d 1247 and Johnson, supra, 10 Cal.3d 868, it was

the defendants’ conduct that made enforcement of the plea bargains inappropriate.

Nonetheless, the courts in those cases withdrew approval of the bargains, and the

defendants were given the opportunity to withdraw their pleas. (Cruz, at pp. 1249, 1254;

Johnson, at p. 872.)


                                             9
       The People next note that defendant’s formal motion to withdraw his plea was

unsuccessful and argue that he should not be allowed to benefit from his “act of

circumventing the trial court’s proper decision” to deny the motion. The People reason

that, since defendant had already pled no contest, and there were no legal grounds to

withdraw the plea, the court was well within its discretion to find an alternative sentence

for him, outside of the plea agreement. However, the People cite no authority for this

proposition. “‘[E]very brief should contain a legal argument with citation of authorities

on the points made. If none is furnished on a particular point, the court may treat it as

waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley

(1995) 10 Cal.4th 764, 793.) Moreover, defendant’s motion to withdraw his plea alleged

that he entered his plea out of fear that he would be sent to Patton State Hospital for a

psychological evaluation if he did not do so. The court denied the motion, noting that it

had thoroughly questioned defendant and found his plea free and voluntary.

Additionally, the court found that, aside from his own declaration, defendant did not

provide any evidence to support his allegation that his counsel threatened to send him for

a psychological evaluation. Thus, the court denied the motion because defendant failed

to show good cause to withdraw his plea. (§ 1018.) However, permitting a defendant to

withdraw his plea under section 1192.5 is a completely separate issue. As discussed

above, because the court could not effectuate the plea bargain, it should have withdrawn

its approval of the plea agreement and permitted defendant to withdraw his plea.

(§ 1192.5; Pinon, supra, 35 Cal.App.3d 120, 124-125.)


                                             10
       In a similar argument, the People contend that if we allow a defendant who refuses

probation conditions to then withdraw his plea, we would provide “a backdoor to

achieving the goal of having a plea withdrawn.” However, as both parties agree, this was

an unusual situation. Most defendants who bargain for probation want to be placed on

probation. Thus, we do not anticipate this situation occurring often. If it does,

prosecutors could avoid the situation by requiring defendants to be placed on probation

immediately after entering their guilty pleas, or by simply not offering plea agreements

that place defendants on probation.

       The People additionally argue that “policy reasons” support the court’s decision to

sentence defendant on the plea. The People cite People v. Hester (2000) 22 Cal.4th 290,

295 (Hester) to say that “defendants who have received the benefit of their bargain

should not be allowed to trifle with the courts.” The People contend that a defendant

should not be able to refuse to agree to probation conditions, and thereby “force” the trial

court to allow him to withdraw his plea, since that amounts to trifling with the court.

However, Hester is not on point. Defendant here originally pled no contest in return for

being put on probation. Probation is a privilege. (People v. Bravo (1987) 43 Cal.3d 600,

608.) Defendant did not actually receive the benefit of his bargain, since he was never

put on probation. In effect, he obstructed his own benefit of receiving probation by

refusing to agree to the probation conditions. If defendant no longer wanted the privilege

of probation, the court should have permitted him to withdraw his plea. (See ante.)




                                             11
       We now decide the appropriate remedy. “The usual remedies for violation of a

plea bargain are to allow defendant to withdraw the plea and go to trial on the original

charges, or to specifically enforce the plea bargain.” (People v. Mancheno (1982) 32

Cal.3d 855, 860-861.) Thus, we will remand the matter for the trial court to specifically

enforce the plea agreement and place defendant on probation, in accordance with the

agreement. If defendant again refuses to agree to abide by the probation conditions, then

the court will permit him to withdraw his guilty plea and go to trial on the original

charge.

                                          DISPOSITION

       The judgment is reversed. The Superior Court of San Bernardino County is

directed to specifically enforce the plea agreement. If defendant does not agree to abide

by the probation terms, the court is directed to withdraw its approval of the plea

agreement, pursuant to section 1192.5, and permit defendant to withdraw his guilty plea

and go to trial on the original charge.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                          Acting P. J.


We concur:


RICHLI
                           J.


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CODRINGTON
             J.




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