People v. Kagoshima

THE PEOPLE, Plaintiff and Respondent, v. JENNIFER ROSE KAGOSHIMA Defendant and Appellant.

A131428

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Filed: March 7, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. FCR277911)

Following defendant's entry of a no contest plea to a charge of receiving stolen property (Pen. Code, § 496, subd. (a)),¹ the trial court placed her on formal probation for three years, on the condition that she serve 140 days in county jail, and imposed a restitution fine, along with a court security fee and a criminal assessment fee. In this appeal defendant claims that the 140-day county jail term resulted in imprisonment that exceeded the promised 90-day maximum sentence, and thereby contravened the terms of her plea agreement. She seeks "a chance to withdraw her plea," or "specific performance" of the plea bargain through a reduction of her three-year probation period, and elimination of the restitution fine, the security fee, and the criminal assessment fee. We conclude that the imposition of a 140-day county jail term did not constitute a significant variance from the plea agreement. We further conclude that defendant's restitution fine must be stricken by application of sentence credits for her excess timeserved, but she is not entitled to any credits against her probation period or the fees imposed on her. We therefore modify the judgment to strike the restitution fee, but otherwise affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

At a change of plea hearing on January 28, 2011, defendant entered a negotiated no contest plea to a charge of receiving stolen property, in exchange for dismissal of three other felony charges, and the promise of "a 90 day lid" on a county jail term. Sentencing was scheduled for February 25, 2011. As of the date of defendant's change of plea, she had served 42 days in custody and had 42 days of presentence credits.

When defendant appeared for sentencing on February 25, 2011, her total of custody and conduct credits was 140 days (Pen. Code, § 4019). Imposition of sentence was suspended and defendant was placed on formal probation for a period of three years upon the condition, among others, that she "serve 140 days in county jail," with credit for that amount of time already served. The court declined defense counsel's request to credit the balance of "50 days" beyond the 90-day maximum term stated in the plea agreement to "any fines and fees that would be imposed" by the court. A restitution fund fine of $200 (Pen. Code, § 1202.4, subd. (m)) was imposed as a condition of defendant's probation, along with restitution to the victim. The court also imposed a $40 court security fee (Pen. Code, § 1465.8) and a criminal conviction assessment fee of $30 (Gov. Code, § 70373), both contingent on defendant's ability to pay.

DISCUSSION

Defendant argues that the trial court violated the terms of the plea agreement. The court ordered defendant to serve "140 days in county jail," which exceeded the specified 90-day maximum sentence. Defendant asserts that the court's change in the "terms of the plea agreement" without offering her an opportunity "to withdraw her plea," was reversible error. She also objects to the trial court's refusal to apply the days of custody she served and sentence credits she earned in excess of the "agreed sentence" to "reduce the amount of fines" imposed upon her. Finally, defendant maintains that because she served "more time than can be offset" by a reduction in her fines and fees, her period ofprobation must be shortened by the remaining excess custody and credits. Defendant asks that we "specifically enforce the plea bargain" to "reduce the sentence," strike the fines and fees, and reduce her three-year probationary period by 32 days.

I. Defendant's Failure to Object to the Sentence.

We first confront the Attorney General's claim that defendant's acceptance of a grant of probation with a county jail condition of the time already served "binds her" to the sentence imposed by the trial court. Defendant neither objected to the 140-day sentence nor moved to withdraw her plea on the ground that her punishment exceeded the plea agreement. Despite the lack of an objection by the defense, however, we find no waiver or forfeiture under the facts presented in the case before us.

"Pursuant to Penal Code section 1192.5, a defendant must be informed by the trial court prior to the negotiated plea of guilty or no contest that the trial court's approval of the plea bargain is not binding and may be withdrawn. The defendant must also be advised that if approval of the bargain is withdrawn, the defendant has the right to withdraw the plea of guilty or no contest. [Citation.] If a defendant, who has been admonished concerning the right to withdraw the plea, does not object to punishment in excess of the bargain, the defendant relinquishes the right to withdraw the plea. [Citation.] If a defendant has not been properly admonished, a failure to object to increased punishment does not waive the defendant's right to the benefit of the bargain." (In re Jermaine B. (1999) 69 Cal.App.4th 634, 640, citing People v. Walker (1991) 54 Cal.3d 1013, 1024-1025.)

Here, the trial court neglected to admonish defendant as required by section 1192.5 of her right to withdraw the plea if a sentence greater than that agreed to in the plea agreement was imposed. "Absent compliance with the section 1192.5 procedure, the defendant's constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing." (People v. Walker, supra, 54 Cal.3d 1013, 1025; see also People v. Crandell (2007) 40 Cal.4th 1301, 1308; People v. Collins (2003) 111 Cal.App.4th 726, 730-731; People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879.) Nor did defendant expressly agree to a sentence in excess of the 90-day maximum articulatedin the plea agreement. (Cf. People v. Martin (2010) 51 Cal.4th 75, 82.) Defense counsel specifically requested a reduction in the fines or period of parole by the "50 days additional" time in custody served by defendant. We find no waiver or forfeiture of defendant's challenge to the sentence.

II. The Imposition of Additional Jail Time.

Proceeding to the substance of the contention that the sentence violated the terms of the plea bargain, the Attorney General concedes that the promised "90-day jail lid" was exceeded by the 140-day sentence, but argues that the deviation from the agreement was not material and does not render the plea invalid.

"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 . . . .' " (People v. Masloski (2001) 25 Cal.4th 1212, 1217.) "In addition to their contractual qualities, plea agreements also have a constitutional dimension. A criminal defendant's constitutional due process right is implicated by the failure to implement a plea bargain according to its terms." (People v. Knox (2004) 123 Cal.App.4th 1453, 1459.) " '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.' [Citation.] It is well settled that a disposition harsher than that agreed to by the court or the prosecution may not be imposed on a defendant." (In re Jermaine B., supra, 69 Cal.App.4th 634, 639.) A trial court may not accept a proffered plea bargain, then attach a new provision or condition to the final bargain without the defendant's consent. (People v. Jensen (1992) 4 Cal.App.4th 978, 981; People v. Morris (1979) 97 Cal.App.3d 358, 363.) "Failure of the state to honor the agreement violates the defendant's due process rights for which the defendant is entitled to some remedy." (People v. Lopez (1998) 66 Cal.App.4th 615, 636; see also People v. Campbell (1994) 21 Cal.App.4th 825, 829.)A defendant has the "established right to withdraw his or her guilty plea if the plea bargain is not honored . . . ." (People v. Casillas (1997) 60 Cal.App.4th 445, 450.) When the trial court errs by imposing punishment that significantly exceeds that which the parties have agreed upon, "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' [citation]." (People v. Kim (2011) 193 Cal.App.4th 1355, 1362.)

" 'This does not mean that any deviation from the terms of the agreement is constitutionally impermissible. . . .' [Citation.]" (People v. Collins, supra, 111 Cal.App.4th 726, 731.) "[T]he imposition of an additional sentence term does not constitute a violation of a plea agreement if the term was not encompassed by the parties' plea negotiations. [Citations.] Moreover, 'the 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.' [Citation.]" (People v. Lopez, supra, 66 Cal.App.4th 615, 636.) Statutory and due process concerns are not "offended by minor...