People v. Mora-Duran

45 Cal.App.5th 589

258 Cal.Rptr.3d 893

The PEOPLE, Plaintiff and Respondent,

v.Fidel MORA-DURAN, Defendant and Appellant.

C085192

Court of Appeal, Third District, California.

Filed February 21, 2020

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Berstein, Supervising Deputy Attorney General, Kevin M. Cornwall and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

Defendant Fidel Mora-Duran waived preliminary hearing and pleaded no contest to felony marijuana cultivation (Former Health & Saf. Code, § 11358, Stats. 2011, ch. 15, § 160).¹ After his plea, but before sentencing, Proposition 64 was passed, which amended section 11358 narrowing the scope of conduct constituting felony marijuana cultivation. Defendant asked the trial court to sentence him and redesignate his conviction as a misdemeanor. The trial court refused, explaining the parties had not agreed to that. The court then rejected the plea agreement and reinstated charges. After the prosecution filed an amended information, defendant pleaded no contest to felony marijuana cultivation under section 11358, subdivision (d)(3)(C), a new provision enacted as part of Proposition 64 requiring proof of additional elements. Thereafter, defendant was placed on probation for two years on the condition that he serve a period in jail that amounted to time served.²

On appeal, defendant contends reversal is required because (1) the trial court abused its discretion in rejecting the plea agreement; (2) charges were added to the amended information after a preliminary hearing was waived in violation of Penal Code section 1009 ; and (3) his sentence violates the prohibition on ex post facto punishment. Defendant’s second contention has merit.

We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was originally charged with three felony counts: conspiracy to commit felony marijuana cultivation ( Pen. Code, § 182 ; § 11358 ; Count 1); felony marijuana cultivation ( § 11358 ; Count 2); and possessing marijuana for sale (§ 11359; Count 3). He waived preliminary hearing and thereafter pleaded no contest to Count 2, felony marijuana cultivation. In exchange for his plea, the parties agreed that defendant would receive probation and the remaining counts would be dismissed. During the plea, the parties stipulated that defendant was seen assisting in the cultivation of approximately 3,000 marijuana plants.

After the plea, but before sentencing, Proposition 64, "the Control, Regulate and Tax Adult Use of Marijuana Act," was passed and went into effect. Among other things, the electorate amended section 11358 to narrow the scope of conduct constituting felony marijuana cultivation. It still punished marijuana cultivation, but a felony conviction would now require additional elements, such as an accompanying violation of certain environmental protection laws. It also enabled those serving sentences for marijuana convictions that are no longer offenses or lesser offenses after Proposition 64, to petition to recall or dismiss the sentence. (§ 11361.8, subd. (a).)

Before sentencing, defendant filed a petition to have his offense re-designated as a misdemeanor, specifically asking that the court sentence him and then reduce the conviction to a misdemeanor. At the hearing, the trial court refused explaining, "in order to reduce I have to accept the plea agreement and sentence them.^[3 ] And I am not prepared to accept the plea agreement, so I’m going to reject the plea agreement. We’re going to do what we need to do, starting all over again." The court added, "So I think the one thing that this Court has to look at is, am I going to accept or reject the plea agreement. [¶] And that’s the position that I’m going to take, is that I have to reject the plea agreement because that’s not what the parties agreed to do ." (Italics added.)

Defense counsel objected, noting, "If you reject the plea, I don’t think that the District Attorney could charge ... the new crime of cultivation of marijuana, felony. Because that crime did not exist at all prior to ... the date of commission of this crime ...." Counsel further argued there was no reason to reject the plea and asked the court to accept the plea to the felony, redesignate it as a misdemeanor and give defendant probation. When counsel asked the court to state what case it was relying on, the court stated that "nothing is quite on point.... But since they have not been sentenced , what I’m relying on is that I either reject or accept the pleas. And so I’m choosing to reject the pleas." (Italics added.) The court then reinstated the information.⁴

Thereafter, the prosecution filed an amended information, modifying the second count to allege felony marijuana cultivation under the new subdivision (d)(3)(C) of section 11358.⁵ That new subdivision pertains to marijuana cultivation that results in a violation of Fish and Game Code Sections 5650 or 5652, both of which relate to contaminating state waters.

Defendant later moved to set aside the amended information under Penal Code section 995, arguing that having waived a preliminary hearing, the prosecution could not add charges encompassing new "significant additional elements." He also argued the new charge violated the federal Constitution’s ex post facto clause.

The prosecution responded that defendant had not been charged with a new section of the Health and Safety Code. The amendment simply specified the conduct that continued to make the cultivation a felony. And the charge did not violate the ex post facto clause because defendant’s conduct had always constituted a felony, and he was not subject to greater punishment than before.

The trial court agreed with the prosecution, stating, "[t]he People have not added any charges or changed the basic charges. The only difference is that the People have now included the sections that contain the description of conduct that continues to make the Defendant’s alleged actions felonious." The court noted that Proposition 64 had essentially made the crime harder for the prosecution to prove. Thereafter, over defense counsel’s objection, the court deemed the first amended information a complaint and set the matter for preliminary hearing.⁶

Before the preliminary hearing, defendant pleaded no contest to the new felony marijuana cultivation charge ( § 11358, subd. (d)(3)(C) ; Count 2). In exchange, the remaining counts were dismissed, he was placed on two years’ probation, and ordered to serve 97 days in jail, which was satisfied by presentence custody credit. Defense counsel expressed that as part of the plea, defendant was explicitly not waiving his appellate rights.

The parties stipulated to a factual basis that from May to August 2016, Department of Fish and Wildlife wardens observed an illegal marijuana grow on Liberty Island in Yolo County. Defendant was seen parking his vehicle at the same spot and on multiple occasions providing water, gas, and other objects to individuals. Defendant also took several large plastic bags from individuals, put them in his vehicle, and drove off. Two growing fields with a total of more than 3,000 marijuana plants were found. Additionally, in excess of one ton of trash and debris was found at the grow site, some of which was taken out by California Highway Patrol Helicopter. However, because of the remote location, wardens were unable to remove several hundred pounds of trash, which constituted the environmental damage.

DISCUSSION

I. The Trial Court’s Refusal to Accept the Plea Bargain

A. Defendant’s Contentions

Defendant first contends the trial court abused its discretion in failing to honor the original plea bargain. He argues the court’s stated reason for rejecting the plea — " ‘[that’s] not what the parties agreed to do’ " — was an unlawful basis because the court failed to state that the negotiated plea was unfair or contrary to the public interest. He adds that changes in the law are incorporated into plea agreements, citing in support Harris v. Superior Court (2016) 1 Cal.5th 984, 990, 209 Cal.Rptr.3d 584, 383 P.3d 648 ( Harris ). Hence, the negotiated agreement includes the changes in the law brought about by Proposition 64. He further argues that in rejecting the plea, the trial court supplanted the electorate’s intent to reduce section 11358 penalties. We disagree.

B. The Trial Court’s Authority to Reject a Plea Agreement

" ‘ "[J]udicial approval is an essential condition precedent to any plea bargain ...." ’ " ( In re Alvernaz (1992) 2 Cal.4th 924, 941, 8 Cal.Rptr.2d 713, 830 P.2d 747 ( Alvernaz ).) Before sentencing, a trial court has " ‘broad discretion to withdraw its prior approval of a negotiated plea.’ " ( People v. Silva (2016) 247 Cal.App.4th 578, 588, 202 Cal.Rptr.3d 551 ( Silva ).) The trial court’s authority to withdraw approval or otherwise reject a plea bargain under section 1192.5 is " ‘near-plenary.’ " ( People v. Kim (2011) 193 Cal.App.4th 1355, 1361, 122 Cal.Rptr.3d 832 ( Kim ), quoting People v. Stringham (1988) 206 Cal.App.3d 184, 195, 253 Cal.Rptr. 484 ( Stringham ).)⁷

Generally, a trial court may exercise its discretion to withdraw approval of a plea bargain because: (1) it believes the agreement is "unfair" ( People v. Loya (2016) 1 Cal.App.5th 932, 947, 205 Cal.Rptr.3d 231 ( Loya )); (2) new facts have come to light; (3) the court has become more fully informed about the case; or (4) when, after further consideration, the court concludes that the agreement is "not in the best interests of society." ( Silva, supra , 247 Cal.App.4th at p. 588, 202 Cal.Rptr.3d 551.) But this list is not exhaustive. A trial court may, for example, reject a plea bargain when the victim’s family protests the agreement. (See Stringham, supra , 206 Cal.App.3d at p. 188, 253 Cal.Rptr. 484.)

No cour...