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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

BRIAN KEITH SON,

Defendant and Appellant.

C080110

(Super. Ct. No. NCR92949, 

NCR93064, NCR93596)

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
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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. 
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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, 
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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 
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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. 
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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 
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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 
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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.