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Filed 10/4/16 P. v. S on CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ple d 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 o n bail o r 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 th e terms of his plea agreement by sentencing him to prison instead of suspend ing his sentence and placing2

him on probation. We conclude the trial court erred , and therefore we reverse and
remand the matter

. BACKGROUND In June 2015, d efendant entered into a written agreement to plead guilty to three felony ch arges 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 c ourt ( drug c ourt ) 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 c ourt progr am

. I f he was accepted into the drug c ourt program , the
nine

- year four

- month

- sentence would be suspended and defendant would be placed on probation

. 1 A fter confirming with the parties that this was the agreement and before accepting defendant’s guil ty pleas, the trial court asked defendan t 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 t he prosecutor nor defense counsel
confirm ed this was an element of the parties’ agreement. 2
Prior to the sentencing hearing , a drug court a ssessment was filed , indicating
defen dant 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, S uspended.”

2 At the plea hearing, t he 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.3

defendant appeared to be suitable and eligible f or 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 ja il, and placed into the AFDC program pursuant to the terms of the stipulated plea agreem ent. At the initial sentencing hearing, the trial court determined
defendant was no t suitable for probation and the drug c ourt program b ased on his prior
record and th e 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

w as entitled to a suspended sentence because he was admitted into the drug c ourt program, stating defendant was mistaken there was a stipulation to drug court and probation

. Following the initial sentencing hearing, defendant filed a moti on to withdraw h is guilty pleas, arguing h e was promised probation and placement in the drug c ourt program if he was accepted into th e program. T he trial court denied defendant’s moti on, finding
he did not have good cause to withdraw his guilty plea s 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 suspend ing his sentence and placing him on probation. “[T]he process of plea negotiation ‘contempla tes 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,4

generally consisting of a less severe punishment than that which could result if he were

conv icted 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 pr omise 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
ef fect is determined by objectiv e 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 th e contract; the object, nature and subject matter of the contract; and the subse quent 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 inhere nt 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 conse nts 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 ju risdiction 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 a nd5

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 mak e s a unilateral modification in the sentence agreed upon a t 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 ‘p unishment 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 (19 7 7 ) 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 c ourt program

. The court further
stated if defendant was accepted into the drug c ourt program, the plea agreement provided the nine

- year four

- month sentence would b e suspended. The trial court inquired of the parties whether the court’s statement s were an accurate recitation of the agreement, and the parties responded affirmatively. The trial court later inquired of defendant

w hether he understood that whether he “got” drug court was solely up to the sentencing judge, and he responded affirmatively. However, n othing in the record indica tes this was an element of the parties’ plea negotiations and resulting written agreement.6

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 c ourt program. The written plea agreement does not contemplate

suc h an outcome. T he plea agreement indicates the parties agr eed to a stipulated

sentence of either prison or probation , depending on whether defendant was accepted into
the drug c ourt program

. D ef endant did not initial the box i n 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, d efense co unsel
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

c ourt ].” 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 c ourt] , the nine [years] , four [months] is suspended; if he is not, it is nine [years] , four [months] and state prison.”
B oth parties responded in the affirm ative. 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 i t was their mutual in tent for the court to exercise its sentencing discretion regarding defendant’s suitability for probation in the event defendant was accepted into the drug

c ourt 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 , t he prosecutor did not argue the parties had expressly a greed the trial
court would retain discretion to s entence defendant to p rison if he was accepted into the drug c ourt program

. At the initial sentencing hearing , the prosecutor ( who was not the

same prosecutor who appeared at the plea hearing an d signed the plea agreement ) , was silent on this issue. He did not argue the trial court’s sentencing di scr etion was an7

agreed

- upon term of the agreement

. Instead, he argued a prison term was appropriate
because drug c ourt is a “pretty light penalty” given defendant’s conduct. I n 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 c ourt] 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 w as a bargained

- for term of the agreement

. Neither the written plea agreement nor t he record from the plea hearing clearly disclo se s the parties contemplated sentencing proceedings in which the appropriate sentencing choice would stem from the exercise of sentencing discretion by the trial court. Rather, t he record reflects , as defendant argued at sentencing, the parties entered into a stipulated plea, which required
the trial co urt to suspend the agreed

- upon sentence of nine years four months , grant probation, and place defendant in the drug c ourt 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 rega rding its discretion to place defendant in the drug c ourt program, the ambiguity must be resolved in favor of defendant , because the proper focus is on what
induc ed defendant to plead guilty. ( I n re Timothy N. (2013) 216 Cal.App.4th 725, 734. )
Here , beca use 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 partie s expressly consented to the mod ification. 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 l ater withdraw its approval and deviate from the agreed

- upon terms so8

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, t he trial court shall approve the agreed

- upon stipulated sentence or offer the defendant an opportunity to withdraw his guilty plea s . If defendant chooses to withdraw his plea s , the matter shall proceed as if no plea s had been entered. If defendant declines the opportunity to withdraw his plea s , the cou rt may impose the same sentence it previously imposed.

/s/ Robie, J.

We concur:

/s/ Raye, P. J.

/s/ Mauro, J.