Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRBF052202
BLEASE, J.
Defendant Jeffrey Stuart Lawhorn appeals from the judgment after he entered a guilty plea to possession of methamphetamine for sale (Health & Saf. Code, § 11378; Ct. 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); Ct. 2) and admitted the crystalline methamphetamine special allegation (Pen. Code, § 1170.74) as to count two and two prior strike convictions. (§§ 667, subds. (c)-(e), 1170.12.) In accordance with its indicated sentence, the trial court imposed an eight-year prison term.
All further section references are to the Penal Code unless otherwise specified.
Defendant’s sole contention on appeal is that the trial court erred in denying his motion to withdraw his guilty plea after it breached his plea agreement by failing to release him from custody prior to the imposition of sentence.
We find no error because the term of release from custody was not a significant term in a negotiated plea agreement. We shall therefore affirm the judgment.
FACTUAL BACKGROUND
According to the probation report, on November 21, 2005, Tom Taylor telephoned the Siskiyou County-Wide Interagency Narcotics Task Force and reported that defendant and his girlfriend left suspected methamphetamine in his home. Law enforcement officers went to Taylor’s residence and seized a Ziploc baggie holding five smaller baggies, each containing a white powdery substance that tested positive for methamphetamine with a gross weight of 3.76 grams.
DISCUSSION
Defendant contends the trial court breached the plea agreement and therefore erred by denying his motion to withdraw his guilty plea. He argues that he entered a negotiated plea, which included a term that required his release from custody prior to sentencing and since he was never released, he is entitled to withdraw his plea. Respondent counters that this claim is without merit because defendant did not enter a negotiated plea and the record fails to support his assertion that release pending sentencing was a condition of any possible plea agreement.
We find the trial court properly denied defendant’s motion to withdraw his plea.
A. Background
Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378; Ct. 1) and transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a); Ct. 2.) It was further alleged that he suffered two prior strike convictions (§§ 667, subds. (e), 1170.12, subd. (c)) and the methamphetamine was in crystalline form (§ 1170.74) as to count two. Three factors in aggravation were also alleged.
At a hearing on an unrelated motion heard on January 16, 2007, the trial court advised defendant that if he went to trial, he faced a potential maximum prison term of 50 years to life. Noting that the prosecution was not offering anything less than a life sentence, the court indicated that in its view, the case should be resolved with “a definite prison sentence” rather than an indefinite life term.
Having been charged with two felonies and two prior strike convictions, defendant was subject to a three strikes sentence of 25-to-life on each count, which could be imposed consecutively. (§§ 669, 1170.12, subd. (c)(2)(A).)
On March 27, 2007, the court advised defendant it would sentence him to no more than eight years in state prison if he pled guilty to both counts and admitted the two prior convictions. The court also advised defendant he would be allowed to withdraw his plea if the probation report disclosed additional information making the indicated sentence inappropriate. The court made it clear the prosecution was not stipulating to this sentence and then asked defense counsel whether it had left anything out. Counsel responded “[t]hat was exactly it, your honor.”
Later that same day, defendant submitted a change of plea form to the court admitting his guilt on counts one and two and the truth of the prior convictions. The form was signed by defendant and defense counsel only. At the hearing on the change of plea, defendant told the court he would not enter the guilty plea unless the prosecutor agreed to a “package deal” in which his sentences in two other pending cases ran concurrently to the sentence in this case. After the prosecutor agreed that defendant would not serve any additional time in those two cases, the court advised defendant of his constitutional rights and asked him if he had been promised anything to secure entry of his plea. Defendant answered, “[n]one other than there would be an eight-year lid,” and the court took his plea.
On June 8, 2007, appearing in propria persona, defendant filed a motion to withdraw his guilty plea, arguing inter alia that his Cruz waiver had not been honored. The court denied the motion stating it had reviewed the transcript and looked at the plea form, noting “there is a check mark on that Cruz waiver block,” but there is “no reference in any of the transcript proceedings that a Cruz waiver was a condition. [¶] And, further, in the court’s view, even if it were a condition, it is not the kind of a condition that would rise to the level of being such a significant consequence as to provide a basis to withdraw the plea.”
People v. Cruz (1988) 44 Cal.3d 1247.
The Cruz waiver initialed by defendant states in pertinent part, “I am currently incarcerated in the Siskiyou County Jail. As a condition of my plea made in Court today, the Court agrees to release me from the custody of the Siskiyou County Jail on my ‘own recognizance,’ conditioned on my agreement to obey the terms of my release which are listed below in (a)-(d), inclusive. I understand that if I violate any condition of my ‘own recognizance’ release, the Court may sentence me to the maximum possible term of imprisonment . . . and I will NOT be permitted to withdraw my plea. . . .”
B. Analysis
In People v. Cruz, supra, 44 Cal.3d 1247, the Supreme Court held that a defendant who fails to appear for sentencing under a negotiated plea does not lose the protections of section 1192.5, and must be allowed to withdraw his or her guilty plea should the court refuse to adhere to the original sentencing terms. (Id. at p. 1249.) The court indicated however, that if the defendant expressly waives his or her right to withdraw the plea and “willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term.” (Id. at p. 1254, fn. 5.)
Section 1192.5 sets forth the formal procedures for taking a negotiated plea of guilty or nolo contendere. (People v. Hoffard (1995) 10 Cal.4th 1170, 1181.) It provides in pertinent part that “[w]here 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.” (Italics added.)
A negotiated plea, also commonly referred to as a plea bargain, is a tripartite agreement negotiated by the People and the defendant and approved by the court. (People v. Orin (1975) 13 Cal.3d 937, 942.) In this procedure, “the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People's acceptance of a plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or kind [citation] or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information. . . . [I]mplicit in all of this is a process of ‘bargaining’ between the adverse parties to the case -- the People represented by the prosecutor on one side, the defendant represented by his counsel on the other -- which bargaining results in an agreement between them.” (People v. Orin, supra, 13 Cal.3d at pp. 942-943.)
A plea bargain is interpreted in accordance with the rules of contract (People v. Toscano (2004) 124 Cal.App.4th 340, 344) and both parties must abide by the terms of the agreement. (People v. Walker (1991) 54 Cal.3d 1013, 1024; § 1192.5.) Under the due process clause, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433].) If the agreement is breached, the defendant is entitled to some remedy, which generally involves allowing the defendant to withdraw his or her plea. (§ 1192.5; People v. Walker, supra, 54 Cal.3d at pp. 1025-1027; People v. Calloway (1981) 29 Cal.3d 666, 673; People v. Johnson (1974) 10 Cal.3d 868, 871.)
However, deviation from the plea agreement does not constitute a constitutional violation entitling the defendant to withdraw his plea unless the deviation is significant in the context of the plea bargain as a whole. (People v. Walker, supra, 54 Cal.3d at p. 1024.) “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.” (Ibid.)
By contrast, when the defendant admits all charges, including the special allegations, no “bargaining” is involved between the defense and the prosecution and no enforceable “agreement” is reached. (People v. Vessell (1995) 36 Cal.App.4th 285, 296.) The trial court may give an “‘indicated sentence’” because it “fall[s] within the boundaries of the court's inherent sentencing powers and, in contrast to plea bargains, prosecutorial consent is not required.” (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271.)
Respondent argues that defendant did not enter a negotiated plea. It is true that he admitted all charges and special allegations filed in this case, the prosecutor did not stipulate or agree to the sentence in this case, and her signature does not appear in the designated space on his change of plea form. However, at the hearing on the plea, defendant refused to enter a plea unless the prosecutor agreed to a “package deal” that he would not serve any additional time in two other cases. It was not until he received her assurance that the sentences in those two cases would run concurrently to the instant sentence that he entered his plea.
However, we need not determine whether this exchange transformed the plea in this case into a negotiated plea. This is because to the extent the plea was the product of a negotiated agreement between the prosecutor and himself, that bargain related only to the sentences in the other two cases and did not include release from custody prior to sentencing. Indeed, the prosecutor had no authority to grant defendant OR release as that authority belongs solely to the court or a magistrate. (§ 1270, subd. (a).)
That condition only appeared on the plea form and only applied to the court: “As a condition of my plea made in Court today, the Court agrees to release me from the custody of the Siskiyou County Jail on my ‘own recognizance [OR],’ . . . .” (Italics added.)
Moreover, as stated, a defendant is not entitled to withdraw his plea unless he can show the unfulfilled term was a “part of the inducement or consideration” for the bargain. (Santobello v. New York, supra, 404 U.S. at p. 262 [30 L.Ed.2d at p. 433].) Here, there is nothing on the record or in logic to suggest OR release was part of the consideration for defendant’s plea. It was not a part of the discussion during the oral proceedings on the plea and neither defendant nor counsel raised the issue when given the opportunity. Defendant was facing a potential prison term of 50 years to life, yet the trial court had indicated its intention to impose an eight-year prison term. At the hearing for entry of his plea, defendant’s sole stated condition for his plea was the prosecutor’s assurance he would not have to spend more than eight years in prison for all three cases. We therefore find, to the extent defendant entered a negotiated plea, the term promising OR release pending sentencing was not a significant term and therefore failure to comply with that term does not entitle defendant to withdraw his plea.
Defendant’s reliance on People v. Calloway, supra, 29 Cal.3d at page 670 and People v. Johnson, supra, 10 Cal.3d 868, is therefore misplaced, because unlike the present case, these two cases involved breach of a significant term of a negotiated plea agreement.
Accordingly, we conclude the trial court did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea.
DISPOSITION
The judgment of conviction is affirmed.
We concur: SCOTLAND, P. J., MORRISON, J.