P. v. Foster CA2/6 ( 2013 )

Filed 7/18/13 P. v. Foster CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B243813
(Super. Ct. No. 2012021654)
Plaintiff and Respondent, (Ventura County)
v.
CHAD DAVID FOSTER,
Defendant and Appellant.
Chad David Foster appeals an order revoking and reinstating probation in a
misdemeanor case (case no. 2010001681) after appellant entered into a negotiated plea in
case number 2012021654 to felony possession for sale of more than 14.25 grams of
heroin (Health & Saf. Code, § 11351; Pen. Code, § 1203.07, subd. (a)(1)) and was
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sentenced to felony jail (Pen. Code, § 1170, subd. (h)). Appellant argues, and the
Attorney General agrees, that the plea agreement requires that probation be terminated in
the misdemeanor case (case number 2010001681). We reverse and remand to permit
appellant to withdraw his guilty plea if he so desires. (§ 1192.5; People v. Johnson
(1974) 10 Cal.3d 868, 873.) In the event appellant elects not to withdraw his guilty plea,
the trial court is directed to impose a mandatory $40 court security fee (§ 1465.8, subd.
(a)(1) and a $30 criminal conviction assessment. (Gov. Code, § 70373.)
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All statutory references are to the Penal Code unless otherwise stated.
Procedural History
On June 14, 2012, appellant was charged with possessing drug
paraphernalia, methamphetamine, Suboxone, (Health & Saf. Code §§ 11364.1, subd. (a);
11377, subd. (a)) and possession of more than 14.25 grams of heroin for sale. (§
11352.5(1); Pen. Code, § 1203.07, subd. (a)(1)). Appellant was on misdemeanor
probation in case numbers 2009028498, 2010001681, 2010015450, and 2011005942.
Appellant waived preliminary hearing and entered a plea of guilty to felony
possession for sale of more than 14.25 grams of heroin. The written plea agreement
provided that appellant would receive a two-year split sentence consisting of one year
county jail followed by one year mandatory supervision, and that probation would be
terminated in the four misdemeanor cases.
The trial court accepted the plea and found appellant in violation of
probation in case number 201001681. At the sentencing hearing, the trial court imposed
a felony jail, two-year split sentence (§ 1170, subd. (h)(5)), terminated probation in three
misdemeanor cases (case numbers 2009028498, 2010015450, and 2011005942) and,
over appellant's objection, reinstated probation in the fourth case for driving under the
influence (DUI; case no. 2010001681). The trial court ordered appellant to pay various
fines and fees in the felony possession-for-sale case but failed to impose a mandatory
$40 court security fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment
(Gov. Code, § 70373).
Discussion
Penal Code section 1192.5 provides that where the negotiated plea is
accepted by the prosecutor and approved by the trial court, the defendant may not be
sentenced to a greater punishment than that specified by the plea. If the trial court
withdraws " 'its approval in the light of further consideration of the matter, . . . the
defendant shall be permitted to withdraw his plea if he desires to do so. . . .' [Citation.]"
(People v. Cruz (1988) 44 Cal.3d 1247, 1250.)
Appellant asserts that specific enforcement of the plea bargain is
appropriate even though restitution is outstanding in the DUI case (i.e., case no.
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2010001681). Termination of probation converts the restitution order to a civil judgment.
(See §§ 1202.4, subd. (m); 1214, subd. (b); People v. Chambers (1998) 65 Cal.App.4th
819, 822.) The record, however, indicates that appellant has not satisfied other probation
terms in the DUI case. Thus, the trial court reinstated probation and ordered appellant to
complete all the probation terms "regarding payment of fines and fees and attending of
school . . . ." (RT 17)~
Absent very special circumstances, "a defendant should not be entitled to
enforce an agreement between himself and the prosecutor calling for a particular
disposition against the trial court . . . . The preferred remedy in that context is to permit
[the] defendant to withdraw his plea and to restore the proceedings to the original status
quo. [Citation.]" (People v. Kaanehe (1977) 19 Cal.3d 1, 13-14.)
The judgment is reversed and remanded to permit appellant to withdraw his
guilty plea if he so desires. (§ 1192.5.) In the event appellant elects not to withdraw the
guilty plea, the trial court is directed to impose a $40 court security fee (§ 1465.8, subd.
(a)(1) and a $30 criminal conviction assessment (Gov. Code, § 70373). (See People v.
Woods (2010) 191 Cal.App.4th 269, 272 [imposition of court facility assessment and
court security fees are mandatory].)
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Nancy Ayers, Judge
Superior Court County of Los Angeles
______________________________
California Appellate Project, under appointment by the Court of Appeal,
Jonathan B. Steiner, Executive Director and Richard Lennon, Staff Attorney, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, , Supervising
Deputy Attorney General, Mary Sanchez, David Zarmi, Deputy Attorneys General, for
Plaintiff and Respondent.
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