People v. Alexander , 2015 Cal. App. LEXIS 37 ( 2015 )

1/16/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B256482
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. YA088935)
v.
RICKEY LANE ALEXANDER, II,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie
Brown, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B.
Lennon, Staff Attorney, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb,
Supervising Deputy Attorney General, and Nathan Guttman, Deputy Attorney General,
for Plaintiff and Respondent.
_____________________________
Defendant and appellant Rickey Lane Alexander, II, appeals from his conviction
for possession of a controlled substance (Health & Saf. Code, § 11350)1 following his
plea of no contest.
Defendant contends that the 16 month county jail sentence ultimately imposed by
the trial court is illegal because his punishment was in excess of the plea agreement.
Defendant requests that we reverse the judgment and order him “returned to the status
quo ante prior to the sentencing, and if the court cannot fashion a sentence that meets
[defendant’s] approval, to allow [defendant] to withdraw from the plea.”
We affirm the judgment.
PROCEDURAL HISTORY2
A felony complaint charged defendant with possession of methamphetamine for
sale (§ 11378 [count 1]), and possession of oxycodone for sale (§ 11351 [count 2]). He
pled not guilty on both counts.
Defendant’s case was transferred to drug court for evaluation. The possession for
sale charges disqualified defendant from drug court, so the case was transferred back to
trial court.
Once returned to the trial court, defendant entered into a plea agreement, in which
he agreed to plead no contest to a violation of section 11350, subdivision (a).3 In return
for the plea, defendant would be referred to drug court, and the possession for sale
1 All
further statutory references are to the Health and Safety Code, unless
otherwise specified.
2 The facts of the case are not relevant to the appeal, so we do not recount them
here.
complaint was amended on the prosecution’s motion to include a charge of
3 The
possession of a controlled substance (§ 11350, subd. (a)) in count 3.
2
charges would be dismissed. In the written waiver of rights form signed by defendant, he
was advised that the offense carried a maximum term of three years in custody.
The trial court explained the court’s understanding that defendant would enter a no
contest plea to possession of a controlled substance and the case would be referred to
drug court. Defendant agreed to the terms of the plea agreement and confirmed that no
other promises had been made to him. He was advised of his rights. The prosecutor
stated, “Okay, you’re going to be considered for drug court. Assuming you get into drug
court -- and it will be a minimum nine months, but more likely a year, and it would be
either live-in or outpatient -- if you’re successful in completing it, then your case here
you’re pleading to will be dismissed.” Defendant confirmed that he had initialed the
written plea waiver form with his attorney, and that he understood everything it included.
Defendant pled no contest to possession of a controlled substance, and the court accepted
the plea. The court stated, “Mr. Alexander, you have a right to be sentenced by the judge
who accepted your plea, which would be me, but we’re sending your case over to drug
court and you would be sentenced by another judge. [¶] Do you agree to have another
judge sentence you in this matter?” Defendant responded, “Yes.”
Defendant appeared in drug court on March 13, 2014. He informed the court that
he was on probation in another case, the probation case was pending on appeal, he had
been advised by counsel in the probation case that his appeal in that case might be
compromised by drug court, and that he did not wish to proceed in drug court.
Defendant’s counsel in this case was unaware of defendant’s intention not to proceed in
drug court and asked to speak with defendant, which the court permitted. After
consulting with counsel, defendant again stated on the record that he rejected drug court,
so the case was again transferred back to the trial court.
On April 4, 2014, defendant appeared for sentencing in the trial court. Defense
counsel and the prosecutor represented to the court that both the instant case and the
probation case had been sent to drug court. At drug court, the prosecutor had offered to
allow defendant to withdraw his plea on the probation case and have that case dismissed,
which would remove the issue of the appeal entirely. Defendant refused the offer to have
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the probation case dismissed. Defendant explained to the trial court that he had refused
drug court because there had been a mistake in the paperwork “in [his] favor,” and that,
contrary to what his attorney and the district attorney represented, the probation case had
not been sent to drug court. Defendant concluded, “So since they both didn’t go over
there, I don’t even know why I’m still in custody because the deal I signed to, it’s no
more jail time.” The court responded, “So what is it you’re trying to accomplish here? I
don’t understand. What are you trying to do? What is your ultimate goal here? [¶] You
have a plea. We’re here to sentence you. You’ve already entered the plea. I don’t know
what it is you’re trying to have happen here.” Defendant responded, “Me and my
probation case alone, I’ll take some programs, six months. I’m in custody 19 weeks.”
The court concluded defendant was “just trying to negotiate.” The case was placed on
second call to allow defendant to speak with his attorney.
On second call, defense counsel stated that he had discussed defendant’s options
with him, and that defendant conveyed a counteroffer to the district attorney. The district
attorney refused, and withdrew the offer he had made to dismiss the probation case.
Counsel explained to defendant that the only remaining option was the court’s indicated
sentence, which defendant also rejected. Defense counsel then indicated to the court that
defendant was ready for sentencing. The court confirmed with the district attorney that
the original sentence was to be the low term of 16 months in county jail. The court’s
indicated sentence was the high term suspended, with five years probation, and a one-
year residential drug treatment program. The court gave defendant the opportunity to
choose between the two sentences. Defendant refused to choose either sentence, and
instead asked if he could withdraw his plea. The court answered that he could not. The
court concluded that defendant did not wish to cooperate, and sentenced him to the low
term of 16 months in county jail.
Defendant timely appealed.
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DISCUSSION
Defendant contends the sentence imposed was illegal because it violated the terms
of the plea bargain. We disagree, because “[w]hen a defendant enters a plea in exchange
for specified benefits, such as dismissal of other counts or a particular punishment, both
the defendant and the state must abide by the bargain . . . .” (People v. Lopez (1998) 66
Cal. App. 4th 615, 635.) The state, acting through the trial court and prosecution, was
willing to abide by the agreement that defendant receive the benefit of a reduction in
charged offenses and drug court. It was defendant, and defendant alone, who did not
abide by his case settlement agreement in this case. The only reason defendant did not
receive the disposition bargained for is his own refusal to cooperate.
“Defendant is correct that the superior court, when it accepted defendant’s plea of
no contest, failed to advise her as required by [Penal Code] section 1192.5 of her right to
withdraw her plea in the event the court subsequently disapproved the plea agreement.
But this error was of no consequence, because the superior court did not disapprove the
plea agreement.” (People v. Masloski (2001) 25 Cal. 4th 1212, 1223.) Defendant’s
waiver of rights and plea form clearly stated that the maximum punishment for the
offense was three years, but under the agreement, defendant would be referred to drug
court. Defendant was referred to drug court, in compliance with the plea agreement.
Once the agreement was repudiated by defendant, all that remained to do was impose
sentence on his plea in accord with the statutory punishment.4 A defendant gets the
benefit of a plea bargain once, and once spent, it is gone forever. (People v. Horson
(1993) 13 Cal. App. 4th 1, 3.)
Although defendant did not warrant favorable treatment once his case was
returned to the court that accepted his guilty plea, once again the court and prosecutor
4 Defendant’s reliance on People v. Cruz (1988) 44 Cal. 3d 1247 is misplaced.
Cruz had not breached the plea agreement in that case, and the court imposed a sentence
in excess of the plea agreement on the basis of a separately chargeable crime that had not
been tried. That is not the case here.
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attempted to provide defendant with a favorable disposition. The prosecutor agreed to
dismiss the probation case, which seemed to be the source of defendant’s recalcitrance,
but defendant rejected the offer. Defendant tried to negotiate further with the
prosecution, but the prosecutor reasonably refused and withdrew the offer to dismiss the
probation case. As in drug court, all responsibility for defendant’s failure to obtain a
satisfactory resolution is attributable only to defendant.
The trial court at this point offered defendant two alternatives—a probationary
sentence, with state prison suspended, or the prosecution’s recommendation of 16 months
in county jail. Defendant asked to withdraw his no contest plea, which the court denied.
When defendant refused to tell the court which sentencing alternative he preferred, the
court imposed the sentence of 16 months in county jail.
There is no merit to defendant’s contention that the sentencing court erred in
denying his request to withdraw his plea. “A defendant may move the trial court to set
aside a guilty plea for good cause at any time before the entry of judgment. (Pen. Code, §
1018.) ‘Good cause’ means mistake, ignorance, fraud, duress or any other factor that
overcomes the exercise of free judgment and must be shown by clear and convincing
evidence. (People v. Cruz (1974) 12 Cal. 3d 562, 566.) The grant or denial of such a
withdrawal motion is ‘within the sound discretion of the trial court and must be upheld
unless an abuse thereof is clearly demonstrated.’ (People v. Superior Court (Giron)
(1974) 11 Cal. 3d 793, 796.)” (People v. Ravaux (2006) 142 Cal. App. 4th 914, 917.)
Here there was no good cause to withdraw defendant’s plea. Defendant had
entered into a plea agreement sending his case to drug court, where the disposition fell
apart only due to defendant’s refusal to cooperate. A defendant’s manipulative conduct
does not constitute good cause to withdraw a plea. The suggestion that defendant is
entitled to withdraw his plea unless the trial court is able to “fashion a sentence that meets
[defendant’s] approval,” is absurd. The purpose of a trial court is not to satisfy the whims
of parties who refuse to comply with the very bargains they accept.
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DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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