Filed 5/10/17 P. v. Sharif CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ABDUQADIR M. SHARIF,

Defendant and Appellant.
D070269



(Super. Ct. Nos. SCN347692, SCN338274)

APPEAL from judgments of the Superior Court of San Diego County, Carlos O. Armour and Harry M. Elias, Judges. Affirmed as modified.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

I
INTRODUCTION
Abduqadir M. Sharif agreed to a plea bargain requiring him to plead guilty to a specified offense in exchange for a specified jail term. In addition to imposing the specified jail term, the trial court imposed a discretionary penal fine. The conviction, which qualified as a prior strike conviction, was subsequently used as a sentence enhancement in a second case.
Sharif contends the penal fine violated the terms of his plea bargain in the first case. Consequently, he contends we must reverse the judgments in both cases and allow him to withdraw his plea. (See People v. Walker (1991) 54 Cal.3d 1013, 1028 (Walker), overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183 (Villalobos).)
We agree the imposition of the penal fine violated the terms of the plea bargain in the first case. However, we conclude the appropriate remedy is specific performance of the plea bargain. Accordingly, we modify the judgment in the first case to strike the penal fine. We affirm the judgment in the first case in all other respects. We also affirm the judgment in the second case.
II
BACKGROUND
In San Diego Superior Court case No. SCN338274 (SCN338274), Sharif pleaded guilty to robbery (Pen. Code, § 211). In exchange for the guilty plea, the prosecution agreed to a stipulated sentence of 270 days in jail and to dismiss other charges and enhancement allegations.
Before Sharif pleaded guilty, he initialed and signed a guilty plea form acknowledging, "I understand that I may receive this maximum punishment as a result of my plea: 5 years imprisonment or imprisonment plus a term of mandatory supervision; $10,000 fine; and 4 years parole or post-release community supervision, with return to custody for every violation of a condition thereof. If I am not sentenced to imprisonment, I may be granted probation for a period up to 5 years or the maximum term of imprisonment, whichever is greater. As conditions of probation I may be given up to a year in jail custody, plus the fine, and any other conditions deemed reasonable by the Court. I understand that if I violate any condition of probation I can be sentenced to imprisonment for the maximum term as stated above."
During the guilty plea colloquy, Sharif confirmed he signed and initialed the guilty plea form after he had read and understood everything on the form. The court then queried:
"THE COURT: The form indicates you are going to be pleading guilty to count 1, which is a violation of Penal Code section 211, Robbery. [¶] ... [The prosecution] will dismiss the balance of the complaint. You will be serving a stipulated term of 270 days in local custody. [¶] Is that your understanding of the agreement?
"[SHARIF]: Yes.
"THE COURT: Other than what I have said, has anybody made any other promise to you or has anybody threatened you in order to get you to plead guilty?
"[SHARIF]: Nope. [¶] ... [¶]
"THE COURT: Do you understand that as a maximum possible consequence of your plea, you could have received up to five years in prison, $10,000 fine, and four years on parole?
"[SHARIF]: Yes."
After a few other inquiries and advisements, the court took and accepted the guilty plea, finding there was a factual basis for the plea and Sharif had "made a voluntary, knowing, and intelligent waiver of his constitutional rights." The court did not give Sharif the admonitions required by Penal Code section 1192.5.
At the subsequent sentencing hearing, the court suspended imposition of sentence for three years and granted Sharif formal probation. The court conditioned probation on Sharif serving 270 days in jail, with credit for 188 days already served. The court also conditioned probation on Sharif paying several fines and fees including a penal fine of $820. The court deemed all the fines and fees satisfied by the time Sharif had already served in custody.
Several months later, in San Diego Superior Court case No. SCN347692 (SCN347692), a jury found Sharif guilty of committing additional offenses, for which the court sentenced him to four years in prison. The court also formally revoked his probation in SCN338274 and sentenced him to one year in prison, to be served consecutively to his sentence in SCN347692.
III
DISCUSSION
A
Sharif contends the $820 fine the court imposed as a condition of probation in SCN338274 was unlawful because it significantly exceeded the punishment the parties agreed upon in their plea bargain. We agree.
Generally, "[w]here the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant ... 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." (Pen. Code, § 1192.5.) "The basic principle is that '[w]hen a guilty plea is entered in exchange for specified benefits such as ... an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.' [Citation.] This is a rule of constitutional stature, implicating due process concerns. [Citations.] The rule is not offended by minor deviations from the bargain; to warrant relief, the variance must be ' "significant' in the context of the plea bargain as a whole.' " (People v. Kim (2011) 193 Cal.App.4th 1355, 1359; Walker, supra, 54 Cal.3d at p. 1024.)
"Court should generally be cautious about deeming nonbargained punishment to be insignificant." (Walker, supra, 54 Cal.3d at p. 1027, fn. 3; accord, People v. Clark (1992) 7 Cal.App.4th 1041, 1050–1501.) An analogous case held aggregate fines and fees of $1,100, particularly a discretionary fine of $500 and a related $350 penalty assessment, were significant in the context of a plea bargain promising probation and six months' confinement as the only punishment. (People v. Clark, supra, at pp. 1050–1051.) We have no difficulty concluding a $820 penal fine, which the parties agree was discretionary, was similarly significant in the context of a plea bargain promising 270 days of confinement as the only punishment.
B
We turn now to the appropriate remedy for the error. "The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of each case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases." (People v. Mancheno (1982) 32 Cal.3d 855, 860.)
"The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when specifically enforcing the bargain would have limited the judge's sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances." (People v. Mancheno, supra, 32 Cal.3d at pp. 860–861.)
Although Sharif is seeking to be allowed to withdraw his plea, we believe specific performance is the more appropriate remedy in this case. Because the fine was discretionary, striking it would not result in an unauthorized sentence. In addition, it appears from the record the court's imposition of the fine was perfunctory. The court simply adopted the probation report's recommendation regarding the fine and then deemed the fine fully satisfied by the time Sharif had already served. Consequently, we conclude specifically enforcing the parties' plea bargain by striking the fine would implement the parties' reasonable expectations without binding the court to a disposition it would consider unsuitable.
IV
DISPOSITION
The judgment in SCN347692 is affirmed. The judgment in SCN338274 is modified to strike the $820 penal fine. The superior court is directed to modify the abstract of judgment accordingly and to forward a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment in SCN338274 is affirmed.


McCONNELL, P. J.

WE CONCUR:



HALLER, J.



AARON, J.