P. v. Anciso

Filed 1/27/10 P. v. Anciso CA6

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This is an appeal from the sentence imposed following defendants admission of a probation violation. Appointed counsel originally filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Review of the record revealed a discrepancy between the agreed-upon disposition and the sentence actually imposed. We asked the parties to brief the following question: Is reversal required because the record on appeal fails to reflect dismissal of count 2, count 3, and the prior prison term alleged in the complaint? The parties have submitted supplemental briefs on that question, and agree that the plea bargain must be honored, but the judgment need not be reversed. We will remand the matter to the trial court with directions to modify the judgment by dismissing count 2, count 3, and the prior prison term allegation, as contemplated by the plea bargain, and to amend the abstract of judgment accordingly. As modified, the judgment will be affirmed.

PROCEDURAL AND FACTUAL BACKGROUND[1]

On May 30, 2008, defendant was the driver of a car that was stopped by Salinas police for having tinted windows. Defendant identified herself as Cynthia Anciso and gave her date of birth as January 1, 1967. The owner of the car was a passenger and gave police permission to search it. The search of the car yielded numerous syringes and other indicia of drug use, including a glass pipe, a cotton ball containing brown residue believed to be heroin, and a pocket balance scale. More syringes were found in a purse and in a brown paper bag. The car owner admitted that some of the syringes belonged to him. Defendant was arrested for a violation of Vehicle Code section 40302, subdivision (a) and was transported to the police station as she did not have any identification in her possession.

At the police station, police discovered discrepancies which led them to believe that defendant was not Cynthia Anciso. Defendant eventually admitted that she was on parole and that Cynthia was her sister.

A complaint was filed in Monterey County charging defendant in three counts with falsely personating another [count 1], driving without a license [count 2] and giving false information to a peace officer [count 3]. (Pen. Code, 529.3; Veh. Code, 12500, subd. (a), 31.) The complaint also alleged that defendant had one strike prior conviction and had served one prior prison term. (Pen. Code, 667/1170.12, subd. (c)(1), 667.5, subd. (b).)

On June 27, 2008, the date set for the preliminary hearing, defendant entered a conditional plea to count 1, false personation, and admitted the strike prior conviction. Defendant was promised that she would receive felony probation, and upon successful completion of a residential drug treatment program the court would reduce count 1 to a misdemeanor pursuant to Penal Code section 17, subdivision (b). Defendant was expected to file a Romero[2] motion with the understanding that the court would dismiss the prior strike at the time of sentencing. Defendant was advised that six years was the maximum penalty for the offense to which she was pleading no contest. Dismissal of the remaining counts was put over until sentencing.

Defendant entered the Genesis House residential drug treatment program on July 21, 2008.

On August 14, 2008, the court made a finding of unusual circumstances to dismiss defendants strike prior conviction and to place her on probation. The court suspended imposition of sentence, and placed defendant on three years formal probation on various terms and conditions, including that she refrain from using or possessing drugs or alcohol, and that she [c]omplete Genesis House and receive no credit for time served in any residential treatment program . . . should probation be revoked. By accepting probation, you permanently waive your right to such credit. The court stated that it want[ed] to hang a carrot out there for you to successfully complete this program. Youre permanently waiving all your rights to credits in the Residential Treatment Program unless you successfully complete that Residential Treatment Program and all of its aftercare components. Defendant accepted probation on those terms. Defendant was given credit for the 79 days she had served in county jail, and no additional jail time was imposed.

One day later, on August 15, defendant left Genesis House after admitting that she had used an illegal substance. In her statement to the probation officer, defendant explained that she had a life threatening surgery after being at Genesis House . . . for about a month. . . . [A]s a result of the surgery, she was hospitalized for a month, and place[d] on morphine and other pain medication. . . . [S]he was then prescribed Vicadin [sic] and Percocet prior to being released from the hospital. . . . [S]he returned to Genesis House but ran out of her medication, and reverted back to what she has always known, which was heroin.

On November 4, 2008, defendant admitted that she had violated her probation. On December 2, 2008, the court heard argument from the district attorney, defendants attorney, defendants mother-in-law, and defendant herself, through a letter written by defendant and read to the court by her attorney. The court stated it had really taken into consideration all of the letters of support and everything else. The court denied probation, citing defendants repeated failures on probation and parole, and the fact that she absconded from probation and parole following her relapse instead of staying in the program and taking personal responsibility for her relapse. Over defense counsels objection, the court imposed the upper term of three years for the stated reasons that defendant was on parole at the time of the offense, she had served a prior prison term, and her performance on probation and parole were poor [i]n almost every instance, if not every instance. The Court balanced all of the factors in mitigation against the factors in aggravation. Frankly, the carrot was there to have it reduced to a misdemeanor if she successfully completed the program. But that wasnt an indication that the upper term should not be appropriate if she didnt complete it.

DISCUSSION

The record does not reflect that counts 2 and 3, and the prior prison term allegation, were ever dismissed by the court. However, the parties agree, and we concur, that the plea bargain clearly contemplated the dismissal of both counts and the prior prison term allegation. The charges were never admitted, and no sentence was ever imposed on them. The plea bargain must be honored (People v. Mancheno (1982) 32 Cal.3d 855, 860), but reversal is not required. Rather, we will remand the matter to the trial court with directions to dismiss count 2, count 3, and the prior prison term allegation, and amend the abstract of judgment accordingly. As modified, the judgment is affirmed.

CONCLUSION

The record on appeal reflects that the parties contemplated the dismissal of count 2, count 3, and the prior prison term allegation, as part of the plea bargain, but that the dismissals were never formally ordered. To honor the plea bargain, this court will remand the matter to the trial court with directions to modify the judgment by entering the dismissals, and as modified, affirm.

DISPOSITION

The matter is remanded to the trial court with directions to modify the judgment by dismissing count 2, count 3, and the prior prison term allegation, as contemplated by the plea bargain, and to amend the abstract of judgment accordingly. As modified, the judgment is affirmed.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] The historical facts are drawn from the probation reports.

[2] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.