P. v. Nelson























Filed 2/14/13 P. v. Nelson CA3











NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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>

THIRD APPELLATE DISTRICT

(Siskiyou)

----






>

THE PEOPLE, Plaintiff and Respondent, v. ROBERT RAINBOW NELSON, Defendant and Appellant.

C070769 (Super. Ct. No. MC YK CR BF 11-1634)

name="_BA_ScanRange">Defendant Robert Rainbow Nelson entered a negotiated plea
of guilty to illegally taking a vehicle and being an unlicensed driver, and was
placed on formal probation.

On appeal, defendant contends the
trial court imposed at sentencing various nonmandatory fees that were not
included in the plea agreement. The People agree that discretionary fees not
included in the plea agreement should be stricken from the order of
probation. We agree with the parties and
shall direct the order of probation to be amended.

PROCEDURAL
BACKGROUND

In connection with his agreement to
enter a plea in this matter, defendant initialed and signed a written change of
plea form.

Under the heading “Restitution,
Statutory Fees, and Assessments,” defendant acknowledged on the change of plea
form that he would be ordered to pay— in an amount yet to be determined—a fine
directed to the victim restitution fund, restitution to the actual victims of
the crimes, restitution to the state victims of crime fund, and a court
security fee. No other fines or fees
were addressed in the plea agreement.
Lines on which additional or “other” fines and/or fees could be
written—including one marked “An (additional) amount to be determined by the
court at sentencing or such other hearing as the court may set”—were left
blank. The trial court accepted
defendant’s guilty plea.

At sentencing, the trial court
granted defendant formal probation. The
trial court stated it would “reserve jurisdiction” on the issue of whether
defendant has the ability to reimburse the county for attorney services and to
pay “the various fines and fees.” It
ultimately imposed nonmandatory fines and fees in the following amounts: $650 for attorney fees; $420 for preparation
of the presentence report; $40 each month for probation supervision; and $148
for a booking fee.href="#_ftn1" name="_ftnref1" title="">[1]

DISCUSSION

Plea agreements are interpreted in
accordance with the rules of contract. ( ADDIN BA xc <@cs> xl 49 s
ASMOMN000002 xhfl Rep xpl 1 l "People
v. Toscano(2004) 124 Cal.App.4th 340" People
v. Toscano (2004) 124 Cal.App.4th 340, 344.) “[B]oth parties . . . must abide by
the terms of the agreement.” ( ADDIN BA xc <@cs> xl 81 s
ASMOMN000003 xhfl Rep xpl 1 l "People
v. Walker(1991) 54 Cal.3d 1013, overruled on other
grounds" People
v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker), overruled on other grounds by ADDIN
BA xc <@$cs> xl 39 s ASMOMN000001 xhfl Rep xpl 1 Villalobos,> supra, 54 Cal.4th at
p. 183.) “[M]aterial terms of the
agreement cannot be modified without the parties’ consent.” ( ADDIN BA xc <@cs> xl 41 s
ASMOMN000004 xhfl Rep xpl 1 l "People
v. Martin(2010) 51 Cal.4th 75" People
v. Martin (2010) 51 Cal.4th 75, 80.)
The appellate court applies the standards of review applicable to
contracts generally. ( ADDIN BA xc <@$cs> xl 18 s
ASMOMN000002 xhfl Rep xpl 1 Toscano, >supra, 124 Cal.App.4th at
p. 345.) “[T]he ‘interpretation of
a contract is subject to de novo review where the interpretation does not turn
on the credibility of extrinsic evidence.’ ”
(
ADDIN BA xc <@cs> xl 83 s ASMOMN000005 xhfl Rep xpl 1 l ">People ex rel. Lockyer v. R.J. Reynolds
Tobacco Co.(2003) 107 Cal.App.4th 516" People
ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th
516, 520.)

Due process applies both to the procedure
of accepting the plea and to implementation of the bargain itself. “[W]hen 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.” ( ADDIN BA xc <@cs> xl 69 s
ASMOMN000006 xhfl Rep xpl 1 l "Santobello
v. New York(1971) 404 U.S. 257 [30 L.Ed.2d 427]" Santobello
v. >New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433].) This does not mean that any violation of the
agreement is constitutionally impermissible.
To violate due process, “the variance must be ‘significant’ in the
context of the plea bargain as a whole.”
(
ADDIN BA xc <@$cs> xl 35 s ASMOMN000003 xhfl Rep xpl 1 Walker,> supra, 54 Cal.3d at p. 1024.)

“A violation of a plea bargain is
not subject to harmless error analysis.
A court may not impose punishment significantly greater than that
bargained for by finding the defendant would have agreed to the greater punishment
had it been made a part of the plea offer.
‘Because a court can only speculate why a defendant would negotiate for
a particular term of a bargain, implementation should not be contingent on
others’ assessment of the value of the term to defendant. [¶] . . . [¶] Moreover, the concept of harmless error only
addresses whether the defendant is prejudiced by the error. However, in the context of a broken plea
agreement, there is more at stake than the liberty of the defendant or the length
of his term. “At stake is the honor of
the government[,] public confidence in the fair administration of justice, and
the efficient administration of justice . . . .”
’ ” ( ADDIN BA xc <@$cs> xl 35 s
ASMOMN000003 xhfl Rep xpl 1 Walker,> supra, 54 Cal.3d at
p. 1026.)

In view of defendant’s limited
resources, we cannot say that the court’s imposition of over $1,250 in fees,
which were not contemplated by the plea agreement, was an insignificant
departure from that agreement. (Cf. ADDIN
BA xc <@$cs> xl 44 s ASMOMN000004 xhfl Rep xpl 1 People
v. Martin, supra, 51 Cal.4th
at p. 80.) Nor are the fees imposed
mandated by statute. (Cf. ADDIN
BA xc <@$cs> xl 39 s ASMOMN000001 xhfl Rep xpl 1 Villalobos,
supra, 54 Cal.4th at p. 183 [“mere silence by the parties and
trial court concerning a statutorily mandated punishment does not make
exclusion of the punishment a negotiated term of a plea agreement”].) Under these circumstances, we agree with the
parties that the fees should be stricken from the order of probation as imposed
in violation of the plea agreement.

DISPOSITION

The following fees imposed by the
February 21, 2012 order of probation are ordered stricken: $650 for attorney fees; $420 for preparation
of the presentence report; $40 each month for probation supervision; and $148
for a booking fee. The judgment (order
of probation) is otherwise affirmed. The
trial court shall amend the order of probation to reflect these changes, and
send a certified copy of the amended order of probation to defendant and his
probation officer.





BUTZ , Acting P. J.





We concur:







MAURO , J.







MURRAY , J.