P. v. Foster
Filed 7/18/13 P. v. Foster CA2/6
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE
PEOPLE,
Plaintiff and Respondent,
v.
CHAD
DAVID FOSTER,
Defendant and Appellant.
2d Crim. No. B243813
(Super. Ct. No. 2012021654)
(Ventura
County)
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
sentenced to felony jail (Pen. Code, §
1170, subd. (h)).
title="">[1] 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.)
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
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. 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.
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.
name="_ftn1" title="">[1] All statutory references are to the Penal Code
unless otherwise stated.
