Opinion
F061012
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. DAG ANVIL LINDBECK, Defendant and Appellant.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F10900689)
OPINION
THE COURT
Before Wiseman, Acting P.J., Gomes, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez Deputy Attorney General, for Plaintiff and Respondent.
Appellant, Dag Anvil Lindbeck, pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and was placed on probation for two years.
On appeal, Lindbeck contends: 1) he is entitled to the opportunity to withdraw his plea; and 2) certain discrepancies between the oral pronouncement of judgment and the minutes of his sentencing hearing should be corrected to eliminate the vagueness of one of his conditions of probation. We will find merit to these contentions and remand the matter for further proceedings.
FACTS
On January 27, 2010, at approximately 10:30 p.m., Fresno Police Officers Phelps and Price were on patrol in the area of Ashlan and Clovis, investigating a report of narcotics sales, when they saw Lindbeck riding a bicycle that had a dim front light and no rear reflectors. The officers used the patrol car's overhead lights and spotlight to stop Lindbeck, who became extremely aggressive and asked the officers why they stopped him. After Officer Price told Phelps that he believed Lindbeck was under the influence of a controlled substance and alcohol, the officers had him perform a field sobriety test. During the test, Officer Phelps observed Lindbeck's eyelids flutter and his eyes exhibited nystagmus. Officer Phelps then informed Lindbeck that he was under arrest for riding a bicycle under the influence of alcohol and/or methamphetamine. During a post-arrest search of Lindbeck, one of the officers found a plastic baggie containing a small amount of methamphetamine.
On May 17, 2010, defense counsel filed a motion to suppress, which he scheduled for hearing at Lindbeck's preliminary hearing.
On May 28, 2010, at the conclusion of Lindbeck's preliminary hearing, the court denied Lindbeck's motion.
On June 7, 2010, the district attorney filed an information charging Lindbeck with possession of a controlled substance (count 1) and being under the influence of a controlled substance (count 2/Health & Saf. Code, § 11550, subd. (a)).
Lindbeck did not renew his suppression motion in superior court. Instead, on July 15, 2010, Lindbeck waived his eligibility for Proposition 36 probation and pled to the possession charge in exchange for the dismissal of the remaining charge, a grant of probation, and a reduction of the charge to a misdemeanor after one year if Lindbeck did not incur any new law violations. Additionally, the court agreed to issue a certificate of probable cause with respect to the denial of the suppression motion.
On September 14, 2010, the court suspended imposition of sentence and placed Lindbeck on probation for two years.
On September 24, 2010, the court issued a certificate of probable cause.
DISCUSSION
The Alleged Violation of Lindbeck's Plea Agreement
Lindbeck concedes that by failing to renew his suppression motion in superior court he forfeited his right to appeal the denial of his suppression motion even though the court issued a certificate of probable cause. He contends, however, that since he cannot get the benefit of his plea bargain, he should be allowed the opportunity to withdraw his plea. We agree.
The ability to raise the validity of Lindbeck's detention as an issue on appeal was explicitly made a term of Lindbeck's plea bargain and the court agreed to issue a certificate of probable cause for this purpose. However, Lindbeck cannot raise this issue on appeal because he did not renew his suppression motion or move to set aside the information (Pen. Code, § 995) in the superior court. (People v. Richardson (2007) 156 Cal.App.4th 574, 593.)
""'[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." [Citation.] [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.' [Citations.]" (People v. Walker (1991) 54 Cal.3d 1013, 1024.) "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." (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.)
In People v. Burns (1993) 20 Cal.App.4th 1266 (Burns), after the municipal court denied the defendant's motion to quash and traverse a search warrant (Pen. Code, § 1538.5, subd. (f)), the defendant entered a guilty plea with an agreement by the parties that the matter would "be certified for appeal with regard to the denial of [the] motion to suppress." (Burns, supra, 20 Cal.App.4th at p. 1274.) Although, the Burns court found that the search and seizure issue was not cognizable because the defendant had not filed a proper suppression motion in superior court, it nevertheless concluded, "[S]ince appellant cannot be given the benefit of his plea bargain, which entailed the ability to raise on appeal the search and seizure claim, he must be permitted to withdraw his guilty plea." (Ibid.)In accord with Burns, we will remand the matter to the trial court so that Lindbeck will have the opportunity to withdraw his plea if he wishes. (See also People v. DeVaughn (1977) 18 Cal.3d 889, 896 ["We conclude that the judgments must be reversed because defendants' pleas were induced by misrepresentations of a fundamental nature"].)
The Variance Between the Oral Pronouncement of Judgment
and Minute Order and the Vagueness Claim
Introduction
During the sentencing hearing, in advising Lindbeck of his conditions of probation the trial court stated, "You are to -- also, you are not to possess or control alcoholic beverages or dangerous drugs." This was memorialized in the minute order of Lindbeck's sentencing hearing as follows: "Do not possess alcoholic beverages and do not be present in any establishment where the primary items for sale are alcoholic beverages."
Lindbeck contends that the oral pronouncement of judgment controls when it varies from the minute order. Therefore, according to Lindbeck, the minute order of his sentencing hearing should be amended to delete the prohibition on being in an establishment that primarily sells alcoholic beverages and to include the court's prohibition against possessing dangerous drugs. Lindbeck further contends the condition at issue is vague and that to remedy this, the phrase "controlled substances" should be substituted for "dangerous drugs" and the condition should be amended to prohibit Lindbeck from knowingly possessing alcohol and controlled substances. We agree with both contentions.
The Variance Between the Oral Pronouncement of Judgment and the Minute Order
When the oral pronouncement of judgment varies from the minute order the oral pronouncement controls because, "Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error." (People v. Mesa (1975) 14 Cal.3d 466, 471.) Thus, we agree with Lindbeck that the court's oral pronouncement of judgment is controlling and we will direct the trial court to issue an amended minute order that accurately memorializes the court's oral pronouncement of judgment. The Vagueness Claim
"In a variety of contexts, beginning with People v. Garcia (1993) 19 Cal.App.4th 97, ... (Garcia), California appellate courts have found probation conditions to be unconstitutionally vague or overbroad when they do not require the probationer to have knowledge of the prohibited conduct or circumstances. In Garcia, a probation condition prohibiting association with '"any felons, ex-felons, users or sellers of narcotics,"' [citation] was found to impinge on the probationer's 'constitutional right of freedom of association' and accordingly had to be narrowly drawn [citation]. [This court] rejected the contention that it was implicit that the condition would only be violated if the probationer knew of the other person's status, stating 'the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.' [Citation.]
"In People v. Lopez (1998) 66 Cal.App.4th 615, ... (Lopez), [this court] applied [our] reasoning from Garcia to a condition stating in part that '"[t]he defendant is not to be involved in any gang activities or associate with any gang members"' [citation] and concluded that the association prohibition 'suffers from constitutionally fatal overbreadth because it prohibits Lopez from associating with persons not known to him to be gang members' [citation]. [This] court ordered the language modified to provide that '"Defendant is not to be involved in or associate with any person known to defendant to be a gang member."' [Citation.]" (People v. Kim (2011) 193 Cal.App.4th 836, 843-944, fn. omitted.)
The condition prohibiting Lindbeck from possessing alcohol or dangerous drugs is unconstitutionally vague because it does not have a knowledge element, so we will add one to it. Additionally, in order to clarify the condition, we will replace the phrase "dangerous drugs" with the phrase "non-prescribed controlled substances."
DISPOSITION
The judgment is reversed and the cause remanded to the superior court. That court is directed to vacate the guilty plea if Lindbeck makes an appropriate motion within 30 days after the remittitur is issued. In that event, the superior court should reinstate the original charges contained in the information, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no such motion to vacate the guilty plea is filed by Lindbeck, the trial court is directed to reinstate the original judgment. If the judgment is reinstated, the condition prohibiting Lindbeck from possessing or controlling alcohol or dangerous drugs is modified to state that Lindbeck shall not knowingly possess or control alcohol or non-prescribed controlled substances.