Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. CR135668
SIMONS, Acting P.J.
When a criminal defendant is induced to enter a plea of guilty or no contest by a promise of a fundamental nature that cannot be kept, he or she is entitled to a reversal of the resulting judgment and sentence. (People v. Hollins (1993) 15 Cal.App.4th 567, 574.) Gunter Mannich appeals from a conviction after he pled no contest to one count of criminal threats (Pen. Code, § 422). He was sentenced to state prison for 16 months. Appellant contends he is entitled to withdraw his no contest plea, because he entered the plea in reliance on the misrepresentation that he would be permitted to petition the trial court for reduction of his felony offense to a misdemeanor under section 17, subdivision (b) (hereafter section 17(b)). We disagree and affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
We dispense with a recitation of the facts underlying appellant’s offense as they are not material to the issue on appeal. Instead, we summarize the relevant procedural facts surrounding appellant’s no contest plea.
A complaint filed May 16, 2007, charged appellant and four other defendants with 13 felony offenses: two counts of kidnapping to commit robbery (§ 209, subd. (b)(1)) (counts 1 and 4), two counts of kidnapping (§ 207, subd. (a)) (counts 2 and 5), two counts of aggravated assault (§ 245, subd. (a)(1)) (counts 3 and 6), three counts of criminal threats (§ 422) (counts 7, 8 and 10), attempted kidnapping (§§ 207, subd. (a), 664) (count 9), two counts of false imprisonment by violence (§ 236) (counts 11 and 12), and carrying a dirk or dagger (§ 12020, subd. (a)) (count 13). The complaint further alleged that appellant and his codefendants used a deadly weapon in the commission of counts 1, 2, 4, 5, 9 and 10. (§ 12022, subd. (b)(1).) On May 18, appellant entered a plea of not guilty to all counts of the complaint.
Pursuant to a negotiated disposition, on August 3, 2007, appellant entered a plea of no contest to one count of criminal threats (§ 422) (count 7). Under the terms of his plea, appellant agreed to a minimum penalty of probation and a maximum penalty of three years in state prison. In exchange, the remaining counts against appellant were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). Appellant and the prosecutor signed a written plea agreement which stated, in part: “Plea Bargain - The following promises have been made to me as a condition of my plea(s). No other promises have been made. I understand that if the Court refuses to follow this plea bargain then I will be allowed to withdraw my plea(s) of guilty or no contest and enter a not guilty plea.” The following terms were handwritten beneath this provision: “plead guilty to PC 422, cap 3 years, Harvey waiver, open sentencing, after 3 years may petition for misd under PC 17(b), dismiss all pending counts.”
On the day the written plea agreement was executed, defense counsel informed the trial court that appellant would plead no contest to one count of violation of section 422 on the understanding that there would be a cap of three years in state prison. Appellant stated he had initialed and signed the plea form and had no questions about anything contained in the form. The court asked appellant if anyone had made promises to him other than those set forth in the plea form and in open court; appellant responded in the negative. The court also asked appellant if he understood the maximum term of confinement for violation of section 422 was three years in state prison, and he assented. Appellant then formally entered his no contest plea to violation of section 422. The record contains no other references, by the court, counsel or appellant, to the term in the written plea agreement that “after 3 years may petition for misd under PC 17(b).”
At the September 25, 2007 sentencing hearing, the prosecutor argued for imposition of the maximum sentence of three years in prison, and defense counsel argued for a grant of probation. The court denied probation and sentenced appellant to the low term of 16 months in state prison. Appellant requested a certificate of probable cause, which was granted, and filed a timely notice of appeal.
DISCUSSION
Appellant contends he is entitled to withdraw his no contest plea because he entered the plea in reliance on the plain language of the plea agreement that he would be permitted to petition the court for reduction of his felony offense to a misdemeanor under section 17(b). He contends this promise was illusory, because the court is not authorized to reduce a felony to a misdemeanor after a prison sentence has been imposed.
The process of plea bargaining “contemplates an agreement negotiated by the People and the defendant and approved by the court.” (People v. Orin (1975) 13 Cal.3d 937, 942.) It is settled that “when 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.” (Santobello v. New York (1971) 404 U.S. 257, 262.) “Failure of the state to honor the agreement violates the defendant’s due process rights for which the defendant is entitled to some remedy.” (People v. Lopez (1998) 66 Cal.App.4th 615, 636.) However, “[t]his does not mean that any deviation from the terms of the agreement is constitutionally impermissible”; instead, the variance must be “ ‘significant’ in the context of the plea bargain as a whole to violate the defendant’s rights.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) “ ‘Where a defendant’s plea is “induced by misrepresentations of a fundamental nature” such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. [Citations.]’ [Citation.]” (Hollins, supra, 15 Cal.App.4th at p. 574; see also People v. DeVaughn (1977) 18 Cal.3d 889, 896; People v. Coleman (1977) 72 Cal.App.3d 287, 292-293.)
Appellant’s written plea agreement stated, in part: “after 3 years may petition for misd under PC 17(b).” Appellant contends, and the Attorney General concedes, that once the court imposed a prison sentence on appellant, the court lacked authority to reduce his felony conviction to a misdemeanor under section 17(b). Section 17(b) provides, in relevant part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison. [¶] . . . [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” Thus, under section 17(b), “[i]mposition of a prison term, whether or not suspended, render[s] the offense a felony” (People v. Wood (1998) 62 Cal.App.4th 1262, 1267), and the trial court lacks authority to reduce a felony offense to a misdemeanor after a prison term has been imposed.
“Traditionally, courts have viewed plea agreements ‘using the paradigm of contract law. [Citations.]’ [Citation.] Analogizing to contract law, courts examining plea bargains ‘should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations. [Citations.]’ [Citation.]” (People v. Knox (2004) 123 Cal.App.4th 1453, 1458.) “The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, § 1641.)
We cannot conclude, on the record in this appeal, that a misrepresentation was made to appellant as to his right to petition for reduction to a misdemeanor. The only evidence we have of the precise promise given to appellant is an abbreviated note in the plea agreement: “after 3 years may petition for misd under PC 17(b).” The most reasonable interpretation of this language is that appellant’s right to seek this relief “under PC 17(b)” was limited by the terms of that Penal Code provision, which expressly bars such a motion if the defendant is sentenced to state prison. No misrepresentation is evident from the language of the plea agreement itself.
Relying on People v. Toscano (2004) 124 Cal.App.4th 340, appellant contends that the language in the plea agreement is ambiguous and, so, should be construed in his favor. We find Toscano distinguishable. In that case a written plea agreement provided, in part, that “ ‘Defendant & Prosecution agree that Defendant shall have the right to a motion to strike prior.’ ” (Id. at p. 342.) Toscano held that this plea term unambiguously permitted a motion to strike on any ground, and rejected the Attorney General’s argument that the term should be construed to permit only a motion to strike the prior conviction under section 1385 pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (Toscano, at p. 344.) The court noted that the plain meaning of the written agreement was not altered by the prosecutor’s oral reference to a “ ‘Romero motion’ ” during the hearing at which appellant entered his plea. (Toscano, at p. 344.) The court further stated that it would reach the same result even if it found the written term ambiguous, “because plea agreements are interpreted according to the general rule ‘that ambiguities are construed in favor of the defendant.’ ” (Id. at p. 345.) But the plain meaning of the relevant provision in appellant’s plea agreement imports the statutory limits in section 17(b). No ambiguity exists.
Moreover, even if a misrepresentation were made to appellant, we have no basis for concluding that it was a “fundamental” misrepresentation that “induced” appellant to enter his no contest plea. (Hollins, supra, 15 Cal.App.4th at p. 574.) Appellant was charged with 13 felony counts, including multiple counts of kidnapping to commit robbery (§ 209, subd. (b)(1)), kidnapping (§ 207, subd. (a)), aggravated assault (§ 245, subd. (a)(1)), and false imprisonment by violence (§ 236). If convicted of these charges, appellant faced up to two life terms and 56 years in state prison. Appellant pled no contest to a single charge of criminal threats (§ 422) with a maximum prison sentence of three years. There is no evidence that, in deciding to accept this plea bargain and avoid exposure to a much longer prison sentence, appellant relied on the promise that he would be able to petition for reduction to a misdemeanor. Nothing in this record on appeal suggests appellant would have rejected the plea bargain if a further explanation of his rights under section 17(b) had been provided. We cannot conclude on the record before us that appellant regarded the section 17(b) term as “fundamental” or that it induced him to enter his no contest plea.
In his reply brief, appellant contends that the section 17(b) term was significant in the context of the plea bargain, noting that “[t]here are many dire consequences of a felony conviction, which do not flow from a misdemeanor conviction.” While we do not question that reduction of his offense to a misdemeanor may confer benefits on appellant, he has not demonstrated that the section 17(b) term was significant in the context of his plea bargain. People v. Arata (2007) 151 Cal.App.4th 778, relied on by appellant, is inapposite. In Arata, the defendant pled guilty to one count of lewd or lascivious acts on a child (§ 288, subd. (a)). (Arata, at pp. 781-782.) The plea bargain contained an implied term that the defendant would be able to move to withdraw his guilty plea upon completion of probation under section 1203.4; however, subsequent legislative amendments made this relief unavailable to the defendant. (Arata, at pp. 783, 787.) The court held that denial of section 1203.4 relief was a “ ‘significant’ variation in the context of the entire plea bargain so as to violate defendant’s constitutional rights.” (Arata, at pp. 787-788.) The court explained that, although the plea bargain also resulted in the dismissal of one count and avoidance of a prison term, “it was clear at the outset to the prosecution, the court, the probation department, and the doctors that ‘this was not a state prison case.’ Thus, the act of clemency in granting probation would be significantly diminished if not accompanied by the eventual reward of section 1203.4 relief.” (Arata, at p. 788.) Here, appellant’s plea bargain resulted in the dismissal of 12 felony counts and the guarantee of a prison sentence no longer than three years, and appellant points to no evidence that the section 17(b) term was significant in this context.
The state of the record before us also distinguishes this matter from Hollins, relied on by appellant. In Hollins, the defendant brought a motion in the trial court to compel disclosure of a confidential surveillance location. The court denied the motion but agreed to issue a certificate of probable cause for appeal of the denial. The defendant then entered a no contest plea. (Hollins, supra, 15 Cal.App.4th at p. 570.) After defendant entered his plea, the court attempted to clear up “some confusion in the record” and informed the defendant that his motion was “not subject to appeal, although it [was] subject to a writ.” (Id. at pp. 572-573.) The Court of Appeal concluded that, contrary to the trial court’s assertions, appellant’s motion was not reviewable by appeal or writ petition. (Id. at p. 571.) However, the court held that appellant’s no contest plea was induced by the promise that the issue in his motion was preserved for appeal. (Id. at pp. 574-575.) “ ‘Where a defendant’s plea is “induced by misrepresentations of a fundamental nature” such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. [Citations.]’ [Citation.]” (Id. at p. 574.) The court rejected the Attorney General’s argument that the trial court had not promised the defendant his motion was appealable, finding “[t]he clear import of both the pre- and postplea statements was that review by a higher court (whatever the procedural vehicle) remained available despite the change of plea.” (Id. at p. 573.) The court further concluded that “ ‘[t]he promise was illusory and therefore was an improper inducement which voids the plea,’ ” and remanded the matter to allow the defendant the opportunity to withdraw his plea. (Id. at p. 575.)
In Hollins, unlike in our case, the appellate court had an ample record upon which to conclude that the promise of appealability was “ ‘an improper inducement which voids the plea.’ ” (Hollins, supra, 15 Cal.App.4th at p. 575.) We are unable to reach this same conclusion.
DISPOSITION
The judgment is affirmed.
We concur: NEEDHAM, J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.