Opinion
F073904
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER RAMIREZ, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Peter H. Smith and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF302922)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Peter H. Smith and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Levy, J. and Detjen, J.
-ooOoo-
Appellant Alexander Ramirez appeals his sentence after pleading guilty to one count of transporting or selling a controlled substance (Health & Saf. Code, § 11379). Appellant's plea included admissions to four special allegations that appellant violated section 11370.2 based on prior convictions under sections 11378, 11379, and 11379.5. It further included a plea to one misdemeanor count of fleeing a pursuing peace officer. (Veh. Code, § 2800.1.) Appellant contends that the trial court failed to abide by the terms of his plea agreement when it sentenced him to a six-year term of incarceration. Appellant further argues both that the People did not prove he willfully failed to participate in a residential treatment program and that his sentence violates principles of equal protection. In supplemental briefing, appellant argues that Senate Bill 180, which modifies the scope of section 11370.2 is retroactive, such that his special allegation admissions are no longer valid. Finally, appellant raises issues with the abstract of judgment and the appropriateness of the fees imposed.
All further statutory references are to the Health and Safety Code unless otherwise noted.
For the reasons set forth below, we vacate appellant's current sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Following a preliminary hearing, appellant was charged by information with one count of transporting or selling a controlled substance under section 11379, one count of possessing a controlled substance for sale under section 11378, and one count of fleeing a pursing peace officer under Vehicle Code section 2800.1. The Health and Safety Code charges each included four special allegations that appellant had prior Health and Safety Code convictions qualifying for additional punishment under section 11370.2, three special allegations under Penal Code section 1203.07, and four special allegations that appellant had suffered prior convictions under Penal Code section 667.5. The preliminary hearing showed appellant failed to comply when officers attempted a traffic stop. In the ensuing pursuit, an officer observed appellant toss a small bag containing methamphetamine out of the car window. After the pursuit, a search of the vehicle uncovered another small bag containing methamphetamine. In total, both bags contained 6.8 grams of the drug. When searched, appellant also possessed three cell phones and a list of names and phone numbers.
On August 10, 2015, appellant entered into a guilty plea. As the People explained the negotiated resolution, the parties agreed to proceed based on the court's indicated sentence of "six years suspended prison with 365 days in a residential drug program" where the "six years will be based on the midterm Count 1 plus one of the prior sales." The court conducted a plea colloquy where appellant pled no contest to the charged violation of section 11379 and admitted the four special circumstance allegations under section 11370.2. The court began to take appellant's plea on the second count under section 11378, but was interrupted by the People who explained they were not requesting a plea on that count. Appellant then pleaded no contest to the charged vehicle code misdemeanor. The Court accepted the plea and scheduled sentencing for September 2015. As the hearing closed, appellant's counsel noted appellant had "an in-patient program that he believes he can get into" and stated appellant would "try to bring proof of that at sentencing." The court responded that "if he can get into that program before sentencing, that would be preferable," but warned that "if you don't get into it before sentencing, probably what I'll do is take you into custody and then allow you to be released to the program."
After a short continuance, the parties appeared before the court for sentencing on October 5, 2015. At that time, appellant's counsel noted the probation report was "not in line with the indicated sentence which was six years suspended and that [appellant] would spend a year in an in-patient treatment program" because the probation department determined appellant's plea included the special allegations under Penal Code section 1203.07, circumstances that rendered him ineligible for a suspended sentence. In response, the People dismissed the Penal Code section 1203.07 allegations, emphasizing that they had "negotiated a sentence here that would afford [appellant], and I'd like to emphasize this very clearly, one last chance . . . to get help with his problem." The court accepted the dismissal and continued appellant's sentencing, allowing appellant to waive his right to be present at sentencing so he could immediately attend a program called the Bible Tabernacle.
When the parties reconvened in November, the probation department requested a continuance because they "had a clerical error and did not process the documents they need to process." The court continued the hearing until December, telling appellant's counsel she should notify appellant of the change and telling counsel a "proof of notice" might be required if appellant was not to appear at the next hearing. When the December hearing convened, appellant was not present and his counsel stated she "had no contact with [appellant]." The court found "a willful failure to appear" and issued a warrant. It explained on the record that it had "already let the attorneys know it's the court's inclination not to follow the indicated sentence."
Although no transcript is present, the record reflects appellant next appeared in court at a February 19, 2016, hearing, where the court recalled his warrant and remanded him on $50,000 bail. The record shows that, by this time, appellant had already left the Bible Tabernacle program and not only enrolled, but also left, a second treatment program called Valley Lodge. A December 15, 2015, filing from the probation department notes that on "December 15, 2015, Probation received a call from [the] House Manager . . . at Valley Lodge, where the defendant was residing in the sober living home." The House Manager informed probation appellant had "left the day prior at approximately 4:00 p.m. and his whereabouts were unknown" but that appellant "was aware of a bench warrant for his arrest, and was aware he was possibly facing a six year commitment." At the February 19, 2016, hearing, the court accepted a letter from the Valley Lodge stating appellant "moved in on 11-24-15, and moved out on 12-14-15."
After additional continuances, the parties again appeared before the court on March 21, 2016. At this point, there was substantial confusion over how to proceed. The People immediately raised the fact that the court had previously stated it was "not inclined to follow the probation recommendation" and shared the People now felt appellant "should be given more—some time in custody." The court responded by questioning whether the People were "asking for him to withdraw from the plea, or . . . asking for him to do the 365 days in custody?" It then asked the People what sentence they were now seeking, to which the People responded "a split of the six years. . . . for him to do at least two years in custody which will be [pursuant to Penal Code] 1170(h)." The court explained it was "trying to get the details of this nailed down" and that it was "seriously considering" giving appellant a higher indicated sentence but believed, in that case, "the defendant would be entitled to withdraw his plea." To that, the People responded with their belief appellant's failure to appear at his sentencing in December violated the plea agreement and permitted a higher sentence.
The exact date is subject to some confusion, as the reporter's transcript lists the day as both March 21 and March 22, 2016, while the clerk's transcript shows the hearing was March 21. The discrepancy is not material.
The court then turned to appellant's counsel, who explained appellant missed the prior hearing because he "was under the impression that . . . [the court] had told him that he was not required to be at that last hearing" since he was in a rehab program at the time. Counsel argued appellant had received a letter from his counsel at the time, telling him if he was in a program he did not need to appear at the December hearing. The court received a copy of the letter, which stated, "As you are not in a residential treatment program as required, you must be present at that court date [December 9]. If you are not present, and have not given me proof that you are in a residential treatment program, a bench warrant will be issued for your arrest. I would like to remind you that you plead to a 6 year suspended prison sentence and will receive that sentence if you do not stay in a residential treatment program for 1 year." The court, reviewing this language, concluded appellant's assumption he did not need to appear was erroneous. Counsel further explained that appellant left the Valley Lodge program, the second in which he had enrolled, because he was told by his attorney that the program was not approved.
After listening to appellant's counsel, the court again asked the People whether they were seeking a two year sentence, to which the People responded that they also wanted appellant in a prison drug rehabilitation program, before stating: "That's my inclination to do today, counsel." In response, appellant's counsel asked for a continuance. The court granted that request only after obtaining a Cruz waiver from appellant. Before continuing the matter, the court explained that "presently, you have an indicated sentence of your six years that you pled to. The court . . . [t]he court's gonna give you two years 1170, okay. Now, if you fail to appear on your next court date, the Cruz waiver then says all bets are off and that the court can give you as much as the six years." The court then continued sentencing until April 13, 2016. In the minute order issued after the hearing, the court noted it had provided a new indicated sentence of two years, straight time, pursuant to section 1170 and that the indicated sentence was predicated upon enrollment in a treatment program.
People v. Cruz (1988) 44 Cal.3d 1247, 1253-1254 (Cruz).
The April 13, 2016, hearing began with appellant taking the stand and testifying to facts supporting his claim that his prior attorney had told him the Valley Lodge program was not appropriate and that he was now enrolled in a different residential sober living treatment program in Southern California. Relying on these facts, counsel argued appellant mistakenly thought he was complying with the court's order to be in a residential treatment program or appear at the December hearing, that he was now in new program, and that he should be given "one last chance to complete that program." The People opposed this request, arguing the court should impose what it claimed was the court's prior tentative ruling of two years in custody, with four years suspended and an opportunity to do a prison treatment program. The court then reviewed the record concerning appellant's appearances, including a readback of the November 4, 2015, hearing. Upon review, the court determined it "could understand the confusion" concerning appellant's obligation to appear and therefore determined it was "not gonna find that [appellant] failed to appear for that sentencing [in December.]"
Upon reaching this conclusion, the court noted that "the original plea was to 365 days" and explained to appellant that it was very concerned about appellant's decision to walk away from two prior treatment programs. As the court and appellant continued to discuss his current treatment program, the People noted that probation felt appellant was "not a suitable candidate for participation in any drug program." The court responded that it "understood that, but my concern is that he has entered into a plea agreement, and as of this moment, it does not appear to me that he's violated the plea agreement." The court then referred the People to their statements regarding the negotiated plea made at the August 10, 2015, hearing and found "that the benefit of the doubt needs to go to the defendant" with respect to his actions ahead of sentencing. The court also stated its intent to impose the original agreement when it stated "if he fails to stay in the program, if he fails to successfully complete 365 days in residential treatment, he's in violation of the plea agreement which means that the suspended state prison would then become effective."
Although the People continued to object that the current treatment program was not approved by probation, the court overruled this contention and proceeded to sentence appellant. In doing so, the court specifically told appellant that his suspended sentence was subject to the requirements of Penal Code section 1170, and thus would not be served in prison. A review hearing was then set for June 2016. Interestingly, the court imposed a sentence based on all three of the charged counts in the information.
On April 28, the court received a memorandum from the probation department explaining that appellant had contacted probation on April 25, to notify them that he had left his residential treatment program on April 21, that he "was no longer interested in participating in a treatment program" and that he "requested a warrant be issued so he could remand himself to begin serving his six year term." The probation department explained it could not issue the warrant because the sentencing order stayed the prison term "but did not specify whether probation was granted." At a subsequent hearing on May 4, 2016, the People confirmed their understanding of appellant's desire to forego further treatment and the court took appellant into custody, with counsel's assent, while necessary paperwork was completed.
At the subsequent hearing, on May 25, 2016, appellant fired his retained counsel because he was unhappy his expected prison term would be served in county jail and requested appointment of a public defender. Appellant also requested to withdraw his plea, claiming he had not been told he would serve a portion of his prison sentence in county jail. Finding appellant indigent, the court granted his request for a public defender and allowed appellant's new counsel to raise appellant's concerns regarding his prior representation.
As part of this process both appellant and his prior counsel testified regarding their discussions. Prior counsel testified he had told appellant multiple times about the potential need to serve his prison time in county jail under section 1170. Appellant testified he was never told about the possibility of serving a full six years in county jail, but acknowledged he had been informed that, should the six year sentence not be imposed, he could receive a split sentence with some time in county jail and the remainder on probation. In the course of his testimony, appellant explained he had turned himself in to probation because he "didn't have no more money to pay for the rehab" he had entered. Appellant claimed this lack of funds was a direct result of the bail condition imposed when he did not appear for the prior sentencing hearing in December.
Based on this testimony, appellant's new counsel argued appellant should be allowed to withdraw his plea because he was not adequately represented by prior counsel. In the alternative, counsel asked the court to impose the split sentence indicated at the previous hearing in March. The People opposed, arguing appellant had failed multiple prior rehab opportunities and was aware of the expected sentence should he fail again. The trial court denied appellant's request to withdraw his plea. In proceeding to sentencing it noted appellant's new counsel's contention "that [appellant] did not walk away from the last program, that he was trying to be responsible, and the only reason he left the last program was because he couldn't afford it" but found "in doing a timeline, if you will, of all of these events . . . it is abundantly clear to the court that he knew his state of finances when he went into this last program." The court then sentenced appellant to six years in county jail under Penal Code section 1170 based on the mid-term of three years on count 1 and a consecutive three years under section 11370.2. A similar sentence was imposed under count 2, while no time was given under count 3. Appellant was also ordered to pay several fees and fines, including $105 pursuant to Penal Code section 1205 and multiple penalty assessments in connection with a $100 crime-lab fee imposed pursuant to section 11372.5 and a $150 drug program fee pursuant to section 11372.7.
As noted below, the People concede that several of these fees and related penalties are excessive due to the court apparently assessing fees assuming appellant had pled guilty to count two. Because we ultimately remand for re-sentencing, we do not individually identify each excessive fee.
This appeal timely followed.
DISCUSSION
Appellant raises five allegations of error in his opening brief and one additional ground in supplemental briefing. These assertions challenge the trial court's imposition of a sentence under the plea bargain, the appropriateness of the fees, fines, and penalties associated with the sentence properly imposed, and the effect of recent modifications to the law affecting the enhancements appellant pled to. The People concede certain aspects of the fee issues and recognize that recent changes to the law do affect appellant's plea, but otherwise contest appellant's positions. The Trial Court Properly Imposed the Plea Bargain
We begin by considering appellant's challenges to the trial court's imposition of a sentence under the plea bargain. Appellant contends the trial court failed to honor the terms of the plea agreement entered in this case. More specifically, appellant argues the trial court and the parties amended the initial plea agreement to change appellant's agreed-upon sentence—should he fail to complete a year-long residential treatment program—from a six-year sentence to a split sentence with two years in jail and four years on probation.
Plea Bargains
A negotiated plea bargain is an agreement between the defendant and the prosecutor; if approved by the trial court, the agreement binds both the parties and the court. (People v. Segura (2008) 44 Cal.4th 921, 930 (Segura).) "Because a 'negotiated plea agreement is a form of contract,' it is interpreted according to general contract principles." (Ibid.) "If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' " (Id. at p. 931.)
"Although a plea agreement does not divest the court of its inherent sentencing discretion, 'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] "A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, "[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree." ' " (Segura, supra, 44 Cal.4th at p. 931.) Even where a defendant fails to appear for sentencing, if the court is to withdraw its acceptance of the plea bargain, Penal Code section 1192.5 allows the defendant to withdraw his plea if desired. (See Cruz, supra, 44 Cal.3d at pp. 1253-1254.)
The Court's Conduct Regarding the Plea Agreement
Upon review of the record, we do not agree with appellant that the court and the parties modified the plea bargain on March 21, 2016, to impose a split sentence should appellant fail to complete his 365-day treatment program. In December 2015, when appellant first missed a sentencing hearing, the court treated his absence as a willful failure to appear and indicated this failure meant the court was not inclined to follow the planned sentence. However, when the parties again took up the issues in earnest, in March 2016, it was clear that no course of action had been set. The trial court directly indicated it thought the plea bargain was still in place when it asked the prosecutor to confirm whether or not the People wished to withdraw from the plea. And the court appeared to correctly recognize it was generally bound by the terms of the plea agreement, even in the face of arguments from the People that a failure to appear rendered that agreement moot, when it asked the prosecutor to identify actual case law to support the claim the court could sentence appellant to any term it desired and indicated it believed appellant would be permitted to withdraw his plea if such a decision was made. Although the court ultimately told appellant it planned to sentence him to a split time sentence, and received no objection from appellant, it did not offer him an opportunity to withdraw his plea, as required, and instead granted a continuance at appellant's request.
When the parties next convened, in April 2016, the court took and considered arguments concerning appellant's failure to appear the last December and ultimately concluded that failure was not willful. It then imposed the original sentence of 365 days in treatment with a suspended prison sentence. In doing so, the court confirmed it felt it was still bound by the plea agreement as accepted because appellant had not violated its terms. Indeed, the court offered appellant no opportunity through the extended proceedings to formally withdraw from the plea as negotiated.
In this way the record demonstrates the court's discussion of indicated sentences following the plea bargain was limited to how to proceed if appellant was found to have willfully failed to appear for sentencing. At the time the court issued it indicated sentence, it had found appellant willfully failed to appear. At appellant's request, however, the court continued the matter, allowed for further evidence and argument, and reconsidered its ruling. At this point, the court repeatedly referred to the fact it was abiding by the terms of the plea agreement as initially accepted given no willful failure to appear had occurred. Further, at all times in the proceedings, the court appeared to recognize, and indicated to counsel, that any change to the plea bargain—regardless of whether it arose out of a failure to appear—would require the court to offer appellant an opportunity to withdraw his plea. The court's decision not to offer this opportunity to appellant further indicates it never intended to or actually did modify the original plea agreement. As appellant's argument requires accepting the inaccurate factual premise that the trial court actually modified the plea agreement with the parties' consent, his position cannot stand.
Burden of Proof and Equal Protection Positions
We next consider appellant's contentions that the court did not properly consider whether appellant willfully failed to participate in a treatment program, and violated equal protection principles when sentencing appellant to jail. With respect to both of these positions, appellant draws analogies to principles derived from probation situations, including the statutory requirement that "[s]upervision shall not be revoked for failure of a person to make restitution imposed as a condition of supervision unless the court determines that the defendant has willfully failed to pay and has the ability to pay" and the case law principle that an indigent defendant cannot be imprisoned because of his inability to pay a fine, even if a condition of probation. (Pen. Code, § 1203.2, subd. (a); In re Antazo (1970) 3 Cal.3d 100, 115.) He then claims the only evidence before the trial court in this matter indicated appellant could not continue the residential treatment program he had enrolled in for the sole reason that he could not pay for it.
The People contest appellant's arguments, in part noting they rely on cases and principles related to probation fines and in part by noting appellant was fully capable of entering into a different agreement during the plea agreements. We do not agree that appellant's probation analysis is wholly distinguishable. While it is correct that appellant was not placed on formal probation, he was granted what is referred to in the statutory scheme as a conditional sentence. (Pen. Code, § 1203, subd. (a).) Such sentences are generally treated in the same manner as formal probation. However, despite the analogous setting, we conclude appellant's case is factually distinguishable from the principles he relies upon based on the fact he was entering into a plea agreement and the facts before the trial court regarding his prior attempts to enter treatment.
With respect to appellant's argument the court needed to find appellant willfully failed to pay and had the ability to pay for the residential treatment program under Penal Code section 1203.2 we find no statutory authority for this position. Although it is true that a person "released on conditional sentence" but "not under the care of a probation officer" is subject to the strictures of Penal Code section 1203.2, that section only holds that, "Supervision shall not be revoked for failure of a person to make restitution imposed as a condition of supervision unless the court determines that the defendant has willfully ailed to pay and has the ability to pay." The costs of the residential treatment program do not qualify as restitution imposed as a condition of supervision, but instead are incidental costs associated with appellant's chosen program.
For similar reasons we see no merit in appellant's equal protection claim. Appellant's cited case law, Bearden v. Georgia (1983) 461 U.S. 660, discusses mandated fees and payments imposed by the court. Appellant's contested costs are associated with his own choice of treatment program. Appellant was not ordered, as a term of his negotiated deferred sentence, to complete a specific residential substance abuse treatment program. Rather he was ordered, based on his negotiated agreement, to complete "a" residential treatment program. Appellant chose the program in question on his own, as he did for all the programs he attended, and over the objection of the prosecutor. Moreover, appellant chose this program after he failed to complete two other programs for reasons which were not identified as cost-based, credibly supporting a conclusion appellant was not leaving these programs for financial reasons. In sum, appellant was not enrolled in an expensive program at the direction of the court or the probation department. Instead, his enrollment in the program stemmed from his own actions. Under such facts, we see no way appellant can credibly claim he was denied the equal protection of the law. (See People v. Morales (2016) 63 Cal.4th 399, 408 [" ' "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner" ' "].)
As we find no merit in appellant's core arguments, we need not further address his allegations of ineffective assistance of counsel based on trial counsel's failure to object to the prison sentence imposed. (See People v. O'Malley (2016) 62 Cal.4th 944, 1010, fn. 12.) Application of Senate Bill 180
While appellant's matter has been pending, the California Legislature passed Senate Bill 180. On January 1, this new law became effective. (Stats. 2017, ch. 677, § 1.) Senate Bill 180 modified section 11370.2 to establish that sentencing enhancement applies only to violations of section 11380, which criminalizes the use of a minor as an agent in the commission of a drug offense. In doing so, the amendments abolished existing sentencing enhancements predicated on violations of other drug statues, including sections 11378 and 11379. (Stats. 2017, ch. 677, § 1.) Because appellant's three sentence enhancements under the plea bargain were predicated on sections no longer covered by section 11370.2 and his convictions are not final, appellant contends he is entitled to the benefit of the amendments. Appellant suggests this can be done by simply striking his enhancements.
The People do not dispute that the amendments to section 11370.2 are applicable to appellant's case because it has not yet reached a final judgment. Nor do the People contest the fact that the sentencing enhancements utilized in appellant's sentence are no longer applicable. The People do, however, contest appellant's request to strike the enhancements. First, they contend such a response is not proper when the sentence arises form a plea bargain. However, in the event the enhancement is struck, the People argue the court should allow them to withdraw the plea bargain based on the change in the law, reinstate the prior charges, and remand the matter to the trial court.
We do not agree with the People that it is improper to strike the contested enhancements, even following a plea bargain. As the People recognize, the general rule with respect to plea bargaining is that the plea bargain implicitly accounts for future changes to the law. (Doe v. Harris (2013) 57 Cal.4th 64, 73.) The People cite to no evidence showing such an implicit expectation was not part of the bargain in this case and concede the statutory modifications are intended to apply to appellant. Instead, relying on People v. Collins (1978) 21 Cal.3d 208, they argue that the enhancement constituted a full half of the sentence and thus was integral to their agreement. As the People's own citation to Collins shows, however, that case stands for the proposition that total relief from vulnerability to a sentence is sufficient to deprive the government of the benefit of its bargain. (Id. at p. 215.) Here, the change in law was a modification of sentencing enhancements and not total relief from appellant's vulnerability to punishment. As such, the general rule is applicable and the fact appellant's enhancements cannot stand in light of the changed law are no basis to withdraw the plea bargain. We further note such a result is consistent with the few published cases considering situations where appeals were pending when Senate Bill 180 became effective, including cases following plea bargains. (See People v. Millan (2018) 20 Cal.App.5th 450, 455-456; People v. Zabala (2018) 19 Cal.App.5th 335, 340, 344.)
We do not, however, believe it appropriate to simply strike the enhancements and amend the abstract of judgment. As noted above, the plea and sentencing in this case generated a substantial amount of confusion regarding how to proceed. In doing so, it also resulted in several procedural irregularities. For example, as the People recognize, appellant was improperly sentenced on the second charge of the information, a charge to which appellant never pled guilty. Notably, however, this charge was also never formally dismissed. Similarly, although not discussed by the parties, appellant appears to have never directly admitted to the prison prior allegations under Penal Code section 667.5, despite the fact the abstract of judgment shows punishment on those prior convictions has been imposed but stayed, and the record does not show the People formally dismissed those allegations. Should those allegations be part of the plea agreement, it appears the court could still impose the agreed upon sentence of six years. If they are not, the court and the parties will need to determine whether the non-dismissed charges are still valid and, if not, whether the court will continue to accept the plea bargain as made. As such, we conclude the appropriate remedy is to vacate appellant's current sentence and remand the matter for resentencing to allow the parties and the trial court to resolve any remaining disputes.
Considering the People's concession regarding the second charged offense and our decision to vacate the sentence and remand the matter, we need not extensively cover appellant's fee disputes. We note the People concede several of the fines are too high given the lack of conviction on the second charged offense and the stated limits in Penal Code section 1205. On remand, we note that we do not agree with the analysis in People v. Watts (2016) 2 Cal.App.5th 223, 237 concluding the fee imposed under § 11372.5 is not a fine subject to further penalties. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1522; People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1696 [considering issue in context of § 11372.7]). The trial court may adjust the fees and penalties to appropriate levels. --------
DISPOSITION
The judgment is vacated and the matter remanded to the trial court for resentencing.