Opinion
C084674
01-24-2018
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE CARL STUDYVIN, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NCR10479)
While he was serving a jail term, defendant Lawrence Carl Studyvin, Jr., pleaded guilty to vehicle theft with a prior (Pen. Code, § 666.5, subd. (a); statutory section references that follow are to the Penal Code unless otherwise stated), with the understanding that an additional year (one-third the middle term for that offense) would be added to his existing sentence. At sentencing, however, the trial court restructured defendant's sentence resulting in a sentence of seven years and four months. On appeal, defendant contends the sentence exceeded the terms of the plea bargain. The People concede the error, and we agree.
FACTS AND PROCEEDINGS
In mid-2015, defendant was sentenced to four years eight-months in two Colusa County cases. Each case charged a single count: second degree burglary (§ 459) in one and unlawful taking or driving of a vehicle (Veh. Code, § 10851) in the other. The sentence on the burglary case was designated the principle term and a two-year middle term was imposed. In the separate matter charging vehicle theft, the trial court imposed an eight-month consecutive term (one-third the middle term) and a two-year enhancement for committing the offense while on bail. (§ 12022.1.)
In early 2017, while defendant was serving his four-year eight-month sentence for his offenses in Colusa County, defendant pleaded guilty to vehicle theft with a prior (§ 666.5, subd. (a)) as part of a 2015 case in Glenn County.
Under the plea agreement, defendant and the People agreed several alleged prior prison term enhancements would be dismissed, and defendant would receive a stipulated term of one year (one-third the middle term for vehicle theft) added to his existing sentence in Colusa County. The plea form stated, "This case can add a possible twelve (12) months on to my existing sentence, 6 actual months."
At sentencing, however the sentencing judge, who had not taken defendant's guilty plea, restructured the sentence and did not impose the stipulated sentence. The sentencing judge explained: "It'd be my intent to deny probation . . . . I would choose Glenn County as the primary term. I would sentence him to four years county jail." The court continued to explain that the two Colusa County cases would be subordinate terms, each receiving eight months (one-third the middle), along with the two-year enhancement — resulting in an aggregate seven-year four-month term.
Defense counsel interjected, "We were thinking it was just an additional one-third the mid term, which would be one year to the full thing." The court responded: "I'm not following — I'm not rewarding his conduct by making Colusa County the primary term."
The court then imposed the seven-year four-month aggregate term, which included the four-year upper term for vehicle theft with a prior (§ 666.5, subd. (a)) out of Glenn County. Defendant was not orally advised of his right, under section 1192.5, to withdraw his guilty plea if the trial court withdrew its approval of that plea and the plea form did not adequately advise defendant of this right either.
DISCUSSION
On appeal, defendant contends his sentence exceeded the punishment agreed upon in the plea bargain in this, the Glenn County matter. The People concede the error. Both parties suggest that this court should either enforce the plea agreement or remand with an instruction that the trial court comply with section 1192.5 and allow defendant to withdraw his plea.
"When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon." (People v. Walker (1991) 54 Cal.3d 1013, 1024, overruled on other grounds as stated in People v. Villalobos (2012) 54 Cal.4th 177, 183.) "However, there is an out for the trial court. The court may withdraw its initial approval of the plea at the time of sentencing and decline to impose the agreed upon sentence, 'so long as the parties can be restored to their original positions.' [Citations.] If the court withdraws its initial approval, it must inform the defendant that he or she has the right to withdraw the plea and allow the defendant to do so; it cannot merely alter the terms of the agreement by imposing punishment significantly greater than that originally bargained for. [Citations.] Put another way, the trial court may not 'unilaterally modify[ ] the terms of the bargain without affording . . . an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off.' [Citation.]" (People v. Silva (2016) 247 Cal.App.4th 578, 587.) But the court did not follow this procedure here; nor did the Judicial Council plea form adequately advise defendant of his right to withdraw the plea under section 1192.5. (Id, at pp. 588, 590, fn. 14 [noting that the same Judicial Council plea form "does not inform defendants that the court's approval of the negotiated disposition is not binding[,] that the court could withdraw its approval simply upon 'further consideration' as stated in section 1192.5" and recommending that the standard form be modified].)
Here, we agree with the parties that adding two years, eight months to defendant's negotiated plea significantly exceeded the terms of the agreement which called for a one-year increase to defendant's Colusa County sentence. We will therefore vacate the sentence and direct the trial court to either allow defendant to withdraw his guilty plea or follow the plea agreement. (See People v. Mancheno (1982) 32 Cal.3d 855, 861 [allowing withdrawal of the plea is the appropriate remedy where specifically enforcing the bargain would limit the trial court's sentencing discretion in light of additional information or changed circumstances between plea and sentencing].)
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing.
HULL, Acting P. J.
We concur:
MURRAY, J.
DUARTE, J.