P. v. Foster CA2/6

Filed 7/18/13 P. v. Foster CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B243813 (Super. Ct. No. 2012021654) Plaintiff and Respondent, (Ventura County) v. CHAD DAVID FOSTER, Defendant and Appellant.

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 1 sentenced to felony jail (Pen. Code, § 1170, subd. (h)). 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.)

1 All statutory references are to the Penal Code unless otherwise stated.

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 sentencing hearing, the trial court 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.