People v. Son CA3

Filed 10/4/16 P. v. Son CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C080110

Plaintiff and Respondent, (Super. Ct. No. NCR92949, NCR93064, NCR93596) v.

BRIAN KEITH SON,

Defendant and Appellant.

Pursuant to a negotiated disposition of three separate cases, defendant Brian Keith Son pled guilty to evading a peace officer with willful or wanton disregard for the safety of other persons or property, possession of methamphetamine for sale, and failure to appear while on bail. He also admitted he had served three prior prison terms and had committed a felony while released on bail or his own recognizance. The trial court sentenced defendant to an aggregate term of nine years four months in prison. On appeal, defendant contends the trial court violated the terms of his plea agreement by sentencing him to prison instead of suspending his sentence and placing

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him on probation. We conclude the trial court erred, and therefore we reverse and remand the matter. BACKGROUND In June 2015, defendant entered into a written agreement to plead guilty to three felony charges and admit certain sentence enhancement allegations to resolve three separate cases. In exchange for his pleas and admissions, the People agreed to dismiss the remaining charges. In accordance with the plea agreement, the case was to be referred to the adult felon drug court (drug court) for consideration of defendant’s eligibility for a substance abuse program. Under the terms of the plea agreement, defendant would be sentenced to prison for nine years four months, unless he was accepted into the drug court program. If he was accepted into the drug court program, the nine-year four-month-sentence would be suspended and defendant would be placed on probation.1 After confirming with the parties that this was the agreement and before accepting defendant’s guilty pleas, the trial court asked defendant whether he understood that, “[W]hether or not you get drug court is solely up to the Judge.” Defendant responded in the affirmative. However, neither the prosecutor nor defense counsel confirmed this was an element of the parties’ agreement.2 Prior to the sentencing hearing, a drug court assessment was filed, indicating defendant had been accepted into the AFDC program. The assessment stated defendant was a nonviolent repeat offender with underlying substance abuse issues. It further stated