P. v. Traver CA3

Filed 7/3/13 P. v. Traver CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Trinity) ----

THE PEOPLE,

Plaintiff and Respondent, C072663

v. (Super. Ct. No. 12F0137)

RICHARD DONALD TRAVER II,

Defendant and Appellant.

Pursuant to a plea agreement, defendant Richard Donald Traver II pleaded no contest to one count of second degree commercial burglary. In exchange, the agreement provided, among other things, that the remaining counts would be dismissed with a Harvey1 waiver; that defendant would receive felony probation with up to one year in jail as a condition of probation, but if he violated probation the trial court could sentence him

1 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

1

up to a maximum of three years in jail; and that at sentencing the trial court could withdraw approval of the plea agreement, but if it did so, defendant would be permitted to withdraw his plea. At sentencing, the trial court found defendant ineligible for probation, sentenced him to three years in county jail, and denied defendant’s request to withdraw his plea. Defendant now contends the trial court violated the terms of his plea agreement. The People agree, and so do we. We will remand this matter to the trial court for further proceedings. BACKGROUND Charged with four counts of second degree commercial burglary and four counts of misdemeanor grand theft, defendant entered into a plea agreement by which he agreed to plead no contest to one count of second degree burglary (Pen. Code, § 459)2 in exchange for the dismissal of the remaining counts with a Harvey waiver and other provisions set forth in a written change of plea form. The written change of plea form was signed by defendant, defense counsel, the prosecutor and the trial court. As relevant to this appeal, the agreement bears defendant’s initials indicating his agreement with the following paragraphs: “2. (a) I understand that the maximum sentence of imprisonment in county jail that I could receive pursuant to § 1170(h) is 3 years”; and “3. . . . [¶] I will receive felony probation with up to one year in jail as a condition of probation. If I later violate probation, the Court can sentence me up to the maximum indicated in item[] 2, above.” Under the heading “ADDITIONAL ADVISEMENTS,” defendant indicated his agreement that “[a]t the time of sentencing, the sentencing judge may withdraw approval of this plea. If the judge does so, I will be permitted to withdraw my plea.”