P. v. Young 3/24/05 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D044200

Case Date: 06/29/2005

Preview:Filed 3/24/05 P. v. Young CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. RONALD D. YOUNG, Defendant and Appellant.

D044200, D044662

(Super. Ct. No. SCS178035)

CONSOLIDATED APPEALS from an order and a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser and Raymond Edwards, Jr., Judges. Appeal from the order (D044200) dismissed as moot. Judgment affirmed in part, reversed in part.

Ronald D. Young pleaded guilty to one count of false imprisonment by violence, menace, fraud or deceit. Under the plea agreement, Young was to receive probation subject to certain conditions, including his completion of a 90-day residential drug treatment program, and was allowed to seek a reduction of the felony to a misdemeanor after 18 months. At the sentencing hearing, the court imposed a three-year upper term sentence and

stayed execution before placing Young on probation and imposing the agreed-upon conditions. Young appeals from the court's order imposing sentence before granting probation, arguing that the imposition of sentence deprived him of the benefit of his plea bargain because it precluded him from seeking a reduction of the felony to a misdemeanor in the future. He also appeals the judgment insofar as the court imposed an upper-term sentence as violative of his right to a jury trial under the Sixth Amendment to the United States Constitution. We reject the People's contentions that Young cannot raise his challenges to the order on appeal, but conclude that Young's subsequent violation of the conditions of his probation renders his appeal from the court's order moot and thus dismiss that appeal (D044200). Because we find merit in Young's constitutional challenge to the sentence imposed in the judgment, however, we reverse the judgment in that regard and remand the matter for resentencing. Otherwise we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In October 2003, the district attorney filed an information charging Young with two counts of making a criminal threat and one count each of false imprisonment by violence, menace, fraud or deceit, felony child abuse, cruelty to a child and resisting an officer; the information also alleged that Young had three prior felonies and had served two prior prison terms. In January 2004, Young pleaded guilty to the false imprisonment count pursuant to an agreement that the court would release him to a 90-day residential drug treatment program as soon as a bed was available and that he could seek a reduction of the felony to a misdemeanor after 18 months. (All relevant dates are in 2004 except as otherwise noted.) At the change of plea hearing, the court dismissed the remaining counts against Young. 2

On January 26, Young was released from custody and entered a residential drug rehabilitation program. On February 9, Judge Jeffrey Fraser sentenced Young to three years in prison, but stayed the execution of the sentence and placed Young on probation, subject to his compliance with various conditions, including that he successfully complete a 90-day drug treatment program, submit to warrantless searches as required by his probation officer, not possess weapons or ammunition and not use drugs or alcohol. Young filed a notice of appeal from the court's order granting probation and requested a certificate of probable cause, which Judge Fraser denied. On February 19, Young was terminated from the residential drug treatment program for failing to comply with its requirements. Young was referred by his probation officer to an outpatient drug program to assist him in complying with a reunification order issued by the juvenile court in a separate proceeding relating to his children; the officer also instructed Young to seek enrollment in another residential treatment program pending a hearing on his probation violation. Young enrolled in the outpatient program and put his name on a waiting list for a residential treatment program, but dropped out of the outpatient program after a short period of time and, in early May, was removed from the residential program waiting list for failing to maintain required contact with the facility. He also failed to attend parenting classes and therapy sessions required by the juvenile court's reunification plan. On May 13, probation officers arrested Young for violating his probation and, over Young's objection, searched the home pursuant to the probation search condition. They found an empty holster, gun-cleaning equipment and a partially consumed bottle of beer in the bedroom Young shared with his girlfriend and nunchakus in another room of the home. 3

The officers took Young to the police station and while he was awaiting booking, Young got verbally aggressive with one of them. In June, Judge Raymond Edwards, Jr. held an evidentiary hearing and found that Young had violated his probation by failing to participate in and complete a residential drug treatment program, failing to comply with the juvenile court's reunification order and making threats against another person. Judge Edwards revoked Young's probation, lifted the stay on the sentence previously imposed by Judge Fraser and entered judgment sentencing Young to three years in prison. Young appeals. DISCUSSION 1. Imposition of Sentence Before Granting Probation "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." (People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker); see Santobello v. New York (1971) 404 U.S. 257, 262 [once his plea agreement is accepted by the court, the defendant has a due process right to be sentenced in accordance with the agreement].) A court may not impose punishment that significantly exceeds that to which the parties agreed and a defendant is entitled to relief from a variance that is significant in light of the plea bargain as a whole. (Walker, supra, 54 Cal.3d at p. 1024.) Here, Young complains that the trial court's imposition of sentence prior to granting him probation violated his plea agreement because the court could not thereafter reduce the felony to a misdemeanor.

4

The People agree that the law supports the merits of Young's argument (see Pen. Code,

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