Error and/or relief
The defendant entered into a plea agreement that stipulated the length of his sentence and how it was to be served (a split sentence under Realignment). When he was eventually sentenced, the court deviated from that agreed-on sentence. The defendand appealed. While the appeal was pending, the trial court and parties attempted to modify the judgment in accordance with the plea agreement. Because the defendant was never advised of his right to withdraw his plea if the court chose to not abide by the agreed sentence under section 1192.5, the matter is reversed to allow the defendant to withdraw his guilty plea. The trial court had no jurisdiction to modify the judgment while the appeal was pending.
First Holding:
A plea of guilty or nolo contendere may specify the punishment. Where, as here, the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.
If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The advisement required by section 1192.5(c) was not given here. When the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.
Authority:
PEN 1192.5
People v. Silva (2016) 247 Cal.App.4th 578, 589
People v. Walker (1991) 54 Cal.3d 1013, 1024–1025 [overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183]
Second Holding:
The three-year prison sentence originally imposed is more severe than the agreed-upon sentence of two years in county jail with one year of mandatory supervision. There is a qualitative difference between an inmate in actual prison custody and a felon released in the community under mandatory supervision.
Authority:
People v. Segura (2008) 44 Cal.4th 921, 935 [length of jail term is significant]
People v. Silva (2016) 247 Cal.App.4th 578, 591–592 [30-day jail sentence consecutive to agreed-upon sentence allowed defendant to withdraw plea]
Wofford v. Superior Court (2014) 230 Cal.App.4th 1023, 1037
Third Holding:
The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. Thus, action by the trial court while an appeal is pending is null and void. The purported changes to the sentence that were made while appeals in this matter were pending are thus void.
Authority:
People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473
Fourth Holding:
While an appeal is pending, a trial court has inherent power to correct clerical errors in its records, including correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Here the court had the power to correct the erroneous section designation in the original abstract. But it did not have the power to change the sentence while the appeals were pending. Under such circumstances, the proper procedure is to reverse the void judgment rather than dismiss the appeal.
Authority:
People v. Alanis (2008) 158 Cal.App.4th 1467, 1473-1474