THE PEOPLE v. ZHIRAYR OGANESYAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant Zhirayr Oganesyan entered into a plea agreement under which he would be sentenced to three years' probation.   When Oganesyan failed to appear at the subsequent sentencing hearing, the trial court instead sentenced him to two years in prison.   Because the trial court had no authority to impose a sentence other than that agreed to, we reverse and remand for resentencing.

BACKGROUND

A felony complaint filed on November 23, 2010 charged Oganesyan with count 1, corporal injury to a spouse/cohabitant/child's parent (Pen.Code, § 273.5, subd. (a)); ¹  count 2, misdemeanor vandalism (§ 594, subd. (a));  and count 3, misdemeanor resisting arrest (§ 148, subd. (a)(1)).²  A prior prison term under section 667.5, subdivision (b) was also alleged.

On December 6, 2010, Oganesyan pleaded no contest to counts 1 and 3. Under the plea agreement, he would be sentenced to three years' probation and be required to attend domestic counseling and a drug-treatment program.   The trial court also ordered Oganesyan, who was released from custody, to go to Alcoholics Anonymous at least five days a week before entering the drug or alcohol program.

The trial court put the matter over for sentencing on January 14, 2011, but Oganesyan failed to appear on that day.   Therefore, on January 27, the court, after noting that Oganesyan had failed to appear on the 14th, said the “deal [was] off.”   Oganesyan's counsel explained that his client forgot about the appearance as a result of being bipolar but that he had attended Narcotics Anonymous meetings.   The court, however, sentenced Oganesyan to two years in prison on count 1 and suspended sentence on count 3.

DISCUSSION

I. Defendant is entitled either to be sentenced in accordance with the plea agreement or to withdraw his plea.

Oganesyan contends, and the Attorney General agrees, that the trial court erred by sentencing him to two years in prison, in contravention of the plea agreement.

Section 1192.5 provides in part:  “Where 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.”   Even if a defendant, such as Oganesyan, thereafter fails to appear for sentencing, section 1192.5 does not permit the trial court to “call off the deal” and to impose a sentence other than that previously agreed to.  (People v. Cruz (1988) 44 Cal.3d 1247, 1250.)   This is because the “imposition of an additional or enhanced sentence for a separately chargeable offense [the failure to appear] without the benefit of a trial on that charge, and in the absence of a knowing and intelligent waiver, is clearly offensive to the principles of due process.”  (Id. at p. 1253;  see also People v. Casillas (1997) 60 Cal.App.4th 445, 451–452 [if the parties to the plea agree that there will be a specific sanction for nonappearance, the court may invoke the agreed-upon sanction;  but in the absence of an agreement on a sanction, a defendant who fails to appear at sentencing after entering into a plea agreement is entitled to withdraw the plea if the court refuses to honor it].)

Here, there was neither an agreement that there would be a sanction if Oganesyan failed to appear at the sentencing hearing nor a waiver of Cruz. When the trial court refused to abide by the plea agreement, Oganesyan should have been permitted to withdraw his plea.  (See, e.g., People v. Masloski (2001) 25 Cal.4th 1212, 1217.)   We therefore remand this matter for resentencing in accordance with the plea bargain or, if the trial court chooses not to approve that sentence, to permit Oganesyan to withdraw his plea.³

DISPOSITION

The judgment is reversed and remanded with the direction to sentence defendant in accordance with the plea agreement or, alternatively, to allow defendant to withdraw his plea.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. The facts underlying Oganesyan's crimes are not relevant to the issue before us..  FN2. The facts underlying Oganesyan's crimes are not relevant to the issue before us.

FN3. We note that the clerk's January 27, 2011 minute order incorrectly states that the trial court sentenced defendant to 180 days in jail on count 3 and that the abstract of judgment does not state that the trial court suspended the sentence on count 3. As this matter is being remanded for resentencing, the trial court may address these matters at the resentencing hearing..  FN3. We note that the clerk's January 27, 2011 minute order incorrectly states that the trial court sentenced defendant to 180 days in jail on count 3 and that the abstract of judgment does not state that the trial court suspended the sentence on count 3. As this matter is being remanded for resentencing, the trial court may address these matters at the resentencing hearing.

CROSKEY, Acting P. J. KITCHING, J.