Opinion
A112237
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. JAIME GUZMAN, Defendant and Appellant.
Defendant Jaime Guzman appeals from a judgment below, contending that the trial court failed to give him the opportunity to withdraw his no contest plea when it rejected a term of a negotiated disposition, thereby violating defendants rights pursuant to Penal Code section 1192.5. We affirm the judgment.
All statutory references herein are to the Penal Code unless stated otherwise.
BACKGROUND
An information was filed in San Mateo Superior Court on June 10, 2004, charging defendant with violating section 290, subdivision (f)(1), by failing to inform the law enforcement agency or agencies with whom he last registered as a sex offender of his new address, having been previously convicted of a violation of section 288, subdivision (a). Certain prior convictions were also alleged.
On October 5, 2005, pursuant to a negotiated disposition, defendant moved to change his plea, asking the courts permission to plead nolo contendere to the count against him, and to admit a prior strike conviction. Defendant executed a plea form in support of his motion to change his plea, which his attorney also executed stating that he explained the declarations contents to defendant, and to which the People concurred. Defendant declared in the form that he had not been induced to change his plea by any promise or representation except for a 16-month term of commitment to the California Department of Corrections (CDC), to run consecutive to a present CDC term, and a credit of 132 days.
At the hearing, defendants attorney submitted the plea form to the court. Defendant answered affirmatively to the courts questions about his waiver of rights, including to the question, "did you read this plea form carefully, understand everything on the plea form and sign it?" Defendant then made a no contest plea to the charge that he violated Penal Code section 290, subdivision (f)(1), and admitted to a previous serious felony strike, which the court accepted. After the People stipulated to a factual basis for the plea, the court found defendant guilty.
After further waivers, the court announced its sentence, which was to deny probation and sentence defendant to a 16-month term, order sex offender registration and certain fines and fees, and credit defendant with one day of time served, and asked defendant if he accepted the sentence. Defendants counsel requested credit for the time defendant had been in custody, and the court indicated he already was sentenced to CDC. After granting the Peoples motion to dismiss the remaining counts, the court again asked defendant if he accepted the sentence, leading to the following exchange:
"THE DEFENDANT: I was told Id get 132 credits, sir
"THE COURT: No, thats not true.
"THE DEFENDANT: —each with the 1381 that I filed.
"THE COURT: No, its not true. Youre serving a sentence from Santa Clara.
"THE DEFENDANT: Im serving a sentence from Santa Clara, so consecutive, getting credits that were served at the same time?
"THE COURT: Right. So do you accept it or not?
"This is an error on the plea form, by the way, and I didnt state that as part of the plea.
"Do you accept the sentence?
"DEFENDANT: Yeah. Yes."
The court initialed its cross-out of the reference to 132 days credit on the plea form and indicated its acceptance of the plea on the plea form.
Defendant filed a timely appeal alleging various wrongs done to him after his plea was entered.
DISCUSSION
Defendant argues that he was denied the benefit of his "plea bargain" because the court did not give him 132 days of credit, and he should have been given an opportunity to withdraw his plea. Defendant waived this argument by his failure to ask to withdraw his plea or otherwise object to the sentence below.
Defendant acknowledges that "[t]he court may have been right that appellant was not entitled to the credit."
Section 1192.5 states in relevant part:
"Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony . . . the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it.
"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.
"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 his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea." (§ 1192.5.)
The parties agree that the plea form reflected a promise to defendant that he would receive 132 days of credit as part of their plea bargain, and that the courts denial of that credit violated the bargain. Defendant argues that the trial court, pursuant to section 1192.5, should have given him the opportunity to withdraw his plea when it informed him that he would not be awarded 132 days credit. This is not correct. As has been previously determined regarding section 1192.5:
"[T]here is no requirement that the trial court `offer the opportunity to withdraw the plea at the sentencing hearing. Rather, appellant was required to move for withdrawal of his plea at the sentencing hearing, and he waived his right to object to the deviation from the plea bargain by not doing so. When a court imposes a sentence that is a substantial deviation from the plea bargain, as here, `we cannot assume defendant knew he had a right to withdraw his plea [absent a section 1192.5 admonition]. But when the admonition is given, and the defendant does not ask to withdraw the plea or otherwise object to the sentence, he has waived the right to complain of the sentence later." (People v. Murray (1995) 32 Cal.App.4th 1539, 1546, quoting People v. Walker (1991) 43 Cal.3d 1013, 1026.)
At hearing, defendant did not ask to withdraw his plea or otherwise object to the courts proposed sentence. His counsel merely requested credit for the time defendant was in custody that the court indicated was inappropriate, and defendant then stated that he was told he would receive 132 days of credit. Therefore, he has waived his argument on appeal if he was properly informed below of his right to withdraw his plea. We find that he was so informed.
The plea form executed by defendant included his declaration, following his recitation of the sentence terms agreed to between the parties, as follows:
"I Do understand that the matter of probation and sentence is to be determined solely by the court and will not be decided until the report and recommendation by the Probation Department is considered.
The word "Do" is handwritten on the form.
"The court reserves the right to withdraw its consent to any sentence limitation agreement; and, in the event, I will be permitted to withdraw my plea(s) of guilty or nolo contendere and all charges will be reinstated."
Defendant indicated to the court that he had read the plea form "carefully," understood "everything" on it, and signed it. His counsel represented that he had explained the forms contents to defendant.
The plea forms written advisement was sufficient to satisfy section 1192.5s requirements. Our Supreme Court has held that, under normal circumstances, a validly executed waiver form is a proper substitute for verbal admonition by the court of his constitutional rights in assessing the voluntariness of a plea of guilty. (In re Ibarra (1983) 34 Cal.3d 277, 285-286.) The Supreme Court stated: "A sufficient waiver form can be a great aid to a defendant in outlining those rights. The defense attorney, who is already subject to a duty to explain the constitutional rights outlined in a proper waiver form to his client prior to the clients entering a plea, may even find it desirable to refer to such a form. Thus, a defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney. . . . [¶] . . . So long as the waiver form contains sufficient information, and both the defendant and his counsel attest to its valid execution, the judge may, in his discretion, dispense with further explanation to the defendant of his rights." (Id. at pp. 285-286.)
Thus, cases involving circumstances similar to the present case have determined that written advisements are sufficient. An alien who signs a change of plea form containing an immigration advisement mandated by section 1016.5, but who does not receive the courts verbal advisement, is considered sufficiently advised. (People v. Ramirez (1999) 71 Cal.App.4th 519; see also People v. Quesada (1991) 230 Cal.App.3d 525 [§ 1016.5 satisfied by an advisement contained in a written plea form executed by defendant, but not given orally by the court], superseded by statute on another ground as explained in People v. Totari (2003) 111 Cal.App.4th 1202, 1207, fn. 5.)
Defendant argues that the plea form did not contain a sufficient advisement because it indicated only that defendant would be permitted to withdraw his no contest plea if the court withdrew its consent to "any sentence limitation agreement." Defendant argues that this meant he would be permitted to withdraw his plea only if the court sentenced him to more than 16 months, but not necessarily if the court rejected the parties agreement regarding credits. We disagree. Read in the context of the plea form, the phrase can only be interpreted to mean the entirety of the agreement between the parties that was recited therein and presented to the court for its consent.
We find that defendant was sufficiently advised of his right to withdraw his plea pursuant to section 1192.5, but failed to ask to withdraw his plea or otherwise object to the courts sentence, even when the court asked him whether or not he accepted the sentence. Therefore, he waived any right to argue further that his section 1192.5 rights were violated.
DISPOSITION
The judgment is affirmed.
We concur:
HAERLE, Acting P.J.
RICHMAN, J.