Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. Nos. CR110380, CR30469, CR146225, CR104519
Marchiano, P. J.
Defendant Teodoro Eliodoro Martinez appeals from judgments imposed after he entered a no contest plea in Napa County Superior Court No. CR146225, and admitted violating probation in three other cases (Napa County Superior Court Nos. CR30469, CR104519, and CR110830). He argues that there were grounds to set aside his no contest plea, and raises sentencing errors.
Defendant received the prison term he agreed to accept when he entered his no contest plea, which enabled him to avoid a much longer potential sentence. We find no basis to invalidate the plea, and no sentencing errors other than imposition of improper fines in case No. CR104519. We therefore modify the judgment in that case, and otherwise affirm.
I. BACKGROUND
Defendant admitted the probation violations at a hearing in April 2009; those cases were later dropped from the calendar to trail the new case, No. CR146225. Defendant was charged in No. CR146225 with four offenses against Jane Doe (Doe): two counts of lewd acts on a child (Pen. Code, § 288, subd. (a) [count one-touching, count two-kissing]), continuous sexual abuse (§ 288.5), and sexual battery by restraint (§ 243.4, subd. (a)).
Subsequent statutory references are to the Penal Code.
Doe testified at the preliminary hearing that defendant, her mother’s boyfriend, kissed and touched her inappropriately from the time she was six or seven years old up to age 14. She clearly remembered six specific incidents. On the first occasion, defendant pushed her against the wall, kissed her on her neck and mouth, touched her breasts under her clothes, pulled her pants down and rubbed her thigh. He said that he would hurt her mother if she reported what happened. Defendant’s behavior in other incidents included touching Doe’s vaginal area, exposing his penis and telling her to touch it, slapping her, and pushing and pinning her down.
Defendant entered his no contest plea at a hearing on November 3, 2009. Defendant executed a plea form on that date, which set forth the terms of the plea bargain. He agreed to plead no contest to count one in exchange for dismissal of the remaining counts, with the understanding that the conviction would constitute a strike, and that he would be sentenced to ten years eight months in prison, representing the aggravated term of eight years on the current offense, and an additional two years eight months on the prior convictions. Defendant placed his initials beside statements confirming, among other things, that there was a factual basis for his plea in the police report, and that he would be required to register as a sex offender. The form included a statement signed by defense counsel that the police report provided a factual basis for the plea, and a finding initialed by the court that the plea had a factual basis.
The initials on this portion of the form are faint but discernable in the clerk’s transcript. The probation report set forth information from the police report in the case, which described six incidents of molestation recounted by Doe. The report also indicated that defendant, in a pretext phone call and a police interview, had admitted having fondled and touched Doe inappropriately.
At the plea hearing, defendant stated that he had no questions about the plea form, but added, “They’re giving me too much time for what I did.” After verifying, among other things, that defendant understood the sentence he would receive, the court asked him whether he had “any questions about anything that’s going on here today, ” and the following discussion ensued: “The Defendant: No, just that they’re giving me a lot of time for what I did, a lot of time. [¶] The Court: I understand that. Is that something you want to do today, go ahead and plead and get that time? [¶] The Defendant: I am guilty, but I didn’t do it intentionally. [¶] [Defense Counsel]: Okay. Do you want to do this or not? [¶] The Defendant: Yes. [¶] [Defense Counsel]: Do you have any questions for the Judge about what’s happening[] in court? [¶] The Defendant: No. [¶] [Defense Counsel]: No questions, your Honor.” The court then proceeded to take the plea.
The probation report stated that defendant objected to the length of his sentence and wanted a new attorney, and the court held a Marsden (People v. Marsden (1970) 2 Cal.3d 118) hearing on the date set for sentencing. At the hearing, defendant’s counsel in No. CR146225 stated that she had talked to defendant about sex offender registration, and advised him that he would be required to register for life. Defendant denied that counsel told him about the registration requirement; he initialed the mandatory registration section of the plea form “because they told me here is where you put your initials.” The court denied the Marsden motion, but appointed substitute counsel to investigate grounds for withdrawal of defendant’s plea.
Defendant moved to withdraw his plea, professing his innocence and arguing that he did not voluntarily or knowingly waive his rights. In the motion, defendant acknowledged that he had “agreed that pursuant to California [Rules of Court, rule] 4.412 he would be sentenced to the high term of 8 years. It was further agreed that on the probation violations that he had previously admitted, he would receive consecutive terms totaling 2 years 8 months.” The motion was denied, and defendant was sentenced to the prison term provided in the plea agreement.
II. DISCUSSION
A. Factual Basis for the Plea
Defendant argues that the court erred in failing to investigate whether there was a factual basis for his no contest plea to the lewd touching offense. When taking a plea that is conditioned on a particular disposition, the court must make an inquiry and satisfy itself that the plea has a factual basis. (§ 1192.5; People v. Holmes (2004) 32 Cal.4th 432, 435 (Holmes).) The court can fulfill this duty by asking defense counsel to stipulate that a particular document such as a police report or preliminary hearing transcript provides an adequate factual basis. (Holmes, supra, 32 Cal.4th at p. 436.) Failure to make an adequate inquiry is harmless error “where the contents of the record support a finding of a factual basis for the conditional plea.” (Id. at p. 443.)
Here, the court fulfilled its duty of inquiry by obtaining a plea form in which defendant and defense counsel averred that the police report provided a factual basis for the plea. Any inadequacy in the court’s inquiry would have been harmless in any event, because the preliminary hearing transcript and the police report established that the plea had a factual basis.
B. Lifetime Sex Offender Registration
Defendant submits that the court erred in denying his motion to withdraw his no contest plea because the court failed to advise him that he would have a lifelong obligation to register as a sex offender. The court has discretion to permit a defendant to withdraw a plea on a showing of good cause by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) “Good cause” means “[m]istake, ignorance or any other factor overcoming the exercise of free judgment.” (Ibid.) The court is required to advise the defendant of the direct consequences of a no contest plea before accepting it. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481 (Zaidi).) This duty includes advice that the defendant will be required to register as a sex offender, and that the requirement “will be for the duration of the defendant’s life.” (Ibid.) Defendant notes that sex offender registration was not mentioned at the plea hearing, and that the plea form he executed did not disclose that the registration requirement would be lifelong.
Defendant’s argument concerning the registration requirement was not advanced below in connection with the motion to withdraw the plea, and was thereby forfeited. Moreover, no prejudice has been shown. The court could credit defense counsel’s representation at the Marsden hearing that she advised defendant of the lifetime registration requirement (see People v. Caruso (1959) 174 Cal.App.2d 624, 636 [court not obliged to believe defendant’s claim to the contrary]), and defendant never asserted that his plea would have been different but for his alleged ignorance of that requirement (compare, Zaidi, supra, 147 Cal.App.4th at p. 1480).
C. Section 654
Defendant argues that the consecutive sentences he received for his offenses in case No. CR104519 violated section 654, which prohibits multiple punishment for a single act or an indivisible course of conduct with a single objective. (People v. Coleman (1989) 48 Cal.3d 112, 162 (Coleman).) However, this claim was abandoned below under California Rules of Court, rule 4.412(b), which provides: “By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.”
The section 654 argument would fail even if it had been preserved.
Defendant pleaded no contest in No. CR104519 to violating sections 236 (false imprisonment) and 422 (criminal threat). According to the probation report, the crimes occurred during “a family fight.” Defendant told the probation officer that “the victim wanted to go out dancing and drinking and he did not want her to do so.” The victim told the police that defendant kept her in their bedroom against her will for over one hour, and pushed her onto the bed when she tried to leave. The victim said that defendant threatened to shoot her in the head if she called the police. She said that she was afraid for her life and believed that defendant was capable of killing her.
This record supported a finding that the crimes were committed for different objectives: defendant falsely imprisoned the victim to prevent her from going out dancing and drinking; and he threatened the victim to prevent her from reporting the false imprisonment to the police. (E.g., Coleman, supra, 48 Cal.3d at pp. 162−163 [defendant had multiple objectives when he stabbed victim after robbing her to prevent her from sounding the alarm].)
D. Local Conduct Credit
Defendant was awarded presentence conduct credit on all of the offenses pursuant to section 2933.1, which limits such credit to 15 percent of actual time served if the defendant is convicted of a violent felony specified in section 667.5, such as a violation of section 288, subdivision (a). (§§ 2933.1, subds. (a) & (c), 667.5, subd. (c)(6).) Defendant contends that his conduct credit for time served on his prior offenses should not have been subject to the 15 percent limitation, because his rights to credit on those offenses “vested” when he “admitted violations of probation [in those cases] and stood ready to be sentenced, ” and he “could not be divested of those rights by a case not filed until a month later.”
This argument lacks merit. If a defendant is sentenced to prison on a violent felony and receives consecutive sentences on other offenses, the 15 percent limitation applies to time served on all of the offenses (People v. Ramos (1996) 50 Cal.App.4th 810, 817), even if that time was served before the conviction of the violent felony (People v. Marichalar (2003) 144 Cal.App.4th 1331, 1337).
E. Section 1203.097 Fees
In case No. CR104519, defendant was ordered to pay a $200 domestic violence fine, and a $100 fine to a battered women’s shelter, pursuant to subdivisions (a)(5) and (a)(11)(A), respectively, of section 1203.097. Defendant argues, the People concede, and we agree that these fines must be stricken because defendant was not granted probation. (§ 1203.097, subd. (a) [statute sets forth terms of probation].)
III. DISPOSITION
The judgment in No. CR104519 is modified to strike the fines imposed pursuant to section 1203.097; as so modified, that judgment is affirmed. The judgments in the other cases are affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modification to the Department of Corrections and Rehabilitation.
We concur: Dondero, J., Banke, J.