Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Nos. 04CM2471, 05CM4414 and 07CM2005, Timothy S. Buckley, Judge. (Retired Associate Justice of the Court of Appeal, Fifth District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Harry I. Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, John G. McLean and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J.; Levy, J.; and Gomes, J.
Appellant, Alfredo Soto, challenges the sentence imposed on his guilty plea. According to appellant, he was denied the benefit of his plea bargain when the prosecutor argued for an upper term. Appellant asserts that there had been a previous agreement to recommend the midterm. Appellant further contends that his sentence to the upper term was contrary to his constitutional right to have any facts increasing his sentence submitted to a jury to determine beyond a reasonable doubt.
As discussed below, appellant was sentenced in accordance with the plea bargain. Further, since imposition of the upper term was based on appellant’s prior criminal history, appellant was not denied his right to a jury trial. Accordingly, the judgment will be affirmed.
BACKGROUND
In July 2004, appellant entered a guilty plea to felony driving under the influence and causing bodily injury. (Veh. Code, § 23153, subd. (b).) Appellant also admitted a prior driving under the influence conviction. When sentenced, appellant was placed on felony probation.
In December 2005, appellant entered a no contest plea to one count of burglary and admitted that he had been armed with a shotgun. (Pen. Code, §§ 459 and 12022, subd. (a)(1).) This plea also constituted a violation of the terms and conditions of his probation. Nevertheless, appellant was reinstated on felony probation.
In July 2007, appellant was charged with unlawfully carrying a dirk or dagger on his person. (Pen. Code, § 12020, subd. (a)(4).)
On July 23, 2007, the pretrial settlement conference was held. Appellant’s counsel stated that the People had made an offer that if appellant pled guilty as charged, “they would recommend two years or the middle term on his violation of probation case plus an additional eight months on the 12020(a)(4) allegation.” However, the offer was not accepted that day and the matter was continued.
On July 31, 2007, appellant entered his guilty plea to a violation of Penal Code section 12020, subdivision (a)(4), unlawfully carrying a dirk or dagger on his person. This guilty plea also triggered probation violations for the two prior convictions.
The plea agreement, as stated on the record by defense counsel, was that “at the time of sentencing on the two felony violations of probation the People would be recommending … no additional time on the 12020(a)(4) violation.” The prosecutor then confirmed that the “People would be requesting a concurrent time with the other probation violation cases at the time of sentencing.” Appellant was also advised that the trial court was not bound by the agreement and that he could be sentenced to five years and four months. When asked by the court whether any other plea agreement or promise had been made to him, appellant answered “No.” The court and parties then confirmed that, at the time of sentencing, the “People will recommend concurrent time.”
Appellant was sentenced on August 23, 2007. Per the agreement, the prosecutor recommended concurrent time for the unlawfully carrying a dirk or dagger count. However, the prosecutor also recommended the aggravated term on the burglary and driving under the influence cases.
The trial court then sentenced appellant to the upper term of three years on the burglary case with a one-year weapon enhancement for a total of four years. Time imposed on the two remaining cases was ordered to run concurrent. With respect to the aggravated term, the court explained, “I’m well aware of the Cunningham case and that is the reason why I’m … using as the primary circumstance in aggravation[,] the circumstances in aggravation, the prior conviction and the fact that he was on probation for the drunk driving .…”
DISCUSSION
1. The plea agreement was not violated.
Appellant contends that the prosecutor violated the terms of the plea agreement when she did not recommend the midterm for the probation violations. However, when appellant entered his plea, the only promise made by the prosecutor was that she would recommend concurrent time. The earlier discussions regarding the midterm were not made part of the bargain on July 31.
A prosecutor may withdraw promised terms of a plea bargain before the actual entry of the guilty plea by the defendant. (People v. Rhoden (1999) 75 Cal.App.4th 1346, 1352.) A plea agreement is only an offer. Thus, the prosecutor may rescind it up until the defendant enters a court-approved guilty plea. (Id. at p. 1353.) Until the court has formally accepted the plea, no one is bound by it. (Ibid.)
Here, although there may have been discussions between defense counsel and the prosecutor regarding a recommendation of the midterm, that agreement was not made part of the court-approved guilty plea. Accordingly, the prosecutor was not bound by that earlier discussion. When the prosecutor recommended concurrent time, she fulfilled her obligation under the terms of the bargain. Thus, no breach of the plea agreement occurred.
2. Appellant was properly sentenced to the upper term.
In sentencing appellant to the upper term, the trial court relied on appellant’s prior convictions and on his being on probation at the time of the offense as factors in aggravation. Appellant contends that in doing so, the trial court violated his constitutional right to have any facts increasing his sentence submitted to a jury to determine beyond a reasonable doubt.
A trial court may rely on the defendant’s criminal history to impose an upper term. A jury determination is not required. (People v. Black (2007) 41 Cal.4th 799, 818-820.) Thus, no error occurred.
DISPOSITION
The judgment is affirmed.