Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FWV702479, Raymond P. Van Stockum, Judge.
George P. Hobson, Jr., for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Santos Turcios Cabral appeals following a guilty plea. He claims his plea agreement provided for the accrual of custody credits at the rate of 50 percent under Penal Code section 2933, but the trial court erroneously imposed a limit on credits of 15 percent under section 2933.1.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pulled a gun from his pants and pointed it at the victim’s chest after the victim asked defendant and others present to turn the volume of their music down. In a felony complaint, defendant was charged with assault with a firearm. (§ 245, subd. (a)(2).) It was further alleged that defendant had one prior conviction for a serious or violent felony. (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d).)
Pursuant to a written plea agreement, defendant pled guilty to count 1 on January 22, 2008. Defendant’s exposure for the assault with the firearm plus the prior violent felony was a total of eight years in state prison (i.e., the upper term of four years doubled to eight years as a result of the prior strike). Although the specific amount is unclear, the record indicates defendant had additional exposure because of another pending case. The plea agreement provided defendant with the favorable sentence of four years in state prison (i.e., the low term of two years doubled to four years as a result of the prior violent felony) plus the dismissal of charges in another case.
On June 4, 2008, defendant filed a motion to withdraw his guilty plea arguing he should be allowed to vacate his plea because his attorney did not advise him that his custody credits would be subject to a limit of 15 percent under section 2933.1 because his criminal history included a prior violent felony. The trial court denied the motion. The trial court then sentenced defendant according to the plea agreement to four years in state prison.
DISCUSSION
Citing only a supposed missing circle around paragraph 10(d) of his written plea agreement form, defendant claims he believed he would be able to accrue custody credits of 50 percent under section 2933, rather than the 15 percent provided in section 2933.1. As a result of this belief, defendant contends he was not sentenced in accordance with the plea agreement. Because he allegedly was not sentenced in accordance with the plea agreement, defendant argues the trial court and the prosecutor breached the plea agreement. He therefore requests a remand for resentencing pursuant to section 2933. Under section 2933, subdivision (a), state prisoners serving time for nonviolent offenses who participate in qualifying work, training, and educational programs can earn “worktime credit” against their sentences at a maximum rate of 50 percent or one day’s credit for each day’s participation. (In re Reeves (2005) 35 Cal.4th 765, 768.) Under subdivision (a) of section 2933.1, “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit....” Subdivision (c) of section 667.5 lists felonies that are considered “violent.” The record indicates defendant has a previous conviction for rape (§ 261, subd. (a)(2)), which is listed as a violent felony at section 667.5, subdivision (c)(3). As a result, his custody credits are statutorily limited to 15 percent under section 2933.1.
“When a guilty plea is entered in exchange for specific benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) “A violation of a plea bargain is not subject to harmless error analysis. A court may not impose punishment significantly greater than that bargained for by finding the defendant would have agreed to the greater punishment had it been made a part of the plea offer.” (Id. at p. 1026.)
In pertinent part, paragraph 10(d) of the written plea agreement form states as follows: “My attorney explained to me that other possible consequences of this plea... may be: (Circle possible consequences) [¶]... [¶] (d) Reduced earning of custody credits.” On defendant’s written plea form, paragraph 10(d) is not circled. Contrary to defendant’s argument, the lack of a circle around paragraph 10(d) does not afford defendant a factual basis for claiming the court and the prosecutor failed to follow the plea agreement with respect to the accrual of custody credits. The only function of paragraph 10, as worded, is to reveal whether defendant’s attorney explained the “other possible consequences of this plea,” including the admission of any prior conviction. Paragraph 10 does nothing to even suggest the parties’ agreement included an accrual of custody credits which would have been in excess of that allowed defendant under section 2933.1 because of his prior violent conviction.
Rather, the substance of the parties’ agreement is shown in paragraph 9 of the written plea form. According to paragraph 9, the parties agreed defendant would plead guilty to count 1, assault with a firearm (§ 245, subd. (a)(2)), in exchange for a four-year prison term (i.e., the low term of two years doubled to four years as a result of his prior strike), plus the dismissal of charges in another case.
The substance of the parties’ agreement as shown on the written plea form is also consistent with the recitation of the terms of the agreement at defendant’s change of plea hearing. During this hearing, the court twice repeated these same specific terms. The court then asked defendant, “Do you understand that’s the agreement?” Defendant responded, “Yes.” The court then sentenced defendant in accordance with the parties’ agreement. As a result, we must reject defendant’s contention the trial court and the prosecutor breached the plea agreement.
Defendant’s briefing and the record suggest defendant may also be arguing that the trial court and his trial attorney failed to advise him of the applicable reduction in custody credits under section 2933.1. However, prior to a guilty plea, the trial court is not required to warn “of a limit on good-time or work-time credits available to the defendant.” (People v. Barella (1999) 20 Cal.4th 261, 272.) Nor is a defendant entitled to withdraw or set aside a guilty plea if the trial court did not advise the defendant of a limit on credits. (Ibid.) In addition, as the People point out, “issues going to the validity of a plea require compliance with section 1237.5.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Defendant has not demonstrated compliance.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.