Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge, Super. Ct. No. CR81851
McCONNELL, P. J.
After violating his parole, Cassius Kim Collins was sentenced to six years in prison for a 1986 conviction of committing a lewd and lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) Collins appeals, contending the court violated the terms of his 1986 plea bargain agreement when it committed him to prison without first ordering a diagnostic examination under section 1203.03. We affirm the judgment.
Statutory references are to the Penal Code.
FACTS
In July 1986, Collins, under a negotiated plea bargain, admitted to one count of committing a lewd and lascivious act upon a child under the age of 14. In exchange for Collins's admission of guilt, the prosecution dismissed all other counts and allegations and promised Collins a diagnostic evaluation before the imposition of a prison sentence.
In September 1986, rather than sending Collins to prison for a diagnostic evaluation, the trial court placed Collins on probation for five years. As a condition of probation, he was ordered to serve 365 days in local custody.
Collins was released from custody in March 1987. Soon thereafter, he violated his probation by absconding to Oregon. Consequently, his probation was revoked and an arrest warrant issued in September 1987. After living in Oregon for approximately a year, Collins moved to Florida, remaining there until 2001. Thereafter he moved to Pennsylvania, where he was arrested for driving under the influence in July 2006. Upon discovery of Collins's outstanding arrest warrant, the authorities in Pennsylvania extradited Collins to California. During his 19-year abscondment from probation, Collins was convicted of drug possession (1993), battery (1995), false imprisonment (1998), and driving under the influence (2001).
A probation revocation hearing was held on October 24, 2006. The trial court formally revoked Collins's probation after finding he had violated probation terms by failing to remain law abiding, to report to the probation department, and to register as a sex offender under section 290. In November 2006 the trial court sentenced Collins to state prison for six years for his 1986 conviction of committing lewd and lascivious acts on a child.
DISCUSSION
Collins contends the court violated the terms of his 1986 plea bargain when, in 2006, it sentenced him to prison without first ordering a section 1203.03 diagnostic study. Under the 1986 plea bargain, it was agreed that Collins would receive a diagnostic study prior to the imposition of a prison sentence.
In 1986, before sentencing, Collins's probation officer reported that were his case referred to the Department of Corrections, the Department would probably recommend probation. With that, the probation officer stated "it is suggested that in lieu of a diagnostic study that the Court consider a five year grant of probation." (Italics added.) The trial court agreed and put Collins on probation.
The inclusion of "in lieu" in the probation officer's report demonstrates that probation was considered an alternative to the diagnostic study as a prerequisite to a prison sentence. Under the terms of the plea bargain, the trial court had the option of sentencing him to prison for up to eight years, after a diagnostic study being performed. The trial court's decision to put Collins on probation rendered the need for a diagnostic exam moot.
Collins received the benefit of his plea bargain in 1986 when the trial court dismissed several charges, struck several enhancement allegations, and placed him on probation rather than imposing a prison sentence. Hence, in 2006, the court could sentence Collins to prison without first ordering a diagnostic exam. At that point there was " 'no plea bargain involved because the bargain contemplated the initial sentencing proceeding only.' " (People v. Hopson (1993) 13 Cal.App.4th 1, 2.) This Court has held: " 'A consummated plea bargain is not a perpetual license to a defendant to violate his probation. The plea bargain does not insulate a defendant from the consequences of his future misconduct. "A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever." ' " (Id. at p. 3)
Collins's plea bargain form informed him of the consequences of his plea. The form states, "I understand that if I violate any terms or conditions of probation I can be sent to State Prison for the maximum term."
Given our holding on the merits, we decline to determine whether Collins waived the right to a diagnostic exam when he failed to raise an objection before the 2006 sentencing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., AARON, J.