Opinion
F041232.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. KENNETH MARIO HERNANDEZ, Defendant and Appellant.
James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Lloyd G. Carter and Robert P. Whitlock, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J.; Levy, J.; and Cornell, J.
Appellant, Kenneth Mario Hernandez, pleaded no contest to possession of a prohibited weapon (Pen. Code, § 12020, subd. (a)(1)), misdemeanor display of a weapon (& sect; 417), transportation of a controlled substance (Health & Saf. Code, § 11379), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and resisting arrest (§ 148) in exchange for felony probation and a 12-month sentence. At the change of plea hearing, appellants counsel indicated that appellant wished to be released prior to sentencing and agreed that if he violated certain conditions of his release he would not receive the benefit of his plea. Appellant apparently violated the agreement and, after a hearing on the issue, the trial court sentenced appellant to a term of four years and eight months.
All further references are to the Penal Code unless otherwise indicated.
Appellant contends the trial court erred in failing to state reasons for imposing the maximum term during the sentencing hearing. We conclude that appellant agreed to the term; therefore, the court committed no error.
DISCUSSION
I. Appellant was properly sentenced.
Appellant was charged with a number of counts in two separate cases. He was represented by Martin Grilli on one case and Russell Whiting on the other. At the change of plea hearing, Grilli explained to the court that appellant had agreed to enter no contest pleas on a number of the charges in exchange for probation and 12 months jail time. In addition, counsel informed the court that appellant wished to be released on a Cruz waiver and agreed that "if he fails to show up to probation or fails to show up for sentencing or commits any new offense while out of custody hell go to prison on the maximum which, I believe for this, is four years, eight months." (Emphasis added.) At that point, Whiting stated, "Up to the max." Grilli responded: "Yes. But he understands the upper term is four years on my case and eight months on Mr. Whitings case, so if he does not show up or commits any new offenses hell go to prison four years, eight. [¶] Now, you do understand that?" (Emphasis added.) Appellant replied, "Yeah."
People v. Cruz (1988) 44 Cal.3d 1247.
Subsequently, the court explained the agreement to the defendant:
"Finally, just to cover the Cruz release, Mr. Hernandez, youre going to be released. The attorneys went over those conditions with you?
"THE DEFENDANT: Yes.
"THE COURT: They require certain things of you, otherwise your deal goes out the window. Those conditions are that you obey all laws, that you return on the date indicated, that you report within 24 hours of your release to the probation department. Do you understand that? If you fail to do all of those things or any one of them, that can result in your deal going out the window and youd be looking at a possible four years. Do you understand that?"
Appellant indicated he understood. The court reiterated the conditions, asking appellant if he was "prepared to live with those [conditions.] Because they can trigger four years for you." Appellant again indicated that he understood.
At sentencing, the trial court imposed a term of four years and eight months because appellant had violated the law while released pursuant to the Cruz agreement. In imposing the term, the trial court noted that appellant had agreed that if he "violated any law [he] would be sentenced to state prison for four years, eight months."
Appellant contends that the trial court erred in imposing the upper term without stating reasons for its sentencing choice. Appellant claims that he agreed only to the possibility of the upper term, which left the court with discretion to impose a lesser term. We conclude that appellant agreed to the term imposed by the trial court.
At the plea hearing, appellants own counsel stated that appellant agreed that he would be sentenced to a term of four years and eight months if he violated the terms of the Cruz agreement. Grilli twice emphasized that appellant would be sentenced to the maximum if he failed to abide by the conditions of the Cruz agreement. In discussing the terms of the agreement, the prosecutor indicated that if appellant violated the Cruz agreement he could receive a prison sentence, explaining that the court would not be bound by the terms of the original plea. The prosecutors recitation of the agreement was not inconsistent with an agreement that appellant would accept a four-year eight-month sentence if he violated the terms of his release. In addition, the trial court indicated that a violation of the agreement would "trigger four years for you." These statements indicate that appellant agreed to accept a fixed term of four years eight months if he violated the agreement. Since appellant agreed to accept the sentence as part of his plea, he cannot now challenge the imposition of such a sentence. (In re Troglin (1975) 51 Cal.App.3d 434, 438.) Therefore, the judgment is affirmed.
The prosecutor did mention at one point that appellant could receive a term of two, three or four years on one count and up to an additional eight months for another count if appellant violated the terms of his probation. This discussion, however, related only to a violation of felony probation, not to a violation of the Cruz agreement.
In light of the statements made during the hearing, we are not persuaded the courts comment that appellant could face a "possible" four years indicated that the trial court had discretion pursuant to the plea to impose a lesser sentence.
DISPOSITION
The judgment is affirmed.