Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR69070
SCOTLAND, P.J.
The sole contention raised in this appeal is frivolous.
After brutally beating a man with a baseball bat, defendant James Clayton Jorrick entered a negotiated plea of guilty to assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and admitted causing great bodily injury (Pen. Code, § 12022.7). The People agreed to dismiss another charge and “not [to] argue for an immediate commitment to state prison,” i.e., both defense counsel and the People “would be arguing that [defendant] should receive probation.” However, the written plea form signed by defendant acknowledged that despite the parties’ agreement that he should receive probation, the trial court would determine the sentence, and defendant could be committed to state prison for up to seven years.
The probation officer recommended that defendant be placed on probation under various conditions, including that he serve 180 days in county jail.
At the sentencing hearing, defense counsel “argu[ed] that a grant of probation with some tight controls would be an appropriate disposition.” When asked if the People wished to be heard, the prosecutor said: “Your Honor, the 180 days recommended by [p]robation is insufficient given the caliber of this crime. [¶] We will submit it.” The court then sentenced defendant to state prison.
On appeal, defendant contends the People “violated the terms and spirit of the plea agreement” because the prosecutor’s comment was an “argument for a harsher sentence and against the recommendation of probation,” which was “a significant deviation from the [plea] agreement.”
This contention is frivolous because it “indisputably has no merit,” i.e., “any reasonable attorney would agree that [the claim of error] is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) It was readily apparent to the prosecutor, defense counsel, and the trial court that the parties had agreed probation should be granted. Indeed, defense counsel noted the prosecutor “will not be arguing for State Prison . . . .” And the prosecutor’s comment is not in any way susceptible to an interpretation that the People were instead urging the court to deny probation and sentence defendant to state prison; it was nothing more than an assertion that, in light of the facts of the case, the period of incarceration in county jail as a condition of probation should be more than the 180 days recommended by the probation department. It is also utterly unreasonable to construe the comment as an argument for a harsher sentence than that to which the People agreed. If the trial court had decided to grant probation, as recommended by the plea agreement, it could have imposed as a condition of probation a period of incarceration of up to 365 days in county jail. (Pen. Code, §§ 19.2, 1203.1, subd. (a)(2).) Thus, because the parties’ agreement contemplated that defendant could get up to a year in county jail if granted probation, the prosecutor’s argument for more than 180 days did not “violate[] the terms and spirit of the plea agreement” as defendant asserts.
The judgment is affirmed.
We concur: MORRISON, J., BUTZ, J.