Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB803170, Donna G. Garza, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPNION
HOLLENHORST, Acting P. J.
Defendant and appellant Dexter Knox was charged with attempting a lewd act upon a child less than 14 years of age (Pen. Code, §§ 664, 288, subd. (a), count 1), attempted forcible rape (§§ 664, 261, subd. (a)(2), count 2), and kidnapping for the purpose of molesting a child (§ 207, subd. (b), count 3). The prosecutor subsequently added a fourth charge of attempted sexual battery. (§§ 664, 243.4, subd. (a), count 4.) Pursuant to a plea agreement, defendant pled guilty to count 4, in exchange for the dismissal of counts 1 through 3. The court sentenced defendant to the low term of one year in state prison, in accordance with the plea agreement.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends the trial court erred during the oral pronouncement of judgment when it did not expressly state that the attempted sexual battery conviction was not to be used as a strike. We disagree and affirm.
FACTUAL BACKGROUND
Early in the morning on March 5, 2008, defendant visited Jane Doe, the nine-year-old daughter of his ex-wife. Defendant and Doe went to several stores and a swap meet. Then defendant drove Doe to a motel. As they approached the motel, defendant asked Doe if she was going to cooperate. Doe said she would but wanted to know what she was to cooperate with. As he got out of the car, defendant told Doe he was going to rape her. When defendant walked into the motel, Doe got out of the car and ran to a nearby citizen for help.
ANALYSIS
There is No Basis For Defendant’s Claim of Error
Defendant asserts that, at the end of the preliminary hearing, the court found probable cause to believe he had committed counts 1 through 3, and that those three offenses qualified as strikes under the “Three Strikes” law. He states that, “in order to avoid any possibility the attempted sexual battery offense [count 4] might be construed as a strike because of its factual basis,” the parties stipulated that the attempted sexual battery offense could not be used as a strike. Defendant now claims the court violated his due process right to have the terms of his plea agreement enforced by failing to include in the oral pronouncement of judgment the prohibition against using the attempted sexual battery conviction as a strike. We conclude the court did not err.
A. Relevant Background
Defendant reached a plea agreement with the prosecutor. Right before the court took his plea, it stated that an attempted sexual battery charge was being added to the charges as count 4. The court made sure that defendant understood that an attempted sexual battery conviction would require him to register as a sex offender. The court then stated that the agreed-upon sentence was the low term of one year in state prison. The court explained that defendant would return to court at a later date for the pronouncement of judgment, and that the balance of the charges would be dismissed. The court further stated the agreement was that the count 4 conviction was not a strike. It then added: “That’s true regardless of the agreement; correct?” Defense counsel responded: “Yes, your Honor. It’s not a strike offense. But we are going to be stipulating to the factual basis, and we wouldn’t want anyone to try to use it in the future based on the stipulated facts. So it’s not a strike and it cannot be used as a strike.” The court agreed, but reminded the parties that sentencing laws change, so even though the conviction could not be used as a strike under the current sentencing law, it could in the future, if the laws changed. The parties agreed. Defendant then pled guilty to count 4, the court accepted the plea, and counsel stipulated there was a factual basis for the plea. The court subsequently sentenced defendant according to the plea agreement.
B. Attempted Sexual Battery Is Not a Violent and Serious Crime that Qualifies as a Strike Conviction
A prior conviction qualifies as a strike if it is for an offense “defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) As conceded by defendant, attempted sexual battery is not a violent felony offense under section 667.5 or a serious felony offense under section 1192.7. Defendant’s conviction for attempted sexual battery, therefore, cannot be used as a strike against him. As such, there was no need or requirement for the court to expressly state, in the oral pronouncement of judgment, that defendant’s attempted sexual battery conviction could not be used as a strike conviction. Moreover, defendant’s concern with the possibility that his conviction might be construed as a strike because the parties stipulated to the factual basis for the crime is speculative and unfounded.
C. The Court Did Not Breach the Plea Agreement
Defendant spends a great deal of his opening brief discussing plea agreements as contracts and arguing that he has a right to have the terms of his plea agreement specifically enforced. He contends the parties reasonably expected that the court “would impose as a term of the final judgment a prohibition against the use of the attempted sexual battery offense as a ‘strike’ under the current three strikes statute.” He claims due process requires that he be afforded the “benefit of his bargain[,] which is to include the stipulation that the current offense cannot be used as a strike in the oral pronouncement of judgment.” He also claims that fundamental fairness requires that the matter be remanded so that the court can include the stipulation in a new oral pronouncement of judgment.
In support of these claims, defendant cites numerous cases discussing specific performance of the terms of plea agreements as the appropriate remedy to allegedly similar issues. For example, defendant cites People v. Mancheno (1982) 32 Cal.3d 855. In that case, the defendant contended on appeal that he was denied the benefit of his plea bargain because the trial court failed to order that a diagnostic study be done by the Department of Corrections and Rehabilitation. (Id. at p. 859.) The Supreme Court concluded that specific enforcement was the appropriate remedy because the diagnostic study was “one of the privileges that [the] defendant had bargained for in exchange for his plea of guilty and waiver of his constitutional rights.” (Id. at p. 864, fn. omitted.) In other words, the defendant “had a right to the referral for [the] diagnostic study because it was one of the terms of the bargain specifically agreed to by the People and approved by the court in exchange for defendant’s guilty plea.” (Ibid.)
Mancheno is inapposite here. In Mancheno, the trial court violated the plea agreement by its failure to order the diagnostic study to be done. In contrast, the court in the instant case did not violate any term of the plea agreement. It is clear from the dialogue between the court and counsel, prior to taking defendant’s plea, that the parties understood the attempted sexual battery conviction could not be used as a strike. Defense counsel explicitly agreed with the court that a conviction of that offense did not qualify as a strike, regardless of the plea agreement. Defense counsel confirmed her understanding by stating: “[I]t’s not a strike and it cannot be used as a strike.” Thus, the stipulation that the attempted sexual battery conviction could not be used as a strike was not actually a bargained-for term of the plea agreement, even though the parties chose to include it in the written agreement.
Furthermore, even if the stipulation could be considered a term of the plea agreement, the court did not violate such term. The plea agreement stated: “This [the attempted sexual battery conviction] is not a strike [and] cannot be used as such.” The court did not use the attempted sexual battery conviction as a strike, and defendant is not even contending that the court used it as a strike. Thus, his demand for the remedy of specific enforcement of the plea agreement is senseless. Moreover, as discussed ante, a conviction for attempted sexual battery does not qualify as a strike. (See § A, ante.) If the court attempts to use it as a strike in the future (under the current sentencing scheme), defendant simply needs to point out that attempted sexual battery is not a serious or violent felony offense. (§§ 667.5, 1192.7.)
In sum, defendant’s claim of error is meritless. Contrary to his contention, there is no need to remand the matter for the court to perform a new oral pronouncement of judgment in order to “effectuate the stipulation... that the attempted sexual battery offense cannot be used as a ‘strike.’”
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., MILLER, J.