Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF132906, Douglas E. Weathers, Judge, and Janice M. McIntyre, Judge (retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Wallin & Klarich and Robert C. Kasenow II for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Pursuant to a plea agreement, defendant Darius Isaac Nazari pled guilty to assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and admitted the truth of the allegation that he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). The court denied probation and sentenced defendant to the low term of two years for the conviction on the assault, plus a consecutive term of three years on the enhancement.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends that: 1) his plea was not voluntary, intelligent, and knowing, since the court failed to tell him there was a statutory presumption against granting him probation, but instead represented that there were no legal restrictions on probation being granted; 2) the court failed to abide by the terms of the negotiated plea agreement; and 3) he was not statutorily ineligible for probation. We affirm.
The facts are taken from the probation officer’s report.
Defendant initially told the police that his brother-in-law (the victim) collapsed and hit his head on a tree stump. After the police told him that the evidence was not consistent with his story, defendant admitted that he assaulted the victim by hitting him on the head, causing him to fall to the ground. Once the victim was on the ground, defendant punched and kicked him in the head. As a result, the victim was hospitalized with a cut above his right eye, various contusions and abrasions, and a swollen and bruised face. The victim was also unconscious and had to be attached to a respirator. Defendant admitted that he and the victim had personal issues between them, and that he had smoked methamphetamine the night before the assault. Defendant is bipolar but has not taken his medication since December 2005.
ANALYSIS
I. Defendant Failed to Obtain a Certificate of Probable Cause
Defendant contends that his plea was not knowing, intelligent, and voluntary, since the trial court failed to tell him there was a presumption against him being granted probation under section 1203, subdivision (e)(3). Instead, the court affirmatively represented to him that there were no legal restrictions on his being granted probation. We reject defendant’s claim.
Section 1237.5 provides, in relevant part: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
“It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation].” (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
Here, defendant is arguing that the court misrepresented his prospects of being put on probation, which caused his plea not to be knowing, voluntary, and intelligent. This claim goes to the heart of the plea’s validity. Thus, his failure to obtain a certificate of probable cause bars consideration of the claim. (People v. Mendez (1999) 19 Cal.4th 1084, 1095.)
Defendant concedes that he failed to obtain a certificate of probable cause, but cites People v. Vento (1989) 208 Cal.App.3d 876 (Vento) in support of his position that we should overlook such failure. Vento is distinguishable. In that case, the court deemed it appropriate to reach the merits of the defendant’s appeal, despite the fact that he did not obtain a certificate of probable cause as required by section 1237.5 “until more than 60 days after the rendition of judgment in violation of California Rules of Court, rule 31(d).” (Vento, supra, at pp. 877-878, fn. 1, italics added.) In other words, the defendant in Vento did obtain a certificate of probable cause, but simply failed to do so within the applicable time limits. (Ibid.) The court was willing to reach the merits of his appeal, rather than dismiss it for a technical defect. (Ibid.) In contrast, in the instant case, defendant simply did not obtain a certificate of probable cause at all.
Even if we reach the merits of defendant’s claim, it fails under Vento. In Vento, the defendant similarly claimed that the trial court made misleading comments regarding the possibility of probation. (Vento, supra, 208 Cal.App.3d at pp. 877-878.) Before the defendant pled guilty, the trial court advised him that neither prison nor probation would be ruled out as a possible sentence. The defendant acknowledged that he was not promised anything in exchange for his plea. The court subsequently sentenced him to prison. (Ibid.) The appellate court noted that the defendant was not informed at the time he entered his plea that probation would be statutorily disfavored. Nonetheless, it rejected the defendant’s claim because the record did not “show a climate of ‘real anticipation’ that probation was likely.” (Id. at p. 879.) Furthermore, at no time did the defendant move to withdraw his plea. (Ibid.)
Similarly, here, the record does not show “a climate of real anticipation” that might have led defendant to expect a grant of probation. The plea form signed by defendant clearly stated that the maximum possible custody commitment was seven years. It further stated that probation would be decided by the court. Before entering his plea, the trial court asked defendant if he was aware he was making an open plea to the court upon the agreement that the custody term would not be more than seven years. Defendant said, “Yes.” Defendant also acknowledged that he had discussed the plea form with his attorney, and that nobody made any promises or guarantees to him that were not on the form. Moreover, defendant’s probation report expressly explained that, under section 1203, subdivision (e)(3), because he “willfully inflicted great bodily injury in perpetration of the crime” of which he was convicted, he was ineligible for a grant of probation, unless an unusual case could be found. The probation officer stated that a review of the facts and circumstances did not indicate that this was an unusual case under California Rules of Court, rule 4.413(c). Although the probation officer nonetheless recommended a grant of probation, the court was not required to follow that recommendation. (People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on other grounds as stated in People v. Bailey (1996) 45 Cal.App.4th 926, 930.) Additionally, as in Vento, defendant never moved to withdraw his plea.
All further references to rules are to the California Rules of Court.
Therefore, we conclude that defendant’s claim that his plea was not knowing, intelligent, and voluntary fails.
II. The Court Properly Abided by the Terms of the Plea Agreement
In the alternative, defendant argues the court failed to sentence him according to the terms of the negotiated plea agreement. We disagree.
Section 1192.5 provides that where a guilty plea “is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.”
Here, the plea agreement did not contain an indicated sentence. Rather, defendant agreed to make an open plea to the court, upon the condition that the maximum possible custody commitment would be seven years. Thus, the court was free to impose any sentence up to that limit. After reading the probation officer’s report and a psychiatrist’s report, the court concluded that under rule 4.413(b), defendant was ineligible for probation unless unusual circumstances could be found. The court reviewed the facts and circumstances and concluded that there were no unusual circumstances here. It then sentenced defendant to a total of five years in state prison. Defendant may be disappointed with the sentence he received; however, the court properly sentenced him within the contemplated range stated in the plea agreement.
Defendant argues that the court violated “a specific and significant term of the plea.” The plea form stated: “My guilty pleas are conditional on receiving the following considerations as to sentence: [¶] a) Probation will . . . be . . . decided by the court. If granted, the length of probation may be up to five years. The following legal restrictions apply to a decision to grant probation in this case: _____.” Nothing was filled out on the form as far as applicable legal restrictions. However, subdivision (b) of that part of the plea agreement reiterated, “The custody term shall not be more than 7 years.” (Underlining and bolding in original.) Defendant claims that because the court found him ineligible for probation under rule 4.413(b), it violated the “term” stating that his plea was conditional “‘on receiving . . . the . . . consideration[]’ . . . that there were no ‘legal restrictions’ on granting probation” to him. In other words, he argues that because the space provided for filling in legal restrictions on probation was left blank, a reasonable person could conclude there were no legal restrictions on granting him probation, and that “the court was agreeing to exercise unfettered discretion in determining whether to grant probation or not.”
Defendant cannot seriously argue that no legal restrictions applied to the court’s decision to grant him probation simply because that part of the form was not filled in. Moreover, it is absurd to claim that he conditioned his guilty plea on any such “specific and significant term.” The court did not violate any of the specific terms of the plea agreement. Rather, it abided by the terms, which specifically stated that probation would be decided by the court and that the custody term would not be more than seven years.
III. The Court Properly Found that Defendant Was Ineligible for Probation
Defendant contends that the court improperly applied the statutory presumption that he was ineligible for probation under section 1203, subdivision (e)(3) and rule 4.413(c). Citing People v. Lewis (2004) 120 Cal.App.4th 837 (Lewis), he maintains that, even though he admitted he personally inflicted great bodily injury under section 12022.7, there was insufficient evidence that he intended to inflict great bodily injury on the victim, within the meaning of section 1203, subdivision (e)(3). We disagree.
Although the court did not specifically cite subdivision (e)(3) of section 1203 in concluding that defendant was ineligible for probation, it appears that the court’s finding was made under that subdivision. The probation officer applied this statutory provision in his report. Defendant concedes.
A. The Evidence Showed that Defendant Intended to Inflict Great Bodily Injury
Except in unusual cases where justice would best be served, section 1203, subdivision (e)(3), precludes the granting of probation to those “who willfully inflicted great bodily injury or torture in the perpetration of the crime” resulting in conviction. Lewis held that the only reasonable reading of the word “willful” “requires the defendant’s intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture.” (Lewis, supra, 120 Cal.App.4th at p. 853, italics added.)
There was sufficient evidence here to support a finding that defendant intended to inflict great bodily injury on the victim. The record shows defendant admitted to the probation officer that he was angry with the victim on the day of the attack. He stated that the victim intentionally destroyed some of his personal property. Defendant was therefore aggravated with the victim, and became increasingly upset. He stated that the victim’s attitude “infuriated him,” and that the victim “‘egged him on’” and “‘pissed him off.’” Defendant admitted that his anger toward the victim became uncontrollable and led him to hit the victim on the head at least two or three times. Significantly, defendant further admitted that after the victim fell to the ground, he (defendant) continued to punch and kick the victim in the head. Defendant’s actions of repeatedly striking the victim on the head, especially after he fell to the ground, clearly demonstrate his intent to cause great bodily injury. Thus, the court properly concluded that defendant willfully inflicted great bodily injury, within the meaning of section 1203, subdivision (e)(3).
B. The Court Properly Found This Was Not an Unusual Case
Finally, defendant complains that the court erred in finding his case was not an unusual case, within the meaning of rule 4.413(c). Under that rule, unusual circumstances permitting probation include: defendant “participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence”; the crime was committed because of a mental condition, “and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation”; and the defendant is young or old and has no significant record of prior criminal offenses. Defendant argues that these three circumstances applied. We disagree.
Both the probation officer and the court found that there were no unusual circumstances. Indeed, there was no indication that any of the claimed unusual circumstances listed in rule 4.413(c) applied. Rather than being “greatly provoked,” it appears that defendant simply gave in to his rage, and was possibly under the influence of methamphetamine at the time of the attack. Even if the victim did destroy his personal property, defendant’s brutal response was completely disproportionate to the circumstances. Furthermore, although defendant was bipolar, there was no indication that such mental condition actually caused him to viciously assault his brother-in-law. Instead, the record indicates that defendant knew what he was doing and that it was wrong, as demonstrated by his initial story to the police that the victim collapsed and hit his head on a tree stump. Moreover, there is not a high likelihood that defendant would respond favorably to mental health care and treatment, if required as a condition of probation. Rather, the record shows that defendant was previously taking Lithium to control his behavior, but then simply decided to stop taking it, without seeking medical advice. Finally, at the age of 26, defendant would not be considered particularly young or old.
In sum, the court properly found that defendant was ineligible for probation under section 1203, subdivision (e)(3), since no unusual circumstances applied in this case.
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., GAUT, J.