Opinion
NOT TO BE PUBLISHED
Superior Ct. Nos. 04F03674 06F06330
MORRISON, J.
Defendant Daniel Allen O’Keefe pled guilty in case No. 04F03674 to inflicting corporal injury on a child and admitted he used a deadly weapon. (Pen. Code, §§ 273d, subd. (a), 12022, subd. (b)(1).) He was ordered to serve 180 days and placed on probation. While defendant was on probation, he was charged in case No. 06F06330 with inflicting corporal injury on a child, making criminal threats, and child endangerment. Defendant pled no contest to inflicting corporal injury on a child, in exchange for dismissal of the remaining charges and an agreement of no state prison.
Further undesignated statutory references are to the Penal Code.
In light of defendant’s plea in case No. 06F06330, the court found defendant in violation of his probation in case No. 04F03674. The trial court placed defendant on probation in case No. 06F06330, reinstated probation in case No. 04F03674, and ordered defendant to serve consecutive 180-day terms on each case.
Defendant appeals. He contends the trial court violated the plea agreement by ordering him to serve 180 days on case No. 04F03674. We disagree and affirm.
The plea agreement in case No. 06F06330 provided that defendant would plead no contest to inflicting corporal injury on a child and the remaining counts would be dismissed, one with a Harvey waiver. It was also agreed that defendant would receive no state prison time “incl any VOPs” -- presumably meaning he would also not receive any state prison time on any violation of probation case. Prior to entering his plea, defendant assured the trial court that no other promises had been made.
People v. Harvey (1979) 25 Cal.3d 754.
After the trial court accepted defendant’s plea in case No. 06F06330, the court stated: “I’ll dismiss the other two counts in the interest of justice, Count Three with a Harvey waiver. [¶] I’ll find him in violation on case 04F03674; however, there will be no additional time imposed for the violation on that case. [¶] It’s referred to probation for a presentence investigation and report.”
At sentencing, the trial court noted that defendant was not eligible for probation on case No. 06F06330 unless there were unusual circumstances and then the court found unusual circumstances. Sentencing proceeded as follows:
“THE COURT: [¶] So, on that case, the imposition of judgment and sentence is suspended for a period of five years during which time he’ll be on formal probation with the conditions that are in the report. [¶] . . . [¶] Serve 180 consecutive. Credit time served two. [¶] . . . [¶] And on case 04F03674, probation is reinstated on the original terms and conditions. Serve 180 consecutive.
“[DEFENSE COUNSEL]: Was the second 180 days in conjunction with the second one?
“THE COURT: On the violation case.
“[DEFENSE COUNSEL]: Okay. Our understanding was that he receive no extra time for that.
“THE COURT: I’m giving him one year total. That’s all.
“[DEFENSE COUNSEL]: All right. Okay. I just wanted to clarify.
“THE COURT: I’m just not giving him any more than a year. I’m just putting 180 on the old case.
“[DEFENSE COUNSEL]: All right.”
“[P]lea agreements are a recognized procedure under our judicial system [citations] and a desirable and essential component of the administration of justice. [Citations.]” (People v. Masloski (2001) 25 Cal.4th 1212, 1216.) “Under section 1192.5, if a plea agreement is accepted by the prosecution and approved by the court, the defendant ‘cannot be sentenced on the plea to a punishment more severe than that specified in the plea . . . .’” (Id. at p. 1217.)
Having obtained a certificate of probable cause, defendant contends the trial court violated the terms of the plea agreement by imposing 180 days of jail time in case No. 04F03674. (§ 1237.5.) He concedes the trial court was permitted under the terms of the agreement to impose 360 days in jail, but contends the assignment of 180 days to case No. 04F03674 violated the plea agreement. We are not persuaded.
Defendant bases his contention on the trial court’s statement after defendant entered his plea that it would find him in violation of probation on case 04F03674; however, there will be no additional time imposed for the violation on that case.
Although the trial court indicated it would not impose any “additional” time for the violation of probation on case No. 04F03674, this statement was made after the court accepted defendant’s plea and was not part of the plea agreement. There is nothing in the record to indicate it was a term of the agreement, or even mentioned prior to defendant entering his plea. The only term of the agreement regarding defendant’s sentence was that he would not receive any prison time. That term was not violated.
In light of the trial court’s later comment at sentencing, it does appear, as respondent suggests, that the trial court may have meant that the promise of no state prison would not be jeopardized by the subsequent violation of probation. We are not required to make this determination.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J. ROBIE , J.