Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC626410
Bamattre-Manoukian, Acting P.J.
After defendant Carlos Albert Perez, Jr., waived a preliminary examination, he was charged by information filed April 27, 2007, with 10 counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) ; counts 1-10), eight counts of false imprisonment (§§ 236, 237; counts 11-18), and one count each of assault on a peace officer (§ 245, subd. (c); count 19) and reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 23). The information further alleged that defendant was armed with a handgun during the commission of the offenses in counts 1 through 18 (§ 12022, subd. (a)(1)), and that he personally used a dangerous and deadly weapon, a vehicle, during the commission of the offense in count 19 (§§ 667, 1192.7).
The information also alleged similar offenses against Jamar Donte Davidson and Jose Luizjr Ramos, who are not parties to this appeal.
Further statutory references are to the Penal Code unless otherwise specified.
On June 26, 2007, the date set for trial, the court dismissed counts 19 and 23 for insufficiency of the evidence on the motion of the prosecutor. Defendant then entered no contest pleas to counts 1 through 18 and admitted the arming allegations as to those counts “based upon the Court’s promise that at time of sentencing he will receive a state prison term of six years and eight months, no more, no less.” Prior to accepting defendant’s pleas the court informed defendant that it was “going to set a date for sentencing, give probation a chance to come back and make a report to the Court. If you willfully fail to appear for your sentencing, the deal is off, and you don’t get to withdraw your plea. . . . [Y]ou could be sentenced to the maximum term. [¶] Do you understand that?” Defendant stated that he did. After defendant waived time for sentencing, the court referred the matter to the probation department for preparation of a presentence investigation report and set the matter for sentencing on September 13, 2007.
Defendant was interviewed by the probation officer while in custody. Defendant told the probation officer that he and codefendant Davidson entered a bank with guns in their hands, ordered the occupants to lie down on the floor, jumped over the counter, took money from three tellers, jumped back over the counter, exited the bank, and left in a car driven by codefendant Ramos. The probation officer reported that the codefendants provided similar versions of the offenses, yet it appeared that defendant was charged as though he had been the driver of the getaway car rather than one of the two men who actually entered the bank. Accordingly, the probation officer recommended that defendant be sentenced to eight years in state prison, a sentence “at least equal to that which defendant Ramos is scheduled to receive.”
On September 13, 2007, counsel waived defendant’s presence. The court advised the parties that, “[b]ased on evidence that was brought to the attention of the Court and facts and circumstances relating to the offense and to the defendant’s participation therein, this Court is unable to proceed with the negotiated disposition that was obtained in this matter.” “What I indicated to counsel was that with counsel’s agreement, and this would require the agreement of both counsel, I would be willing to obviously grant a request of the defendant to withdraw his plea. He’s entitled to do that. Or in the alternative, if counsel agree, to simply obtain the agreement of the defendant and impose a term of eight years . . . .” “So counsel want to have an opportunity to go over this and see if they can reach an accord on this . . . .” The prosecutor informed the court and defense counsel that, if defendant withdrew his plea, the People would be moving to amend the information. Therefore, the court continued the matter.
On September 26, 2007, the date set for sentencing, the court stated on the record, “I advised counsel that I was unable to honor the plea agreement reached between the parties in this matter in that the plea agreement was based on the express understanding that Mr. Perez was not one of the perpetrators who entered the bank on the day in question and personally used a firearm against 10 separate victims in order to accomplish the robberies and false imprisonments complained of. [¶] Prior to sentencing, the People notified counsel and the Court that additional evidence which had been examined, although previously in the possession of the People, unequivocally established that the defendant was in fact one of the perpetrators inside the bank. [¶] Based on that, based on the sentence given to the other perpetrator and based on the nature of the offenses alone, I could not in good conscience and in the interest of justice honor the agreement. [¶] Since then, we have had a number of discussions about possible resolutions. I have indicated that because I cannot honor the agreement, it would be my intention at sentencing to impose a 12-year state prison term in this case. Because of that, Mr. Perez, you have the absolute right to withdraw your previously entered pleas if you choose to do so. It would be essentially automatic if you tell me that that’s what you want to do. [¶] If, however, you wish to still take advantage of the disposition which guarantees you now 12 years in state prison, not eight, all other terms and conditions essentially being the same, then your plea can stand and we can proceed to sentencing.”
The court asked counsel if he and the defendant “had sufficient time to talk” “about all of his options under these circumstances.” Counsel answered affirmatively, and stated that defendant wished to be sentenced that day. The court then asked defendant directly, “Is it your decision to accept this Court’s determination and to proceed even though it is not the eight years you were originally promised?” Defendant answered, “Yes.” The court asked, “And do you understand that, sir, that that means I will go ahead and sentence you today on this agreement? Do you understand that?” Defendant again answered, “Yes.” The court then sentenced defendant to 12 years in state prison. The sentence consists of the aggravated term of five years on count one, with the additional term of one year for the arming allegation; consecutive terms of one year, one-third the midterm, on counts 2 through 7; and concurrent terms on count 8 through 18. The court struck the punishment for the arming allegations on counts 2 through 18.
Defendant filed a notice of appeal (see Cal. Rules of Court, rule 8.304(b)), and we appointed counsel to represent him in this court. Appointed counsel has filed a brief that states the case and facts but raises no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days.
All further rule references are to the California Rules of Court.
Defendant has submitted a supplemental brief wherein he contends that his trial counsel rendered ineffective assistance by not insisting that defendant be sentenced on June 26, 2007, immediately after he first entered his pleas, because defendant wanted to be sentenced that day, and because a probation report would serve no legitimate purpose. “If [defendant] had been sentenced the same time as he pled to Counts 1-18, he would have only received a sentence of 6 yrs, 8 months. He would have been the first of the three defendants to be sentenced. [¶] Instead, there was ineffective assistance of counsel, on the part of defense counsel for failing to consult [defendant]. The end result was [defendant] ended up with an extra 5 yrs & 4 months.” However, defendant is precluded from challenging the validity of the plea agreement he entered into on September 26, 2007, because he has not obtained a certificate of probable cause. (Pen. Code, § 1237.5; Rule 8.304(b)(5); People v. Mendez (1999) 19 Cal.4th 1084, 1096.)
Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The judgment is affirmed.
WE CONCUR: mcadams, J., duffy, J.