Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026618
BLEASE, J.
Defendant Orlando M. Robinson pled no contest to one count of battery (Pen. Code, § 243, subd. (d) ) and admitted one prior serious felony conviction (§ 667, subd. (a)(1)), in exchange for dismissal of three other charges and a maximum prison sentence of eight years. The court sentenced defendant to an aggregate sentence of nine years in state prison: the upper term of four years for the battery, plus a five year enhancement for the prior serious felony conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends his sentence constitutes a violation of his plea bargain, and asks that we reduce it to the agreed-upon term of eight years. The People concede the issue. We agree that defendant’s sentence violates his plea.
When a defendant enters a plea in exchange for specified benefits, such as dismissal of other counts or a particular punishment, both the defendant and the state must abide by the bargain, and the punishment imposed by the court “may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024; see also People v. Olea (1997) 59 Cal.App.4th 1289, 1296; People v. Clark (1992) 7 Cal.App.4th 1041, 1050.) “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433].) Failure of the state to honor the agreement violates the defendant’s due process rights for which the defendant is entitled to some remedy. (People v. Walker, supra, 54 Cal.3d at p. 1024.)
No certificate of probable cause is required to raise this claim of error. (People v. Brown (2007) 147 Cal.App.4th 1213, 1220.)
At sentencing, defendant objected to the sentence on the ground it represented the imposition of an upper term sentence on facts not found true by a jury, in violation of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], but he did not object on the ground that the sentence violated his plea bargain.
Whether a defendant has effectively waived his objection to punishment which exceeds the terms of the bargain by failure to raise it at sentencing depends on whether the court complied with the requirements of section 1192.5. That statute reads in part: “Where the 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. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. [¶] If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available.” (§ 1192.5.)
Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. (Walker, supra, 54 Cal.3d at p. 1025.) Here, defendant was not advised of his rights under section 1192.5 and has not waived the right to claim on appeal that his sentence constitutes a breach of his plea bargain.
DISPOSITION
The judgment is modified by reducing defendant’s sentence for the battery conviction from four to three years. As modified, the judgment is affirmed. The trial court shall so amend the abstract of judgment and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., HULL, J.