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Tinoco v. Superior Court

California Court of Appeals, Fourth District, First Division
Sep 26, 2008
No. D053674 (Cal. Ct. App. Sep. 26, 2008)

Opinion


JOSE DeJESUS TINOCO, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent THE PEOPLE, Real Party in Interest. D053674 California Court of Appeal, Fourth District, First Division September 26, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

PROCEEDINGS in mandate after request for certificate of probable cause denied. San Diego County Super. Ct. No. SCD204805, Jeffrey F. Fraser, Judge.

HALLER, J.

FACTUAL AND PROCEDURAL BACKGROUND

We take judicial notice of the record on appeal in D052938.

On December 11, 2007, the People charged Jose DeJesus Tinoco with two felony counts of attempted carjacking. The People alleged Tinoco personally used a deadly weapon as to both counts and he had suffered a prior serious felony conviction and prior strike conviction in 1998.

On February 13, 2008, Tinoco entered a negotiated guilty plea for a stipulated sentence of eight years, six months. On the first line of the change of plea form, Tinoco pleaded guilty to two counts of attempted carjacking. Tinoco initialed the second line of the plea form which provided:

"Plea to CT 1 admit PC §§ 12022 b (1) & 667 a (1) allegations, stipulated 8.5 years. Dismiss bal." (Emphasis added.)

The trial court accepted Tinoco's admission on both counts of attempted carjacking and the respective deadly weapon enhancements and immediately sentenced him to the stipulated term. The sentence on the second count was stayed.

Tinoco filed a notice of appeal (D052938) and request for a certificate of probable cause on April 14. (Pen. Code, § 1237.5, subd. (a).) Tinoco claimed his plea was unlawful because he did not understand the proceedings and the interpreter and trial counsel did not adequately assist him. The court denied the request for a certificate of probable cause on April 29. This petition followed. Tinoco claims the court's taking his plea to the second carjacking count and admission of the attached deadly weapon enhancement violated his plea agreement, entitling him to challenge the validity of the plea on appeal.

We asked the People for an informal response to the petition. The People do not oppose the petition. In light of the apparent contradiction on the face of the plea agreement and the People's concession, we conclude no useful purpose could reasonably be served by issuance of an order to show cause or plenary consideration of the matter. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate its April 29, 2008, order denying the request for a certificate of probable cause and enter a new order issuing the certificate. This opinion is final immediately as to this court. (Cal. Rules of Court, rule 8.264 (b)(3).)

WE CONCUR: McCONNELL, P. J., McDONALD, J.


Summaries of

Tinoco v. Superior Court

California Court of Appeals, Fourth District, First Division
Sep 26, 2008
No. D053674 (Cal. Ct. App. Sep. 26, 2008)
Case details for

Tinoco v. Superior Court

Case Details

Full title:JOSE DeJESUS TINOCO, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO…

Court:California Court of Appeals, Fourth District, First Division

Date published: Sep 26, 2008

Citations

No. D053674 (Cal. Ct. App. Sep. 26, 2008)