P. v. Alaguna

Filed 3/2/06 P. v. Alaguna CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Counsel for appellant Jaime Alaguna has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.

An information was filed by the San Mateo County District Attorney's Office on April 29, 2005^[1], charging appellant with felony vehicular hit and run with injuries (Veh. Code, § 20001, subd. (a)), and with a misdemeanor count of making a false accident report (Pen. Code, § 148.5, subd. (a)). Appellant thereafter pleaded not guilty on May 3, and trial was set for June 13.

At a pretrial conference on May 23, appellant changed his plea to both counts from not guilty to nolo contendere. In return, appellant understood that he would not receive a state prison sentence, and instead he would be granted felony probation, a condition of which was that he could be sentenced to serve up to one year in county jail. Obligations for fines, including restitution fines, and genetic marker testing, as well as the suspension of his driver's license, were all explained as possible conditions to a grant of probation. Other consequences of his plea were explained to appellant, and appellant understood and voluntarily consented to a waiver of his constitutional rights to a jury trial, to subpoena and confront witnesses, and to refuse to incrimination himself. He also waived his right to be sentenced by the judge who took his plea. (People v. Arbuckle (1978) 22 Cal.3d 749.) Sentencing was scheduled for August 18.

At sentencing, the mother of one of the victims who were injured in the underlying vehicular accident spoke. She opposed the negotiated plea, noting that her injured son had incurred over $100,000 in bills as a result of the accident. After calling for a short recess, the sentencing judge then stated that he would not follow the recommendation of the probation department calling for a grant of probation, nor would he follow the indicated sentence of the judge who took appellant's plea on May 23. The reasons given by the court for its unwillingness to follow the terms of the negotiated plea were that appellant had a prior misdemeanor conviction for hit and run with injuries, and at least one of the victims in this case had suffered â€