P. v. Ballestro

Filed 3/23/07 P. v. Ballestro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Francisco Ballestero, pled no contest pursuant to a negotiated plea to one count each of forcible rape (count 1, Pen. Code, 261, subd. (a)(2))^[1]and first degree burglary (count 2, 459) and admitted allegations in count 1 that the victim was 65 years of age or older ( 667.9, subd. (a)). On February 23, 2006, the court sentenced Ballestero in accord to his plea agreement to a four-year term. On appeal, Ballestero contends the court violated the terms of his plea bargain. We will affirm.

FACTS

On May 9, 2005, 66-year-old P.H. called the Porterville police department to report that at approximately 6:00 p.m., as she was watching television, Ballestero entered her house and raped her.

On October 13, 2005, the district attorney filed an information charging Ballestero, in pertinent part, with the counts he pled to, the age enhancement he admitted, and special allegations under the one strike law ( 667.61, subds. (a) and (d)).

On November 29, 2005, Ballestero pled no contest to the rape and burglary counts in exchange for the dismissal of one strike law allegations and a lid of four years. During the change of plea proceedings, the court advised Ballestero that if the prosecutor convinced the court to impose a greater sentence Ballestero would have the right to withdraw his plea and go to trial.

On February 23, 2006, at the beginning of Ballesteros sentencing hearing, the following exchange occurred:

THE COURT: All right Mr. Ballestero, the bottom line is I indicated that because of your - - because of circumstances, while certainly serious, your early acknowledgement of responsibility at an early stage, coupled with other considerations, your relatively minor record and other factors in the probation report, that I would not sentence you to prison - - not sentence you to state prison for any more than four years. It looks to me as if you would not be - - you would not be able to accomplish that without your admission to the charge - - the special allegation that the victim in the case was 65 years of age or older.

Now with that, if you wish to withdraw your plea without admitting to that, it seems to me that would - - that would be required.

[BALLESTERO]: Yes.

THE COURT: Of course your exposure then would dramatically change; you understand that too?

[BALLESTERO]: Yes, I do.

Ballestero stated that he would admit the age enhancement and proceeded to do so. The court then sentenced him to an aggregate four-year term as follows: the mitigated term of three years on his rape conviction, a one-year age enhancement, and a concurrent midterm of four years on his burglary conviction.

DISCUSSION

Ballestero contends the court did not understand it had discretion to impose a four-year term under his original plea agreement. According to Ballestero, this caused the court to violate the terms of his negotiated plea by requiring him to admit the age enhancement in order for him to be sentenced to the four year-term provided for by his agreement. Ballestero further contends that he is entitled to specific performance of the original agreement without the admission of the age enhancement. We will reject these contentions.

Section 1192.5 provides in pertinent part: Where the plea [of guilty] 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 . . . plea if he . . . desires to do so . . . .

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.

[I]mplicit in the language of section 1192.5 is the premise that the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea. [Citation.] Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case [citation], or where, after further consideration, the court concludes that the bargain is not in the best interests of society. [Citation.] (People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338, italics added.)

Preliminarily, we reject Ballesteros contention the court misunderstood it had discretion to impose a four-year term under the terms of his original plea bargain. In support of this assertion, Ballestero cites the courts statement that [Ballestero] would not be able to accomplish [a four-year term] without [his] admission to the [age enhancement[.] Additionally, he notes the court could have imposed a four year term by sentencing him to the middle term of four years on his burglary conviction and a concurrent three-year term on his rape conviction. This, according to Ballestero, demonstrates the court misunderstood its sentencing discretion. We disagree.

It is presumed that official duty has been regularly performed. (Evid. Code, 664.) Further, as the appellant, Ballestero had the burden of making an affirmative showing of error. (People v. Clarida (1987) 197 Cal.App.3d 547, 555.) However, the courts statement at issue is ambiguous. As noted by respondent, it is possible that after reviewing the details of Ballesteros offense in the probation report, the court simply decided it would not accept a plea bargain for four years unless Ballestero admitted the age enhancement, perhaps because it would more accurately reflect the seriousness of Ballesteros offense. Additionally, we conclude it is extremely unlikely the court and both counsel would all erroneously conclude it was not possible to sentence Ballestero to a four-year term unless he admitted the age enhancement. This is particularly true because the probation report, which the court read and was provided to the parties, indicated Ballestero could be sentenced to a term of 3, 6 or 8 years on his rape conviction and a term of 2, 4 or 6 years on his burglary conviction. Accordingly, we conclude Ballestero has not met his burden of showing that the court misunderstood its sentencing discretion.

Further, as authorized by section 1192.5, the court here withdrew its approval of the original plea agreement and allowed Ballestero to withdraw his plea. It also offered Ballestero the option of a second plea agreement that provided for a lid of four years, but required him to admit the age enhancement. Accordingly, we reject Ballesteros contention that the court violated the terms of his original plea agreement and that he is entitled to specific performance of that agreement.

In any event, even if we found that the court modified Ballesteros original agreement by requiring him to admit the age enhancement, we would further conclude that Ballestero waived his right to raise any issues on appeal that arose from this modification.

In People v. Walker (1991) 54 Cal.3d 1013, the court stated:

When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.

[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. [Citation.] [] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy. [Citations.] . . . (Id. at p. 1024.)
Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of section 1192.5. That section provides in pertinent part that when a plea bargain is accepted by the parties and approved by the court, the defendant generally cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea. The court 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 such case, the defendant shall be permitted to withdraw his plea if he desires to do so. [Citation.] (Walker, supra, 54 Cal.3d at pp. 1024-1025.)

Thus, the Walker court concluded, when the admonition is given, and thedefendant does not ask to withdraw the plea or otherwise object to the sentence, he has waived the right to complain of the sentence later. (Walker, supra, 54 Cal.3d. at p. 1026.)

In Walker the defendants plea bargain did not provide for a restitution fine of $5,000, which the trial court imposed at sentencing. (People v. Walker, supra, 54 Cal.3d at pp. 1018-1019.) Here, as in Walker the court added an additional element to Ballesteros plea agreement that was not part of the bargain, i.e., admission of the age enhancement. Further, Ballestero failed to ask to withdraw his plea or otherwise object to the sentence or the additional requirement that he admit the age enhancement when the court advised him it was not accepting the plea under the agreements original terms. Instead, he expressly agreed to admit the age enhancement in order to receive the benefit of a four-year sentence. Thus, as an alternative basis for rejecting Ballesteros claim that the court violated the terms of his plea bargain, in accord with Walker we conclude that Ballestero waived this issue on appeal.

DISPOSITION

The judgment is affirmed.

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^* Vartabedian, A.P.J., Wiseman, J., and Levy, J.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.