P. v. Bustamante

Filed 3/23/07 P. v. Bustamante CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Tony Sergio Bustamante pled nolo contendere to first degree burglary and admitted several special allegations, including one making him ineligible for parole. (See Pen. Code,^[1] 459, 460, subd. (a), 667, subd. (a), 1170.12, subd. (c)(1), 1203.085, subd. (a); see also former  1192.7, subd. (c)(18) [as amended by Stats. 2002, ch. 606,  3].) His motion to strike a probation ineligibility finding was denied and he was sentenced to nine years in state prison. (See  1203.085, subd. (a).) On appeal, Bustamante contends that by refusing to consider a grant of probation after concluding that it was statutorily prohibited from granting probation, the trial court violated the terms of his plea agreement. He reasons that he is entitled to have an opportunity to withdraw his plea. We affirm the judgment.

I. FACTS^[2]

In October 2002, appellant Tony Sergio Bustamante pled nolo contendere to first degree burglary and receiving stolen property. (Super. Ct. No. SC051850A.) (See  459, 460, subd. (a), 496, subd. (a).) He was sentenced to a total term of two years in state prison for these offenses. In August 2003, he was released from prison on parole. Bustamante absconded from parole and remained at large until he was arrested in April 2004 on misdemeanor drug possession charges. In July 2004, he was granted probation after being convicted of those charges.

On September 10, 2004, Gary Trantow returned to his Redwood City residence to find that an unfamiliar bicycle was on his property, a door had been forced and his home had been burglarized. Among the items found missing were five handguns. Within two minutes of entering his home and discovering the break-in, Trantow saw that the bicycle was gone from in front of his house. Soon after Trantow reported the break-in and the unfamiliar bicycle to police, Bustamante was found a few blocks away from the residence. He was riding a bicycle matching the description that Trantow had given to police. A plastic bag hung from the bicycles handlebars and Bustamante wore a ring inscribed with Trantows initials.

Bustamante was detained. He made a brief attempt to flee from police, in vain. Trantow appearedhe identified the ring and most of the items in the plastic bag as his property. In a subsequent parole search, Bustamante was found to be in possession of 1.56 grams of methamphetamine. After his arrest, he helped police recover the missing weapons.

In February 2005, Bustamante was charged by information with single counts of first degree burglary, receiving stolen property and possession of methamphetamine, along with five counts each of grand theft of a firearm and of being an ex-felon in possession of a firearm. (See  459, 460, subd. (a), 487, subd. (d)(2), 496, subd. (a); Health & Saf. Code,  11377, subd. (a); see also former  12021, subd. (a)(1) [as amended by Stats. 2003, ch. 499,  4.7].) The information also alleged that he committed these offenses while on parole and that he had suffered multiple prior convictionssome of which constituted strikes, some of which might warrant sentence enhancement, and some of which might render him ineligible for probation. (See  667, subd. (a), 1170.12, subd. (c)(1)-(2), 1203.085, subds. (a)-(b); see also former  667.5, subd. (a) [as amended by Stats. 2002, ch. 606,  2], 1203, subd. (e)(4) [as amended by Stats. 1996, ch. 719,  1, pp. 3909-3913].) Finally, the information alleged misdemeanor resisting a peace officer in the discharge of his or her duty. (See  148, subd. (a)(1).)

In February 2005, Bustamante pled not guilty to all charges and denied all allegations in the information. In August 2005, he filed a written change of plea form. In it, he indicated his desire to plead nolo contendere to the first degree burglary charge and to admit the allegations of his 2002 prior conviction for first degree burglarya serious felonyand the commission of the current offense while on parole for that offense. (See  460, subd. (a), 667, subd. (a), 1170.12, subd. (c)(1),^[3]1203.085, subd. (a).) He stated that the maximum penalty to which the plea exposed him was 17 years in state prison, followed by four years on parole. He knew that the new first degree burglary conviction would constitute a strike for future purposes. He was willing to change his plea because of an indicated sentence of no more than nine years and because he could move the court to dismiss [his remaining] strike [citing  1170.12] and . . . [section] 1203.085 allegation at [a] Romero [hearing]. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) Thus, in the plea agreement, Bustamante reserved the right to ask the trial court to strike his prior strikethe 2002 first degree residential burglaryand the probation ineligibility finding based on his admission that he committed the charged offense while on parole after imprisonment for the prior offense. (See  1170.12, 1203.085.) The form also indicated that Bustamante understood that the issue of probation and sentence was to be determined solely by the trial court. At the end of Bustamantes part of the form, just before his signature, the following language appeared: The Court reserves the right to withdraw its consent to any sentence limitation agreement; and, in [that] event, I will be permitted to withdraw my [nolo contendere plea] and all charges will be reinstated.

At the change of plea hearing, the parties discussed the effect of the proposed admissions. The prosecutor opined that the combined effect of these admissions would render Bustamante mandatorily ineligible for probation. Bustamantes counsel thought otherwise, arguing that there was a legal issue about whether the trial court had discretion in the face of the probation ineligibility finding. When the trial court asked the defendant if he understood that there was an issue about whether one of the allegations could be stricken and that it would consider striking the Romero strike at a separate hearing, Bustamante indicated that he did.

As agreed, Bustamante withdrew his not guilty plea and pled nolo contendere to the 2004 first degree residential burglary. He admitted his 2002 first degree burglary prior conviction and acknowledged that this prior conviction constituted a strike, a serious felony, and satisfied the requirements of section 1203.085, subdivision (a) relating to his eligibility for probationin effect, admitting that he had been on parole after being imprisoned for his 2002 prior serious felony at the time that he committed the 2004 first degree burglary, which was also a serious felony. (See  459, 460, subd. (a), 667, subd. (a), 1170.12, subd. (c)(1), 1203.085, subd. (a).) The underlying facts admitted pursuant to the plea had three sentencing effects. First, it permitted imposition of a five-year sentence enhancement to the sentence for the charged first degree residential burglarya serious felonybecause of the commission of the 2002 first degree residential burglarya prior serious felony. (See  667, subd. (a).)^[4] Second, it authorized the doubling of the base term for the charged offense because of the prior serious felony. (See  1170.12(c)(1).)^[5] Third, it rendered Bustamante ineligible for probation because he admitted that he was on parole after being imprisoned for the 2002 prior serious felony at the time that he committed the charged serious felony. (See  1203.085.)^[6] The trial court accepted the nolo contendere plea, found Bustamante guilty of the 2004 first degree burglary, and found that the admitted allegations were true. All remaining counts were dismissed and all other allegations were stricken.

Bustamante acknowledged having a substance abuse problem and he hoped to be admitted to a residential treatment program. In January 2006, he moved to strike the trial courts finding that he committed the 2004 burglary while on parole after imprisonment for the 2002 burglarya serious felony, making him otherwise ineligible for probation. (See  1385; see also  1203.085, subd. (a); former  1192.7, subd. (c)(18).) In the motion, he argued that the trial court had discretion to strike this finding and should exercise that discretion in his favor. (See Romero, supra, 13 Cal.4th at p. 524 fn. 11.) In the alternative, Bustamante urged the trial court to strike the finding that he had suffered a strike as a result of his 2002 first degree burglary conviction. (See  1170.12, subd. (c)(1).) The People opposed the motion.

At a hearing, the parties debated whether the trial court had the authority to strike a probation ineligibility finding. The trial court indicated that [t]he law is clear that it did not have the authority to strike this finding, although it could grant a Romero motion striking the section 1170.12 finding requiring doubling of the base term, which could reduce the length of the indicated nine-year prison sentence to seven years. (See  1170.12, subd. (c)(1).) Despite these assertions, Bustamantes counsel argued that the trial court did have the authority to strike the probation ineligibility finding.

Hearing counsels insistence on this point, the trial court indicated that it was willing to consider counsels argument, but did not offer Bustamantes attorney much hope of prevailing on the motion to strike, as it felt that the law was clearly against him. It may have misled Bustamante at the plea stage by indicating that it was willing to consider a Romero motion, the trial court stated. It had expected the defendant to make a more typical Romero request to strike a prior strike, not a request to strike a probation ineligibility finding. Bustamantes defense attorney sought to persuade the trial court that it had the legal authority to strike that finding. When the trial court stated its preference that Bustamante be allowed to withdraw his plea and begin again, defense counsel refused.

In the face of defense counsels insistence, the trial court allowed the attorney to put on evidence in support of his claim. It agreed to review any writings in support of his argument, to take the matter under consideration, and then to determine about how to proceed. Bustamantes attorney wanted to present an oral argument on the issue of the trial courts authority to strike the probation ineligibility finding, but the trial court wanted to review the writings about this before doing so. It indicated that if it had any questions about the legal issues, defense attorney would have an opportunity to respond to the trial courts questions.

The trial court also opined that, even if it could strike the probation ineligibility finding, it lacked the authority to strike the habitual offender finding mandating a five-year enhancement for a second serious felony. (See  667, subd. (a), 1385, subd. (b).) Bustamantes counsel argued that the trial court could impose the five-year enhancement as part of a prison sentence that it would then suspend, allowing a grant of probation. The prosecutor appeared to agree that the trial court had the authority to do this, if it was persuaded by Bustamantes other argument.

At sentencing, the trial court offered Bustamantes counsel an opportunity to offer argument about its discretion to strike the probation ineligibility finding. He asserted that the trial court had this authority in the interest of justice. (See  1385.) The prosecution argued that the cases assumed that a section 1203.085 finding was mandatory, precluding a grant of probation. In the end, the trial court concluded that it did not have authority to strike the probation ineligibility finding. It cited case law, statutory language and legislative history in support of its conclusion. Thus, it denied Bustamantes motion to strike that finding.^[7]

On the basis of the probation ineligibility finding, the trial court concluded that Bustamante was not eligible for probation. Instead, he was sentenced to nine years in state prisona lower base term of two years for first degree burglary, doubled to four years because of his prior strike, with a five-year enhancement for his prior serious felony. (See  459, 460, subd. (a), 667, subd. (a), 1170.12, subd. (c)(1).)

II. DISCUSSION

A. Waiver

In his appeal, Bustamante contends that the trial court violated the terms of his court-approved plea agreement by failing to consider his motion to strike the probation ineligibility finding. He now acknowledges that the trial court had no discretion to grant the motion, but argues that as the terms of the plea agreement could not lawfully be fulfilled, the trial court violated his federal constitutional right to due process by not giving him an opportunity to withdraw his nolo contendere plea. (See U.S. Const., 14th Amend; Santobello v. New York(1971) 404 U.S. 257, 262.)

Preliminarily, the Attorney General counters that Bustamante waived his right to raise this issue on appeal because he was offered an opportunity to withdraw his plea, but chose not exercise it. It reasons that by his rejection of this offer, Bustamante forfeited his right to appeal on this ground. However, the record on appeal does not support the factual underpinning of the Attorney Generals assertion. Bustamante did not refuse to withdraw his pleahis defense counsel did.

The distinction is critical. An attorney representing a criminal defendant may not exercise its power to control courtroom proceedings in a manner that deprives the defendant of fundamental rights. (People v. Brown (1986) 179 Cal.App.3d 207, 215.) The decision whether to withdraw a plealike the decision to enter a plea in the first placeis such a fundamental right that the defendant is entitled to make as a personal decision. (See ibid.; see also  1018; Brookhart v. Janis (1966) 384 U.S. 1, 4, 7; People v. Rogers (1961) 56 Cal.2d 301, 305-306 [stipulation effectively withdraws guilty plea].) As the trial court in this matter did not offer Bustamante himself an opportunity to withdraw his plea, we cannot impute defense counsels refusal to consider this option to constitute Bustamantes waiver on appeal without violating his fundamental rights. As this waiver argument fails, we turn to the merits of the appeal.

B. Misadvisement of Plea

Before taking a guilty plea or nolo contendere plea, a trial court must admonish the defendant of the constitutional rights being waived and the direct consequences of the plea. (People v. Walker (1991) 54 Cal.3d 1013, 1022 (Walker); Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; see Boykin v. Alabama (1969) 395 U.S. 238, 242-244.) Ineligibility for probation is a direct consequence of a plea for such purposes. (People v. Moore (1998) 69 Cal.App.4th 626, 630; People v.Crosby (1992) 3 Cal.App.4th 1352, 1355; People v. Caban (1983) 148 Cal.App.3d 706, 711.) In this matter, Bustamante admitted the allegation of probation ineligibility believing that he retained the right to ask the trial court to strike the resulting probation ineligibility finding. The plea agreement and the trial courts approval of it presupposes that it was legally possible for the trial court to exercise its discretion to strike the probation ineligibility finding. A trial court may strike some sentencing findings in the interest of justice. (See  1385, subd. (a).) However, the Bustamante trial court had no discretion to strike the probation ineligibility finding and grant probation in the face of his admission of the section 1203.085, subdivision (a) allegation. (See People v.Thomas (1992) 4 Cal.4th 206, 208-214 [no discretion to strike firearm use sentence enhancement]; People v.Tanner (1979) 24 Cal.3d 514, 518-520 [no discretion to strike probation ineligibility finding based on firearm use]; People v. Neild (2002) 99 Cal.App.4th 1223, 1225-1227 [no discretion to strike probation ineligibility finding based on prior violent felony]; see also  1203.085, subd. (a) [probation ineligibility finding based on prior serious felony].)

The California Supreme Court sets out a two-step framework for considering the issues raised when a defendant attempts to set aside a consummated plea agreement after sentencing based on a trial courts error in advising of certain consequences of a plea of guilty or nolo contendere. First, we must consider whether the defendant was misadvised at the plea stage. (See People v. McClellan (1993) 6 Cal.4th 367, 375 (McClellan); In re Moser (1993) 6 Cal.4th 342, 350-351, 353 (Moser); Walker, supra, 54 Cal.3d at pp. 1019-1020; Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605; see also  1016, subd. 3 [legal effect of nolo contendere plea is same as guilty plea].) Second, we determine whether the parties have adhered to the terms of a plea agreement. The court cautions us to analyze these issues separately, as the nature of the rights involved and the consequences of violation differ in substantial ways. Indeed, the court has criticized the confusion generated by appellate courts blurring of the distinctions between these two separate issues. (See McClellan, supra, 6 Cal.4th at p. 375; Moser, supra, 6 Cal.4th at p. 351; Walker, supra, 54 Cal.3d at p. 1020.) Although Bustamante only argues in his appeal that the trial court violated his plea agreement, we analyze both of these related issues, mindful of our Supreme Courts admonition to avoid the confusion that may result if we do not.

Our first task is to determine whether the trial court misadvised the defendant about the direct consequences of his plea. (McClellan, supra, 6 Cal.4th at pp. 375-376; Moser, supra, 6 Cal.4th at pp. 351-352; Walker, supra, 54 Cal.3d at pp. 1022-1024.) We ask whether the trial court gave inadequate or erroneous advice about the direct consequences of the plea before the defendant entered it. (See, e.g., Moser, supra, 6 Cal.4th at pp. 345, 351-352; see also McClellan, supra, 6 Cal.4th at p. 376; Walker, supra, 54 Cal.3d at p. 1022.) In our case, the trial court incorrectly led Bustamante to believe that it would consider a motion to strike the probation ineligibility finding that he proposed to admit as part of his nolo contendere plea, assuming that it had discretion to do so. In fact, a trial court has no discretion to strike the admitted probation ineligibility finding and grant probation. (See People v. Neild, supra, 99 Cal.App.4th at pp. 1225-1227 [violent felony]; see also  1203.085, subd. (a) [serious felony].) Thus, the trial court failed to correctly inform Bustamante of the direct consequences of his plea. (See McClellan, supra, 6 Cal.4th at p. 376; Moser, supra, 6 Cal.4th at pp. 351-352; see also Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605; Walker, supra, 54 Cal.3d at pp. 1022, 1029.)

Having found trial court error, we next determine whether this error alone entitles Bustamante to an opportunity to withdraw his plea. (See McClellan, supra, 6 Cal.4th at pp. 376-377; Moser, supra, 6 Cal.4th at p. 352; Walker, supra, 54 Cal.3d at pp. 1022-1024, 1030.) Unlike the admonition of constitutional rights before a plea is entered, the advisement of the consequences of a plea is not constitutionally mandated, but is a judicially declared rule of criminal procedure. (Walker, supra, 54 Cal.3d at p. 1022; see People v. Wright (1987) 43 Cal.3d 487, 495, disapproved on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1174-1178, cert. den. sub nom.Howard v. California (1992) 506 U.S. 942.) The Attorney General asserts that Bustamante waived his right to raise this issue on appeal because he failed to move to withdraw his plea when the trial court imposed a sentence that deviated from the plea agreement. A defendant is entitled to the claimed relief based on a finding of trial court misadvisement of the consequences of a plea only if the defendant makes a timely objection at sentencing. (McClellan, supra, 6 Cal.4th at p. 377; Walker, supra, 54 Cal.3d at pp. 1023, 1029-1030.) In this matter, Bustamante did not object at sentencing that the trial court misadvised him of the consequences of his plea because it had no authority to grant the motion to strike his probation ineligibility finding.^[8] Thus, he waived this claim of error. (See, e.g., McClellan, supra, 6 Cal.4th at pp. 377, 380-381; see also Walker, supra, 54 Cal.3d at p. 1023.)^[9]

C. Violation of Plea Agreement

Bustamantes failure to establish that he is entitled to withdraw his plea based on the trial courts misadvisement of the consequences of his plea does not end our inquiry. We must also determine the related issue of whether the trial courts error constituted a violation of the plea agreement, entitling him to some form of relief. (See McClellan, supra, 6 Cal.4th at pp. 378-379; Moser, supra, 6 Cal.4th at pp. 351, 353-354; Walker, supra, 54 Cal.3d at pp. 1024-1026, 1029.) A negotiated plea agreement is a contract. (People v.Shelton(2006) 37 Cal.4th 759, 767; see People v. Renfro (2004) 125 Cal.App.4th 223, 230.) When a defendant enters a plea in exchange for specified benefits both partiesincluding the statemust abide by the terms of the agreement. (Walker, supra, 54 Cal.3d at p. 1024; see  1192.5.) If the plea rests in any significant degree on a promise such that it can be said to have been part of the inducement or consideration for the agreement, the promise must be fulfilled. (Santobello v. New York, supra, 404 U.S. at p. 262 [prosecutor]; Moser, supra, 6 Cal.4th at p. 355; Walker, supra, 54 Cal.3d at p. 1024.) The United States Supreme Court recognizes that the defendant has a due process right to implementation of the plea agreement, rendering a significant deviation of the agreement by the state to a constitutional violation warranting some remedy. (See People v. Mancheno (1982) 32 Cal.3d 855, 860 [state official]; see also Santobello v. New York, supra, 404 U.S. at p. 262; Walker, supra, 54 Cal.3d at pp. 1024, 1030; People v. Renfro, supra, 125 Cal.App.4th at p. 230.)

The Attorney General counters that Bustamante failed to raise this objection at sentencing, thus waiving this argument. A defendant must object to being sentenced on terms that deviate from those specified in the plea agreement. (See Walker, supra, 54 Cal.3d at p. 1025; People v. Victorian, supra, 2 Cal.App.4th at p. 958 & fn. 5.) In the context of a claim of violation of a plea agreement, the defendant cannot be held to have waived this claim by failure to object at sentencing unless the trial court gave the defendant the full admonitions required by section 1192.5. (See McClellan, supra, 6 Cal.4th at p. 379 fn. 9; Walker, supra, 54 Cal.3d at pp. 1024-1025, 1029-1030; People v. Victorian, supra, 2 Cal.App.4th at p. 958.) Absent compliance with the procedure set out in section 1192.5, a defendants constitutional right to the benefit of the plea agreement cannot be waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right. A court may not presume from mere silence that a defendant waived implementation of the consideration that induced the waiver of constitutional rights and the entry of a plea instead. (Walker, supra, 54 Cal.3d at pp. 1025, 1029-1030; People v. Mancheno, supra, 32 Cal.3d at p. 864; People v. Johnson (1974) 10 Cal.3d 868, 871-872 [ 1192.5 advice requirement is mandatory].)

Section 1192.5 requires the trial court to give three admonitions to the defendant before entry of a plea pursuant to a court-approved plea agreement. It must advise the defendant (1) that its approval of the plea is not binding, (2) that it may withdraw its approval of plea at the time set for the hearing on the application for probation or pronouncement of judgment, and (3) that if it withdraws its approval, the defendant shall be given an opportunity to withdraw the plea if the defendant so desires. ( 1192.5.) In this case, the trial court did not give the full admonition required by statute before taking Bustamantes plea. (See, e.g., People v. Victorian, supra, 2 Cal.App.4th at p. 958.)

However, the Attorney General asserts that the written change of plea form that Bustamante signed constitutes the functional equivalent of a section 1192.5 admonition. (See People v.Panizzon (1996) 13 Cal.4th 68, 83 [validly executed waiver form as proper substitute for personal admonishment of consequences of plea]; see also Walker, supra, 54 Cal.3d at p. 1030 [encouraging use of standard form at plea stage].) The form stated The Court reserves the right to withdraw its consent to any sentence limitation agreement; and, in the event, I will be permitted to withdraw my plea(s) of guilty or nolo contendere and all charges will be reinstated. (Italics added.) This language seems to state the essence of the admonition that statute requires. (See  1192.5.)

Bustamante contends that the form did not put him on notice that he could move to withdraw his plea if the trial court could not exercise its discretion in the manner set out in the plea agreement. He argues that the any sentencing limitation agreement phrase in that form refers only to the imposition of a prison term greater than the nine years that he understood that he might receive. He views the language of the change of plea form as significantly narrower than the statutory language.

We disagree, finding the reference to any sentencing limitation to be not narrow, but quite broad. Certainly, itencompasses all sentencing determinations, of which the issue of discretion to grant probation is one. In the context of the case before usone in which the evidence of guilt was strong and the underlying facts of the admitted allegations would have been relatively easy to provethe decision whether Bustamante would be granted probation or would be sentenced to prison was the primary issue in the case. Even at plea stage, the trial court was clearly skeptical of defense counsels argument that it had discretion to grant probation, suggesting an uphill battle on the Bustamantes key concernwhether he would be given probation.

The placement of the cited language within the form is also significant. The upper term limit was the first of four sentence-related terms of the plea agreement, while the authorization to permit Bustamante to seek the trial courts discretion to strike the probation ineligibility finding was the second. The cited language appearsnot immediately after the upper term limitation specified on the first page of the formbut after all of the terms of the plea agreement, including all four of its sentence-related terms, were set out.

Having reviewed the form language and the statute, we are satisfied the cited language formed the functional equivalent of a section 1192.5 admonition. Thus, the change of plea form that Bustamante signed put him on notice that he had a right to withdraw his nolo contendere plea if the terms of the plea agreement were not met. As he received a section 1192.5 admonition in written form, his failure to object at sentencing constitutes a waiver of his right to challenge any violation of the plea agreement on appeal. (See Walker, supra, 54 Cal.3d at p. 1025; People v. Victorian, supra, 2 Cal.App.4th at p. 958 & fn. 5.)^[10]

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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

^[2]Some of these facts are taken from the preliminary hearing transcripts and the probation departments sentencing report.

^[3]The information originally alleged this strike within the meaning of subdivision (c)(2) of section 1170.12, but the information was later amended to refer to subdivision (c)(1) of that section.

^[4]In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense . . . shall run consecutively. ( 667, subd. (a)(1).) First degree burglary is an enumerated serious felony. (See  459, 460, subd. (a); former  1192.7, subd. (c)(18).) A trial court has no authority to strike a section 667 sentence enhancement for prior conviction of a serious felony. ( 1385, subd. (b).)

^[5]If a defendant has one prior felony conviction that has been pled and proved, the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction. ( 1170.12, subd. (c)(1).)

^[6]A person convicted of an offense punishable by imprisonment in state prison but without an alternative sentence to a county jail shall not be granted probation if the offense was committed while the person was on parole following a term of imprisonment imposed for a serious felony. ( 1203.085, subd. (a); see former  1192.7, subd. (c).) A first degree burglary is an enumerated serious felony. (See  459, 460, subd. (a); former  1192.7, subd. (c)(18).)

^[7]The trial court also denied Bustamantes related Romero motion to strike his prior strike so that his prison sentence would not be doubled, concluding that granting that motion would not be in the interests of justice because his prior residential burglary was a serious felony. (See  1170.12, subd. (c)(1), 1385.)

^[8]Bustamante asserts on appeal that he cannot be held to have waived this claim of error because the trial court failed to admonish him of his right to withdraw his plea. (See  1192.5.) However, the California Supreme Court has held that a trial courts failure to give a proper section 1192.5 admonishment at the plea stage does not absolve a criminal defendant of the obligation to raise an objection at sentencing as a prerequisite to challenging a plea on misadvisement grounds. (See McClellan, supra, 6 Cal.4th at pp. 377-378; Walker, supra, 54 Cal.3d at pp. 1024-1025; People v. Victorian (1992) 2 Cal.App.4th 954, 958 & fn. 5; see also pt. II.C., post.)

^[9]In light of this conclusion, we need not determine whether Bustamante established prejudice resulting from the trial courts misadvisement. (See McClellan, supra, 6 Cal.4th at pp. 378, 381; Moser, supra, 6 Cal.4th at p. 352.)

^[10]In November 2006, we took judicial notice of various exhibits that Bustamante provided to us without making a finding of relevance. In light of our conclusion in this case, we need not determine whether or not those exhibits are relevant.