P. v. Ybarra
Filed 4/15/11 P. v. Ybarra CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. ARMANDO MARIO YBARRA, Defendant and Appellant. | E049875 (Super.Ct.Nos. FVA027485 & FVW011868) OPINION |
APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight, III, Judge. Affirmed.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Armando Ybarra appeals from his 2009 25-years-to-life sentence under the Three Strikes Law. Ybarra’s second strike was from a 1998 conviction after a guilty plea, in which Ybarra pled guilty to two non-strike charges. Subsequently, the Legislature expanded the list of strike charges to include one of the charges to which Ybarra had pled guilty in 1998. In 2009, the trial court imposed the 25-years-to-life sentence after denying Ybarra’s Motion for Specific Performance of Prior Plea Bargain. Ybarra argues that this was error. As explained below, we conclude that the court did not err when it denied Ybarra’s motion and sentenced him as a third-striker.
Facts and Procedure
On August 7, 2006, Ybarra robbed a gas station by threatening the cashier with what looked like a pistol underneath his shirt. On July 28, 2008, a jury found Ybarra guilty of robbery. (Pen. Code, § 211)[1] After the verdict, Ybarra admitted allegations that he had previously been convicted of attempted murder (§§ 664 &187) and dissuading a witness (§ 136.1, subd. (c)(1)). Ybarra also admitted that the attempted murder conviction (from 1992) was a strike prior, but denied the allegation that the 1998 conviction for section 136.1 was a strike prior.
On September 18, 2009, the trial court heard Ybarra’s May 7, 2009, Motion for Specific Performance of Prior Plea Bargain. Ybarra argued that, because all parties understood that the purpose of the 1998 plea bargain agreement was to avoid Ybarra being convicted of a second strike, the conviction for section 136.1 could not be used as a strike prior, even though the Legislature had subsequently added that offense to the list of serious and/or violent felonies that could be used to enhance a sentence under the Three Strikes Law. The court received into evidence a stipulation that Ybarra’s counsel in the 1998 proceeding would testify that, although he did not specifically remember Ybarra, it was consistent with his custom and practice not to have advised Ybarra that the section 136.1 offense would never become a strike offense in the future. Ybarra testified that in 1998 he had pled guilty to grand theft person (§ 487), a lesser included offense of robbery, and dissuading a witness (§ 136.1) in order to avoid having to go to trial on a strike charge of robbery. Ybarra had instructed his counsel “specifically to negotiate a deal that did not carry a strike. I already had a prior strike and I knew the law, the three strike law and did not want to put myself in a position to face 25 to life since, so I asked him to negotiate a deal that did not carry a strike and included in the plea bargain a written statement.” Ybarra also testified that he had previously turned down a plea offer resulting in an identical sentence (three years), but that included the robbery charge instead of grand theft. After receiving evidence, including a copy of the 1998 plea agreement, and hearing argument from counsel for Ybarra and the People, the trial court denied Ybarra’s motion. The trial court reasoned, “if anything, it seems to me that the clear intent of the negotiation was to take that robbery charge and make sure on the plea bargain form that the robbery charge was not a strike. I think that’s what Mr. Ybarra was concerned.”
On September 25, 2009, the trial court denied Ybarra’s Romero[2] motion and on October 30, the court sentenced Ybarra to 25 years to life in prison. This appeal followed.
Discussion
Ybarra contends the terms of the plea agreement in his 1998 criminal case, which resulted in his conviction on section 136.1, dissuading a witness, precluded the use of that conviction as a strike prior in the current case, and seeks specific enforcement of the 1998 plea agreement.
“‘The parties must adhere to the terms of a plea bargain.’” (In re Moser (1993) 6 Cal.4th 342, 351 (Moser); People v. Walker (1991) 54 Cal.3d 1013, 1020 (Walker).) A defendant is entitled to relief for a violation of the terms of his plea agreement without a showing of prejudice. (Moser, supra, 6 Cal.4th at p. 354; Walker, supra, 54 Cal.3d at p. 1026; People v. Avila (1994) 24 Cal.App.4th 1455, 1461 (Avila).) However, in order to be deemed a term of a plea agreement, the circumstances must show that the “‘“plea rest[ed] in [a] significant degree on a promise or agreement . . . so that it can be said to be part of the inducement or consideration . . . .” [Citation.]’” (Walker, at p. 1024; Moser, at p. 355; Avila, at p. 1461.)
Here, several pieces of evidence in the record clearly support the trial court’s ruling that the continuation of the section 136.1 offense as a non-strike offense in perpetuity was not a term of the 2009 plea agreement. This is because the evidence shows that this was not what induced Ybarra into entering into the 1998 plea agreement.
First, the transcript of the June 2, 1998, plea proceeding indicates that all parties focused on the fact that the strike offense of robbery was being reduced to the lesser included and non-strike offense of grand theft person. The parties did not discuss the section 136.1 charge in this regard, as that charge had not been reduced from a strike offense and was not in any way altered from the information filed February 13, 1998. At the end of the hearing in which the guilty plea was entered, and before the court went on to take Ybarra’s admission that he had violated his probation, defense counsel to emphasized the purpose of the plea agreement for the record.
“[Defense Counsel]: Additionally, your Honor, I discussed with counsel and the Court and my client that the Grand Theft Person is not a strike.”
“[The Court]: Yes. And that is my understanding, and that is both counsel’s and the Court’s understanding, is that Grand Theft Person is not a strike.”
Second, the handwritten terms in section 9 of the plea agreement form itself, attached here as Exhibit A, has the handwritten notation “not a strike” next to and slightly above the line on which is written “3 years on 487(2).” The notation is not near the line on which is written “3 years 136.1(c) midterm.” A visual inspection of the plea agreement form indicates that the placement of the “not a strike” notation in relation to the two separate charges indicates that it applies only to the 487(2), grand theft person.
Third, Ybarra testified at his 2009 motion hearing that his defense counsel never told him that the dissuading a witness charge (or the grand theft person charge) would never become a strike. “He never told me nothing like that. He’s not a fortune teller in the future.” In addition, the parties stipulated that if Ybarra’s 1998 defense counsel were to testify, he would say that, although he did not specifically remember Ybarra, it was consistent with his custom and practice not to have advised Ybarra that the section 136.1 offense would never become a strike offense in the future.
To conclude, there is nothing in the record other than Ybarra’s own testimony to support his contention that the nature of the section 136.1 charge as a non-strike in perpetuity was ever a bargained-for term of his plea agreement. In fact, as discussed above, there are several clear indications in the record that the main concern of all parties was that Ybarra avoid conviction of robbery, a strike offense, and instead plead guilty to grand theft person, a non-strike offense.
Disposition
The conviction and 25-years to life sentence are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
MILLER
J.
CODRINGTON
J.
