P. v. Zavala

Filed 7/12/06 P. v. Zavala CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. James Quaschnick, Judge.

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jose Gonzales Zavala entered a plea agreement on December 15, 2004, in which he admitted an allegation that he committed second degree burglary (Pen. Code, §§ 459, 460, subd. (b), count three). The remaining allegations were dismissed. The court indicated it would impose and stay a 16-month prison term contingent on Zavala successfully completing a drug treatment program. A sentencing hearing was scheduled for January 28, 2005, but was continued on that date.

On February 25, 2005, Zavala failed to appear. A bench warrant was issued for his arrest. On July 11, 2005, the trial court rejected Zavala's request to either be reinstated on probation or for the court to impose its original indicated sentence of 16 months. The court found that Zavala failed to honor the terms of the plea agreement and sentenced appellant to prison for the three-year upper term. The court imposed a restitution fine and granted Zavala applicable custody credits.

PROCEEDINGS

Prior to changing his plea, Zavala executed a change of felony advisement, waiver of rights, plea form.^[1] The terms and conditions paragraph of the form state that the trial court indicated it would impose the mitigated 16-month term which it would stay. Count two and another pending criminal action against Zavala were to be dismissed. Zavala would have no initial state prison sentence as long as he remained in long-term drug treatment. Zavala acknowledged at paragraph 3a of the form that he faced a maximum prison term as a result of his plea of three years. Paragraph 4 of the form states that a consequence of Zavala's plea is that he must enter and successfully complete the Seeds of Change program.

At the change of plea hearing, Zavala's counsel stated that her client executed a change of plea to count three of the information. The People agreed to dismiss count two and dismiss a pending criminal action against Zavala. Counsel stated that the trial court indicated a mitigated state prison term and no initial state prison with the stipulation that Zavala is to participate in long-term treatment in the Change of Seeds program.

The court asked Zavala if he understood what his counsel said. Zavala replied that he did. The court noted that because of Zavala's long-term drug abuse, he was being given a chance to clean up. The trial judge explained to Zavala he was going to order that Zavala enter a one-year drug treatment program. Zavala told the court this was acceptable to him.

The court admonished Zavala that it was going to sentence him to prison for 16 months but stay execution of the sentence and place Zavala into a drug program for one year. If Zavala violated the terms of probation, he could go to prison for 16 months. When asked if he was willing to take that chance, Zavala replied yes. The court admonished Zavala with his constitutional rights. Zavala pled guilty to count three. Zavala entered into a general time waiver for sentencing.

At the conclusion of the hearing, the court once again admonished Zavala. The court explained to Zavala if he left the Seeds of Change program prior to the sentencing hearing scheduled for January 28, 2005, that the deal was off and he will go to prison. Zavala replied he understood this and that his attorney â€