P. v. Baez

Filed 8/25/06 P. v. Baez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Defendant Bernardo Baez was sentenced to prison following a no contest plea to a charge of attempted murder. As part of his sentence, the court ordered defendant to pay a restitution fund fine of $2,200. Defendant challenges the court's imposition of that fine on appeal, asserting that it was not part of his plea bargain. For reasons explained below, we reject defendant's challenge and we affirm the judgment.

BACKGROUND

Because the sole issue in this appeal concerns sentencing, our recitation of the facts will be brief.

As indicated in the probation report, the criminal charge against defendant arose from an incident in San Jose, which took place on October 27, 2003. Defendant and two others (Garcia and Cruz) attacked the 16-year-old victim, Jose R., who was dressed in blue. After attempting to determine whether the victim was affiliated with a rival gang, defendant and Garcia struck him with plastic milk crates, while Cruz kicked and hit the victim with his feet and hands. The victim suffered a skull fracture and lacerations; he was transported to San Jose Hospital, where he underwent emergency surgery.

Charges

In August 2004, by felony complaint, defendant was charged with one count of attempted premeditated murder for his part in the October 27th attack on Jose R. (Pen. Code, §§ 664, subd. (a)/187; further unspecified statutory references are to the Penal Code.) As sentence enhancements, the complaint specially alleged infliction of great bodily injury, perpetration of the crime for the benefit of a criminal street gang, and personal use of a deadly weapon. (§§ 12022.7, subd. (a), 1203, subd. (e)(3) [great bodily injury]; 186.22, subd. (b)(1) [gang enhancement]; 12022, subd. (b)(1) [personal use of a weapon].) A felony information was filed in November 2004.

Change of Plea

On April 29, 2005, defendant entered a plea of no contest to the count of attempted murder and he admitted the great bodily injury, personal weapon use, and gang allegations. In exchange, the prosecution agreed to strike the allegation of premeditation.

Before the court accepted defendant's plea, it sought and obtained his acknowledgement that he would be required to â€