Filed 11/29/18 P. v. Barrera-Izaba CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In April 2017, Glenn Josue Barrera-Izaba pled no contest to insurance fraud (Pen. Code, § 550, subd. (b)(3)). Pursuant to the plea agreement, the trial court placed Barrera-Izaba on probation, ordered him to serve 364 days in jail, and pay restitution of $10,000 to Farmers Insurance (Farmers).

Barrera-Izaba appeals. We affirm.[1]

FACTUAL AND PROCEDURAL BACKGROUND

In July 2016, the prosecution charged Barrera-Izaba with two counts of insurance fraud (§ 550, subd. (b)(3)) and three counts of grand theft of personal property (§ 487, subd. (a)). The complaint alleged Barrera-Izaba had four prior insurance fraud convictions (§ 550, subds. (d), (e)). The parties began discussing a negotiated disposition in December 2016. At hearings in December 2016 and February 2017, defense counsel acknowledged the plea offer required Barrera-Izaba to spend a year in jail and pay $10,000 in restitution to Farmers. At the February 2017 hearing, defense counsel stated Barrera-Izaba would have accepted the plea offer but he did not have a cashier’s check for $10,000. At the conclusion of that hearing, the court restated the terms of the plea, which—as relevant here—included one year in jail and a $10,000 payment to Farmers.

In April 2017, Barrera-Izaba pled no contest to one count of insurance fraud (§ 550, subd. (b)(3)). In the written change of plea form, Barrera-Izaba acknowledged the maximum penalty for the insurance fraud conviction included up to five years in prison, restitution, and restitution fines. Barrera-Izaba also acknowledged the plea disposition included probation, jail time, and restitution of $1,600 to G. DiFrancia.

At the plea and sentencing hearing, the court found the plea was knowing, intelligent,

and voluntary. Defense counsel stipulated to a factual basis for the plea based on the defense’s independent investigation. The court accepted the plea and granted the prosecutor’s motion to dismiss the other charges and allegations. It suspended imposition of sentence, placed Barrera-Izaba on five years’ probation, and ordered him to serve

364 days in jail. The court also ordered Barrera-Izaba to pay restitution of $1,600 to

G. DiFrancia and $10,000 to Farmers. At the conclusion of the hearing, the court asked Barrera-Izaba: “Do you understand and do you accept these terms of your probation?,” and he responded: “[y]es.”

Barrera-Izaba filed a notice of appeal in propria persona challenging the validity

of the plea and the sentence. He requested a certificate of probable cause: “Before I entered a plea, I was told by the D.A. that I owed restitution to Farmer’s . . . for a total

of $10,000, and $1,600.00 to . . . [G. DiFrancia.] I tried explaining that I had resolved

all complaints and issues with [G. DiFrancia] and that I, and my family did not owe

[G. DiFrancia] anything. I offered to provide written documentation of that to the District Attorney, and the D.A. was not interested in listening to me. [¶] I felt pressured to enter a plea and agree to restitution amounts, because I was threatened with prison if I did not agree to all terms for the plea bargain. I wish to challenge the restitution amounts.” The trial court denied the request for a probable cause certificate. Barrera-Izaba petitioned for writ relief. We denied the petition on the merits. (Barrera-Izaba v. Superior Court (Feb. 14, 2018, A153226) [nonpub. order].)

DISCUSSION

A defendant may not appeal a judgment of conviction entered on a no contest plea unless he has obtained a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1095–1096; §1237.5.) “Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379.) To determine “whether an appeal is cognizable without a certificate of probable cause, ‘ “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.]’ [Citation.] If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause.” (People v. Emery (2006) 140 Cal.App.4th 560, 564–565.)

Barrera-Izaba suggests the plea was not voluntary because he was “misled by the prosecutor” regarding his maximum sentence. In substance, this argument challenges the validity of the plea and is barred without a probable cause certificate. (People v. Emery, supra, 140 Cal.App.4th at p. 565.) Next, Barrera-Izaba claims the court failed to consider “factors in mitigation of the punishment.” People v. McNight (1985) 171 Cal.App.3d 620, 624 is on point. There, the defendant pled guilty to three counts of rape and a firearm use allegation and the prosecution dismissed various other charges and agreed to recommend a 21-year prison term. (Id. at p. 623.) The defendant appealed, arguing the trial court erred in failing to consider mitigating circumstances before sentencing. (Id. at p. 622.) McNight held this argument was not cognizable without a certificate of probable cause, explaining the “contention that consideration of mitigating circumstances should have resulted in imposition of a sentence less than the agreed-upon 21 years goes to the heart of the plea agreement itself.” (Id. at p. 624.) The same is true here. Barrera-Izaba’s claim that he was prejudiced by the court’s failure to consider mitigating circumstances “goes to the heart of the plea agreement.” (Ibid.) It is not cognizable on appeal without a certificate of probable cause.[2] (Id. at pp. 624, 625.)

Barrera-Izaba also argues the court erred by failing to inquire about the factual basis for the plea. “ ‘[A]n adequate inquiry into the factual basis for the plea addresses . . . issues such as the voluntariness of the plea and a knowing decision to plead guilty. . . . Thus, defendant’s claim that the factual inquiry undertaken . . . was insufficient is, after issuance of a certificate of probable cause, cognizable on appeal.’ ” (People v. Voit (2011) 200 Cal.App.4th 1353, 1368.) Barrera-Izaba did not obtain a probable cause certificate. As a result, his challenge to the adequacy of the trial court’s inquiry—a challenge to the validity of the plea—is barred. (People v. Hodges (2009) 174 Cal.App.4th 1096, 1103–1104.) The claim also fails on the merits. A trial court may accept “a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where . . . the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his . . . counsel and is satisfied with counsel’s advice.” (People v. Palmer (2013) 58 Cal.4th 110, 118.) Here, defense counsel, an officer of the court, stipulated to a factual basis for the plea based on his independent investigation. At the plea hearing, Barrera-Izaba affirmed he had discussed the elements of the crime, and his defenses, with counsel. Barrera-Izaba did not protest his factual innocence or contend he was dissatisfied with counsel’s advice. On this record, the court acted within its discretion in accepting the plea. (Id. at p. 119.)

Barrera-Izaba’s other arguments fare no better. To the extent they are cognizable on appeal in the absence of a certificate of probable cause, they are forfeited. For example, Barrera-Izaba contends the court failed to assess the “appropriateness” of the probation condition requiring him to serve jail time. The record demonstrates Barrera-Izaba knew the plea agreement required him to serve 364 days in jail. Defense counsel did not object at the plea and sentencing hearing when the court ordered Barrera-Izaba to serve 364 days in jail, and Barrera-Izaba explicitly agreed to the terms and conditions ordered by the court. Failure to timely object to a probation condition forfeits review of the objection on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234–237.)

We reach the same conclusion regarding Barrera-Izaba’s claim that the court failed to determine the “appropriateness” of the restitution to Farmers. The record establishes Barrera-Izaba knew restitution of $10,000 to Farmers was part of the plea agreement. At the plea and sentencing hearing, defense counsel did not object when the court ordered Barrera-Izaba to pay that restitution. When the court asked Barrera-Izaba, “do you understand and do you accept these terms of your probation,” he responded: “[y]es.” “An objection to the amount of restitution may be forfeited if not raised in the trial court. . . . 0The appropriate amount of restitution is precisely the sort of factual determination that can and should be brought to the trial court’s attention if the defendant believes the award is excessive. Here, because [Barrera-Izaba] did not object to the amount of restitution in the trial court, he forfeited our consideration of the issue on appeal.” (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218; In re Alexander A. (2011) 192 Cal.App.4th 847, 859 [claim that court abused its discretion in accepting stipulated amount of restitution was forfeited].) We reject Barrera-Izaba’s claim that the court improperly delegated the calculation of the restitution amount to the prosecutor.

Barrera-Izaba’s final contention is the court erred by failing to refer him for a probation report before sentencing (§ 1203, subdivision (b)(1)). He suggests the outcome of the plea and sentencing hearing would have been different had the court possessed a probation report. We disagree and conclude any assumed error in the court’s failure to comply with the statute was harmless. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 182.)

DISPOSITION

The judgment is affirmed.

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Jones, P.J.

We concur:

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Simons, J.

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Bruiniers, J.

A151037