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The People v. Delfino Contreras Cardenas

April 22, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DELFINO CONTRERAS CARDENAS, DEFENDANT AND APPELLANT.



(Super. Ct. No. 04-3880)

The opinion of the court was delivered by: Nicholson, J.

P. v. Cardenas

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Delfino Contreras Cardenas appeals from the six-year prison sentence imposed after he violated his probation. He claims the trial court violated his prior plea bargain by sentencing him to a prison term exceeding that specified in the plea agreement. We find no error and affirm the judgment.

FACTS

In this case, defendant was charged with 24 counts of sex abuse against a young male in his family, including forcible oral copulation and forcible sodomy. He eventually pled no contest to one count of oral copulation with a person under the age of 14 (Pen. Code, § 288a, subd. (c)(1))*fn1 and one count of sexual battery (§ 243.4, subd. (a)).

Two provisions of the written "Declaration and Order Regarding Plea of No Contest to a Felony" signed by defendant are pertinent here; defendant's initials appear next to both. Paragraph 8 contains the following handwritten text: "This is a conditional, negotiated plea. I will plead to counts #5 and #25 on the following conditions: Remaining Counts to be dismissed. Defendant to be referred to Dr. Johnston for a [section] 288.1 evaluation. If that evaluation is positive, D.A. will agree that defendant may be placed on probation even if an unusual case finding is required. If it is negative, and defendant is found not eligible/suitable candidate for probation, then the maximum he can receive is 3 yrs state prison. Any jail time imposed for count #25 shall be concurrent with count 5." Paragraph 9 states: "If I willfully fail to appear for my probation interview or for judgment or sentencing, without good cause, or later I am found to have violated any term of my probation, I may be sentenced without regard to the conditional terms of this plea agreement."

After it received the section 288.1 report, the trial court placed defendant on five years' formal probation on various terms and conditions.

Defendant twice violated his probation: first by failing to register as a sex offender, and then by being in contact with his minor grandchildren.

After the second probation violation, the trial court sentenced defendant to prison for the midterm of six years on the oral copulation charge, and the midterm of three years on the sexual assault charge, to be served concurrently.

DISCUSSION

Defendant contends the trial court impermissibly violated the terms of the original plea bargain by sentencing him to a six-year prison term when the plea bargain provided for a maximum term of three years in prison. He relies on the basic principle that once a plea bargain is accepted by the prosecutor and approved by the court, the defendant may not be sentenced to a punishment more severe than that specified in the ...


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