IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
April 22, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DELFINO CONTRERAS CARDENAS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 04-3880)
The opinion of the court was delivered by: Nicholson, J.
P. v. Cardenas
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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 plea. (People v. Walker (1991) 54 Cal.3d 1013, 1024; accord, People v. Panizzon (1996) 13 Cal.4th 68, 80.)
The court did not err.
A "'negotiated plea agreement is a form of contract,'" and acceptance of the agreement binds the court and the parties. (See People v. Segura (2008) 44 Cal.4th 921, 930; People v. Panizzon, supra, 13 Cal.4th at p. 80 ["'[w]hen a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.'"].) But when "'a defendant granted probation as part of a plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea.' (Citations.]" (People v. Segura, supra, 44 Cal.4th at p. 934, original italics; People v. Martin (1992) 3 Cal.App.4th 482, 487.) "'A consummated plea bargain is not a perpetual license to a defendant to violate his probation. The plea bargain does not insulate a defendant from the consequences of his future misconduct. "A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever."'" (Ibid.)
Application of these principles suggests that defendant, having had his probation revoked after twice violating it, was no longer entitled to rely on that provision of the plea agreement that established the maximum prison term at three years should he be found ineligible for probation at the outset.
Arguing that the trial court was obligated to sentence him in accordance with the plea agreement even after he violated probation, defendant relies on People v. Velasquez (1999) 69 Cal.App.4th 503. Velasquez is distinguishable on its facts: the plea agreement in Velasquez provided that, if the defendant were to violate probation, a state prison sentence no greater than three years could be imposed; the problem in that case was that the statute allowed prison terms of two, four or six years. (Id. at p. 505.) After Velasquez violated his probation, the trial court sentenced him to the agreed-upon three-year term. But because the parties' "negotiated disposition, either by negligence or design, . . . specifies a sentence not authorized by law," (id. at p. 505), the Court of Appeal reduced it to the statutory minimum of two years.
The written plea agreement in this case, unlike the bargain in Velasquez, placed no limit on the prison term defendant would receive if his probation were revoked. Defendant agreed instead that, if he were "found to have violated any term of [his] probation, [he could] be sentenced without regard to the conditional terms of this plea agreement."
Having agreed that he could be sentenced upon violating his probation without regard to the conditional terms of his plea agreement, defendant cannot insist that the court was bound by any maximum sentence stated there.
The judgment is affirmed.
We concur: RAYE, P. J. BUTZ, J.