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The People v. Carlos Manuel Rojo-Moreno

June 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CARLOS MANUEL ROJO-MORENO, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. SF097720A, SF100571A, SF105628A)

The opinion of the court was delivered by: Mauro ,j.

P. v. Rojo-Moreno 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Carlos Manuel Rojo-Moreno pleaded guilty to possession of methamphetamine for sale and admitted a prior narcotics conviction. He contends on appeal that the trial court deprived him of due process by refusing to consider his performance under a confidential agreement with the People and law enforcement, and by refusing to determine whether mitigation of his sentence was appropriate in accordance with the agreement. Defendant also contends his rights were violated under People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), because he was not sentenced by the same judge who accepted his plea.

We conclude that because the confidential agreement induced defendant to enter his plea, the trial court was required to determine the terms of the confidential agreement and the performance under that agreement. Defendant may have already received the benefit of his bargain. Depending on the circumstances, however, the trial court may have been required to entertain a request for a reduced prison term in accordance with the agreement, or it may have been required to allow defendant to withdraw his plea.

We also conclude that the record is unclear whether defendant made an Arbuckle waiver, but he forfeited this issue on appeal. Nonetheless, the judge who took defendant's plea should conduct the remand proceedings unless that judge is not available due to retirement or other reasons unrelated to internal court administrative practices.

Moreover, we deem defendant to have raised on appeal whether he is entitled to additional presentence conduct credits. We conclude he is entitled to 339 days of presentence conduct credits.

We will vacate the sentence and remand the matter to the trial court for further proceedings.

BACKGROUND

On September 5, 2007, law enforcement officers executed a search warrant at a residence in Stockton. Defendant was in a van parked in the backyard, and the officers found over three grams of methamphetamine, a firearm, and paraphernalia associated with narcotics sales in the van. Defendant was charged with possession of methamphetamine for sale, possession of a firearm by a convicted felon, and possession of ammunition by a convicted felon (case No. SF105628A). With respect to the narcotics count, the information alleged further that defendant (1) was armed with a firearm; (2) had three prior felony convictions; and (3) was convicted previously of possessing methamphetamine within the meaning of Health and Safety Code section 11370.2, subdivision (a) and Penal Code section 1203.07, subdivision (a)(11), which provide respectively for a three-year sentence enhancement and ineligibility for probation.

At the time the charges were filed, defendant was on probation for possession of methamphetamine (case No. SF097720A) and possession of methamphetamine for sale (case No. SF100571A) pursuant to negotiated guilty plea agreements. In light of defendant's new misconduct, the court revoked probation and issued orders to show cause why sentence should not be imposed.

On April 21, 2008, defendant entered into a cooperation/plea agreement with law enforcement and the prosecutor with respect to the new charges. Defendant agreed to perform certain confidential services for law enforcement and if he performed as promised, then the prosecutor would recommend that defendant be sentenced to eight months for a violation of Health and Safety Code section 11378, possession of methamphetamine for sale. To facilitate the agreement, defendant would plead guilty to the possession charge and admit a prior conviction. At the time of the plea, the prosecutor would recommend that defendant be released on his own recognizance pending a sentencing hearing. If defendant did not fulfill the terms of the agreement, then the guilty plea would stand and defendant would receive a sentence of six years in prison. If defendant partially performed, the agreement said the prosecutor could "give" him "'partial credit,'" which meant a reduction in defendant's sentence.

The confidential agreement provides that defendant had 90 days to perform the specified services for law enforcement, but the district attorney had discretion to extend the duration of the agreement. If defendant disobeyed any law or carried a weapon during the course of the agreement, the agreement was "null and void." The parties agreed "that a violation of law shall not require ...


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