(Super. Ct. Nos. S08CRF0075 & S11CRM0071)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Edgar Zavala Bringas entered into a plea agreement pursuant to which he received five years of formal probation and a prison term of 10 years four months, stayed. After finding defendant in violation of probation, the trial court lifted the stay. Defendant now purports to appeal from his sentence, contending that the court abused its discretion by enforcing the plea agreement and, as a result, lifting the stay on the sentence previously pronounced.
Because defendant failed to obtain a certificate of probable cause, we shall dismiss the appeal. (Pen. Code,*fn1 § 1237.5.)
FACTUAL AND PROCEDURAL BACKGROUND
On October 1, 2008, defendant was charged by information with first degree burglary (count 1; § 459), criminal threats (count 2; § 422), corporal injury to his child's parent with a prior conviction (count 3; § 273.5, subd. (e)(1)), assault with a deadly weapon or by means of force likely to produce great bodily injury (count 4; § 245, subd. (a)(1), assault by means of force likely to produce great bodily injury (count 5; § 245, subd. (a)(1)), dissuading a witness by force or threat (count 6; § 136.1, subd. (c)(1)), and cruelty to a child by inflicting injury (count 7; § 273a, subd. (b)). Counts 1, 2, 4, and 5 were alleged to be serious felonies. (§ 1192.7, subd. (c).) As to count 2, it was alleged that defendant personally used a deadly and dangerous weapon, a knife. (§ 12202, subd. (b).) It was also alleged that defendant served a prior prison term and did not thereafter remain free of custody for five years. (§ 667.5, subd. (b).)
According to the evidence presented at defendant's preliminary hearing, defendant ambushed Jessica A. as she was unlocking the door to her residence in the company of her children, aged 14 months and two years old. He pushed her inside and locked the door behind him. After pulling a cordless phone away from her, he put his arm around her throat and threatened to kill her if anyone was there. As he choked her, he also threatened to kill her if she called the police, and to kill her and her family if she told anyone else about the incident. He said that if he could not have her, no one else would. Believing defendant's threats, she struggled and tried to escape. During the struggle, defendant inflicted bruises on her legs, punched her in the head, and menaced her with a knife. She feared for her life during the incident. She had been placed in a safe house to avoid defendant before, but he had been able to find it.
Defendant entered into a written plea agreement. The agreement specified that defendant would plead guilty to counts 1, 3, 4, and 6, admit that counts 1, 4, and 6 were strikes, admit the prior conviction for violation of section 273.5, subdivision (a), and the prior prison term, in return for a sentence consisting of five years formal probation and a stayed prison term of 10 years four months. The agreement also stated: "Defendant understands any violation of probation, including technical violation[,] results in the stay [being] lifted [and] 10 y[ea]rs state prison imposed." Defendant initialed every provision of the agreement. His counsel wrote on the plea form: "I do not concur with the plea [and] have advised [d]efendant it is not in his best interests."
At the sentencing hearing, the trial court stated that it had reviewed the plea agreement, including defense counsel's advice that it was against defendant's best interests, and asked defendant whether he intended to disregard counsel's advice and enter the plea. Defendant said he did. The court asked whether defendant understood that any violation of probation, even a "technical" violation, would result in the lifting of the stay of the prison term; defendant said he understood. The court then went through all the terms of the agreement, and defendant said he understood them all. The court asked defendant whether he was under the influence of any substance that might affect his ability to understand the agreement, and whether anyone had made any threats or promises outside the agreement to induce him to enter into the agreement; he answered all of those questions in the negative.
Defense counsel stated that he had tried to explain the danger of pleading to three strikes and that defendant said he understood, but wanted to be released immediately to spend time with his father, who was dying of cancer: "From an emotional perspective he believes he has no choice but to take the plea." Defendant concurred in that account.
Defendant thereupon entered his plea and received the stipulated sentence.
On February 1, 2011, the People filed a petition to revoke defendant's probation, alleging that he had violated Vehicle Code section 23152, subdivisions (a) and (b). The trial ...