(Super. Ct. No. 06F06698)
The opinion of the court was delivered by: Hull , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Sergio Cabrales pleaded no contest to second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)--count one) and admitted that he personally used a handgun in the commission of the offense (Pen. Code, § 12022.53, subd. (b)). (Further statutory references are to the Penal Code unless otherwise indicated.) He also pleaded no contest to transportation of methamphetamine (Health & Saf. Code, § 11379--count three) with a Cruz waiver, which allows a trial court to withdraw its previous approval of a plea and sentence a defendant to a greater term than had been bargained for if the defendant willfully fails to appear for sentencing. (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)
Defendant was released on his own recognizance and ordered to return to court the following day. If he returned as directed, he was promised a state prison term of 12 years consisting of the low term of two years on count one plus 10 years for the enhancement. In addition, he would be permitted to then withdraw his plea to count three. If he did not return as ordered, he would receive a prison sentence of 16 years. Under the plea agreement, the court would dismiss two related counts (counts two & four) at sentencing and defendant would pay "a fine of up to $10,000 plus the penalty assessment," a restitution fine of not less than $200 and not more than $10,000, and victim restitution in an amount to be determined.
Defendant returned to court as directed. The trial court orally imposed the stipulated 12-year term on count one and a concurrent midterm on count three. Defendant was awarded 27 days' custody credit and four days' conduct credit, ordered to make restitution to the victim, and ordered to pay fines and fees including a $213.37 main jail booking fee and $23.50 main jail classification fee. The remaining counts were dismissed in the interest of justice in light of the plea. The relevant 2010 amendment to section 2933 does not entitle defendant to additional conduct credit because he was committed for a serious felony. (Former § 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
In February 2012, more than 120 days following the April 2011 commitment, the trial court attempted to strike count three in accordance with the plea agreement, but the attempt was statutorily ineffective. (§ 1170, subd. (d).)
Defendant contends, and the Attorney General concedes, he is entitled to specific performance of the plea bargain, which requires the striking of count three. Defendant further contends the trial court imposed the booking and classification fees without determining his ability to pay. We shall modify the judgment.
Because the matter was resolved by plea and the facts are not at issue, our statement of facts is taken from the prosecutor's statement of factual basis for the plea.
"On July 29th, 2006, in the County of Sacramento, [defendant] did by means of force and fear take money from the immediate presence and possession of Victor [F.] while personally using a .38 caliber special firearm, which is not an element of the underlying [violation of section] 211."