(Super. Ct. No. BA350582) (Los Angeles County) Ronald S. Coen, Judge Superior Court County of Los Angeles
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
A negotiated decision specifying that probation would be granted if a diagnostic report (Pen. Code § 1203.03)*fn1 were "favorable" necessarily incorporates the provisions of section 1203.03 as part of the agreement. This Penal Code section requires the director of the Department of Corrections to make "his" recommendation on whether probation or prison is appropriate. If he, and he alone, recommends that probation be granted, then the report is "favorable." If he, and he alone, recommends the contrary, it is not "favorable."
Armando Xique Nocelotl appeals from the judgment entered following his no contest plea to kidnapping in violation of Penal Code section 207, subdivision (a). Pursuant to the negotiated disposition, he did not admit the allegation that the victim was under 14 years of age. (§ 208, subd. (b).) Appellant was sentenced to prison for the middle term of five years.
Appellant contends that 1. the trial court abused its discretion in denying his motion to withdraw his plea and 2. the trial court breached the negotiated disposition by refusing to grant probation. We affirm.
The victim, Mylin F., was a five-year-old kindergarten student. At the end of the school day, she was sitting on a bench waiting for her older brother to take her home. She was not acquainted with appellant. Appellant came up to her, grabbed her by the hand and escorted her off the school property.
Appellant and Mylin F. walked to a vehicle that was parked away from the school. Appellant "helped her get into the car in the front passenger seat." Mylin F. "became very scared and began to cry."
Appellant drove to his home and parked the car. Appellant's mother approached the vehicle and saw Mylin F. inside. Mylin F. "was crying and scared." Appellant's mother and sister drove Mylin F. back to the school, where she was reunited with her parents. Mylin F.'s father testified that she "was crying dramatically, scared, and just yelling out, 'Mommy, Mommy, Mommy.' "
The trial court and the parties reached a negotiated disposition of the case. The trial court orally set forth the terms of the settlement: "[Appellant] will plead no contest or guilty to [kidnapping]. [¶] He will be sent for a diagnostic study pursuant to Penal Code section 1203.03.[*fn2 ] [¶] If the report is favorable, a promise from me is that [appellant] will receive a probationary sentence with 360 days in custody or less. [¶] If the report is not favorable and [appellant] is sent to state prison, it is a [middle] term lid of five years as a promise from the People." Appellant then pleaded no contest to simple kidnapping.
The Department of Corrections prepared a diagnostic study consisting of three documents. One document is a psychological evaluation of appellant by two clinical psychologists. They opined that appellant had "showed genuine remorse" and should be granted probation.
The second document is an evaluation of appellant by institutional staff at North Kern State Prison, where he was sent for the diagnostic study. The evaluation was signed by two "correctional counselors." They noted that appellant "has a drinking problem" and "considers himself a recovering alcoholic." Appellant ...