People v. Rodriguez

191 Cal.App.3d 1566 (1987) 237 Cal. Rptr. 137 THE PEOPLE, Plaintiff and Respondent,

v.

VICTOR ZAVALA RODRIGUEZ, Defendant and Appellant.

Docket No. F006757. Court of Appeals of California, Fifth District.

May 21, 1987. [1567] COUNSEL

Jeff Reich, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, and Garrick W. Chock, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

BEST, J.

Defendant was convicted by plea of violating Health and Safety Code section 11350, possession of heroin. He was ultimately sentenced to the upper term of three years, execution of which term was suspended, and was granted probation for a period of five years on condition, among others, that he serve one year in the county jail.

[1568] Defendant's sole contention on appeal is that the trial court abused its discretion in denying his motion to withdraw his guilty plea. We agree.

FACTS

The facts underlying defendant's violation of Health and Safety Code section 11350 are not pertinent to the appeal. Defendant contends only that the trial court erred in denying his motion to withdraw his guilty plea. The facts relevant to this appeal are that on May 10, 1985, defendant pled guilty to possession of heroin (Health & Saf. Code, § 11350). At the time of defendant's plea, the trial court stated to defendant that after discussing the matter with defense counsel and reviewing the records, it would sentence defendant to no more than nine months in county jail as a condition of felony probation. Defendant was also told that if, at the time of sentencing, the court determined to sentence defendant to more than nine months in county jail, defendant could set aside his guilty plea and go to trial. After accepting defendant's guilty plea and determining there was a factual basis for the plea, the trial court set the sentencing hearing for June 12, 1985.