People v. Manriquez

Opinion

DABNEY, Acting P. J.

Defendant entered a plea of guilty to a charge of burglary (Pen. Code, § 459), in return for a promise to strike two 5-year enhancement allegations charged under Penal Code section 667.

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It was also agreed that he would receive the upper term of six years, but that it would run concurrently with a four-year sentence recently imposed in a separate case, with full credits.

On this appeal, he asserts that he was confused when he pleaded guilty to burglary because he did not understand the elements of the offense and he thought he was pleading guilty to assault with a deadly weapon; thus, the trial court should have granted his motion to withdraw the plea. He also argues that the trial court violated the bargain when it imposed a restitution fine in the amount of $500.

We reject his attempt to challenge the validity of his plea, finding it barred by the absence of a certificate of probable cause. However, his contention that the restitution fine was improper is cognizable on appeal. We find it meritorious, and will direct that the judgment be modified accordingly.

Statement of Facts

Evidence at the preliminary hearing indicated that defendant entered a residence, forcibly and without permission, and proceeded to administer a vicious beating to one of the persons present, striking him on the head with a bottle and then, when the victim fell to the floor unconscious, continuing to

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strike him with fists and feet. This evidence was relayed through a police officer, and represented the consistent statements of five witnesses.

Discussion

A.

As effective at the time defendant entered his plea, was sentenced, and filed his notice of appeal, Penal Code section 1237.5 barred appeals from a judgment of conviction upon a guilty plea unless the trial court had executed a certificate of probable cause.

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