People v. Ponciano CA1/1

Filed 3/28/14 P. v. Ponciano CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A135769 v. JOHNNY LEE PONCIANO, (Del Norte County Super. Ct. Nos. CRF-11-9653, CRF- Defendant and Appellant. 11-9619-3, & CRF-11-9649)

INTRODUCTION This appeal involves three cases in which the trial court imposed sentence together, pursuant to a negotiated disposition. Defendant Lee Ponciano was found guilty by a jury of several crimes, including first degree attempted burglary (Pen. Code, §§ 664, 459, 460),1 in one case, pleaded guilty to petty theft with a prior in another, and had the third case dismissed under the plea agreement. On appeal, he maintains the plea agreement allowed the trial court to exercise its discretion to determine whether the eight- month sentence for petty theft should run consecutively or concurrently with the sentence in the burglary case, and the court failed to do so. The Attorney General maintains defendant cannot raise this issue because he failed to obtain a certificate of probable cause, and further asserts the plea agreement mandated the eight-month sentence run consecutively. We agree with the latter contention, and affirm.

1 All further statutory references are to the Penal Code unless otherwise indicated.

1

FACTUAL AND PROCEDURAL BACKGROUND We set forth only those facts necessary for a determination of the issues on appeal. On January 12, 2012, the Del Norte County District Attorney filed three informations. The first information in case No. CRF-11-9619-3 charged defendant with first degree attempted burglary (§§ 664, 459, 460), conspiracy to commit first degree burglary (§§ 182, 459, 460) and unauthorized possession of a hypodermic needle (former Bus. & Prof. Code, § 4140). The second information in case No. CRF-11-9649 charged him with petty theft with a prior (Pen. Code, §§ 666, 484). The third information in case No. CRF 11-9653 charged defendant with petty theft with a prior and receiving stolen property (§§ 666, 484, 496, subd. (a)). In February 2012, the parties initially agreed to a global resolution of all three cases. The agreement included defendant pleading guilty to disorderly conduct instead of attempted burglary. The court expressed concern with the plea, noting the attempted burglary charge “sounded like a very strong case.” After reviewing the probation report, the court rejected the plea deal, but indicated it would consider other options, including “terminal disposition of a two-year sentence and the other sentence for the other felony being consecutive.” No plea agreement was reached, and defendant’s attorney indicated “he wants to have his day in court.” The case against defendant for attempted burglary, conspiracy and unlawful possession of a hypodermic needle went to trial, and a jury found him guilty of all counts. Following the conviction, but before sentencing, the prosecution noted “our offer is still two years on these [two] cases concurrent with his other matter.” Defendant’s attorney stated “I’ve conveyed that offer, and it’s been rejected.” The court set both cases for trial. At a hearing on June 6, defendant’s attorney stated the parties had reached an agreement. “Resolution is a stipulated term of, I think it’s the midterm on two—one count in each case concurrent to the case that he was convicted on the burglary charge.” The court indicated it “may or may not accept your plea bargain.”