People v. Naranjo CA2/6

Filed 4/15/14 P. v. Naranjo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B248721 (Super. Ct. No. 2013007288) Plaintiff and Respondent, (Ventura County)

v.

ANTONIO HERNANDEZ NARANJO,

Defendant and Appellant.

Antonio Hernandez Naranjo appeals the judgment entered after he pled no contest to driving under the influence of alcohol with a prior felony drunk driving conviction (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a)). Appellant also admitted that his blood alcohol level was in excess of .15 percent (Veh. Code, § 23578) and that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to two years in state prison. Appellant contends the court failed to exercise its discretion to consider a lesser sentence, as contemplated under the plea agreement. We affirm. FACTS AND PROCEDURAL HISTORY Appellant was subjected to a traffic stop for Vehicle Code violations. During the stop, several empty beer cans and half a bottle of tequila were found in

appellant's car. Testing indicated that appellant had a blood alcohol level between .19 and .21 percent. Appellant accepted a plea bargain in which he agreed to plead guilty to one charge in exchange for the dismissal of other charges. In accepting the plea, appellant expressed his understanding that "the Court has offered to sentence [him] to no more than two years in prison, followed by a three-year-parole period[.]" When the court asked if appellant had any questions about his plea, appellant replied, "Well, no — it's just that maybe you could give me less than two years. But I don't think so — I don't know." At the April 23, 2013, sentencing hearing, the court found a factual basis for the plea and stated, "This was a stipulated two-year disposition. The Court is prepared to go forward on that basis." The court proceeded to deny probation, reasoning that "[t]his would be a case that would require an interest of justice finding to grant probation. The Court could not make that finding under the circumstances here involved and his criminal history." The court then imposed a two-year prison term and awarded appellant 100 days presentence custody credit. Appellant filed a timely notice of appeal and his request for a certificate of probable cause was denied. DISCUSSION Appellant contends the court erred in sentencing him to two years in state prison without considering whether to impose a lesser term, as provided under the plea agreement. The People respond that (1) appellant's claim is not cognizable without a certificate of probable cause; (2) the claim is forfeited because it was not raised below; and (3) appellant fails to demonstrate the court either misunderstood or failed to exercise its discretion to impose a lesser term. We reject the People's assertion that appellant's claim requires a certificate of probable cause. Appellant does not attack the validity of his plea, but rather claims the court failed to exercise discretion conferred to it under the plea. Such claims do not require a certificate of probable cause. (People v. Buttram (2003) 30 Cal.4th 773, 786- 787; see also People v. Cole (2001) 88 Cal.App.4th 850, 871 ["[W]hen the question of