People v. Cardenas CA2/6

Filed 11/24/14 P. v. Cardenas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B255109 (Super. Ct. No. 2012035557) Plaintiff and Respondent, (Ventura County) v. JONATHAN DAVID CARDENAS, Defendant and Appellant.

Jonathan David Cardenas appeals an order denying a motion to withdraw 1 his plea as a Second Strike offender to attempted robbery (Pen. Code, §§ 664/211) with a prior serious felony conviction (§667. subd. (a)). The trial court sentenced appellant to seven years eight months prison but failed to strike an arming enhancement (§12202, subd. (b))(1)) and a prison prior enhancement (§ 667.5, subd. (b)) as agreed by the parties. We modify the sentence to reflect that the arming and prison prior enhancements were stricken and affirm the judgment as modified. The sentence remains the same: seven years, eight months state prison. Procedural History Appellant was charged with attempted robbery and use of a knife (§ 12202, subd. (b)(1)) after he vaulted over a store counter, held a knife to the clerk's throat, and demanded that the clerk open the store safe. Appellant fled before the safe 1 All statutory references are to the Penal Code.

was opened. Oxnard Police Officer Jose Velazquez identified appellant from a surveillance video and the clerk identified appellant from a photo. The public defender declared a doubt concerning appellant's competency. (§ 1368.) Appellant was found competent to stand trial, made three Marsden requests (People v. Marsden (1970) 2 Cal.3d 118) which were denied, and was granted leave to represent himself (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]). Ten weeks later, appellant waived his Faretta rights and the trial court reappointed the public defender. Pursuant to an October 22, 2013, felony disposition statement, appellant pled no contest to attempted robbery and admitted the knife enhancement, a prior strike enhancement (§§ 667, subds. (c) & (e); 1170.12, subds. (a) & (c)), a prior serious felony conviction enhancement (§ 667, subd. (a)(1)), and a prison prior enhancement (§ 667.5, subd. (b)). When the change of plea of entered, counsel recited the plea terms on the record: "[Deputy Public Defender Randy Tucker]: I've indicated to Mr. Cardenas that at the time of sentencing for purposes of the seven year, eight month sentence, the one-year 667.5(b) prior and the one-year personal use of a deadly weapon enhancement will be stricken. [¶] Have I said anything incorrect, your Honor? "THE COURT: No. That's what is contemplated. "MR. TUCKER: Do you have any other questions of me? "THE DEFENDANT: No. "MS. MALAN [Deputy District Attorney]: And, your Honor, for the record, the People were asking for eight years, eight months. I do understand the Court is inclined to give the defendant seven years, eight months but I wanted to put that on the record. "THE COURT: Noted."