People v. Torrez

Opinion

FUKUTO, J. Jose Luis Torrez appeals from the judgment entered following his pleas of guilty to five counts of lewd conduct with a child under the age of fourteen years and one count of incest, and admissions that he occupied a position of special trust and committed acts of substantial sexual conduct in the commission of each offense. (Pen. Code, §§ 288, subd. (a), 285, 1203.066, subd. (a)(9).) He was sentenced to state prison for six years and contends: (1) that the superior court was without jurisdiction because an information was never filed; (2) that his pleas and admissions must be set [754]aside because the trial court failed to advise him that admission of the Penal Code section 1203.066 allegations rendered him presumptively ineligible for probation; (3) that trial counsel was incompetent because he failed to argue that appellant was eligible and suitable for probation; (4) that the trial court abused its discretion in denying probation and sentencing appellant to the midterm of six years.

A felony complaint was filed in the municipal court of the Citrus Judicial District charging appellant with five counts of lewd conduct with a child under the age of fourteen years and one count of incest, and accompanying special trust allegations. Appellant pleaded not guilty and denied the special trust allegations. At appellant’s request, the preliminary hearing was continued and the matter transferred to the Los Angeles County Superior Court for a prepreliminary hearing.1

At the prepreliminary hearing, a negotiated disposition of the case was reached by the parties and the court, and placed on the record. Appellant waived his rights to preliminary hearing and trial, pleaded guilty to all counts, and admitted all accompanying special trust allegations.2 In return, the court promised to commit appellant to the Department of Corrections for a diagnostic study pursuant to Penal Code section 1203.03, and agreed to be bound by the recommendation contained in the diagnostic report. The court stated, in relevant part: “Now, if they recommend a state penitentiary sentence, I have agreed to limit that sentence to a total term of six years in the state penitentiary. ... [10 Now, if they recommend a grant of probation, I will be bound by that recommendation and you’ll be placed on probation for a period of five years, on various terms and conditions. One of those terms will involve your serving a total term of one year in the Los Angeles County Jail, less any time that you would have already served up until that time. . . .”