People v. Valdivia CA1/1

Filed 12/4/23 P. v. Valdivia CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A166930 v. MARC J. VALDIVIA, (Lake County Super. Ct. No. CR-964425) Defendant and Appellant.

Defendant Marc Valdivia appeals from an order granting probation after he pleaded no contest to one count of felony vandalism. The trial court imposed a four-year probation term, to which Valdivia specifically agreed under the plea agreement. Nonetheless, he now challenges that term, contending that the maximum probation term for his offense is two years under Penal Code1 section 1203.1, subdivision (a), and the sentence is therefore unauthorized. We agree with the Attorney General that the appeal must be dismissed because Valdivia failed to obtain a certificate of probable cause.

1 All further statutory references are to the Penal Code.

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I. FACTUAL AND PROCEDURAL BACKGROUND The incident giving rise to the charges against Valdivia occurred on August 9, 2022.2 Briefly, Valdivia broke the windshield of his wife’s van and rammed the van with his own vehicle, causing approximately $10,000 in damage. Later that day, Valdivia threatened to stab his 12-year-old son with a knife. He then told his wife “that when he returned, he would hurt them all,” apparently also referring to his 14-year-old son. Valdivia was charged with two counts of criminal threats and one count of vandalism, all felonies, and a misdemeanor count of child endangerment.3 In December 2022, under a plea agreement, he pleaded no contest to the vandalism count. The remaining charges were dismissed, with a Harvey waiver as to the child-endangerment count.4 Valdivia specifically agreed to be placed on probation for four years. At the sentencing hearing later that month, the prosecutor raised the issue that even though the parties had agreed to a probation term of four years, the probation report recommended a two-year term. Valdivia’s trial counsel responded, “While obviously the defense would prefer two years, we do acknowledge that four was what was agreed upon.” The trial court then suspended imposition of the sentence and placed Valdivia on formal