Filed 3/28/14 P. v. Ponciano CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              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.


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                       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.”


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       On June 7, the court stated it “had some significant skepticism yesterday when
[defendant’s counsel] told me that the deal was that he would receive concurrent time in
return for pleading guilty . . . .” The deputy district attorney indicated “That is not going
to happen,” and defense counsel stated “I now know that there’s a misunderstanding. I
had been told by the district attorney himself that he won’t honor or he will not follow
that previous discussion. So, yeah, that’s—I guess that’s not going to happen.” After an
off-the-record discussion, defendant’s attorney stated he “is prepared to enter a plea to
one of the cases,” the petty theft with priors. Defendant’s attorney stated “And
understanding that he’s looking at the—1/3 the midterm on an aggregate sentence with—
in conjunction with the [attempted burglary] case . . . [and] that CRF 11-9649 would be
dismissed.” The prosecutor stated the “disposition that we just recently fashioned is
predicated upon the People’s belief that he is getting the aggravated six years.” The court
indicated “My intended sentence would be the six years with the understanding that he
also [will] be admitting one of the two. If he did do that, I assume he would get more
time.” Defendant’s attorney asked “Well, Mr. Ponciano, are you ready to proceed on that
basis?” to which he responded “Yes.”
       Defendant’s attorney stated he had a guilty plea declaration form from one of the
prior plea agreement proposals which was based on “the concurrency.” At the court’s
request, he amended that form, crossing out the reference to “concurrent” terms and
adding “Dismiss Case CRF-11-9649. Sentence agreed 8 mos. *1/3 midterm . . .
[¶] *conditioned upon [defendant] receiving 6 years S.P. on CRF-11-9619.” The court
stated on the record “[T]he plea agreement is that he—in case 11-9653, he’s going to
enter a plea of eight months. That’s the maximum I can give him anyway on that case.
And as I understand it, if he gets six years on [the burglary] case, the district attorney will
dismiss the one remaining case, 11-9649. And if he gets less than the six years on [that]
case, then [the district attorney] can decide to go to trial again and try to get another eight
months out of it.” Defendant’s attorney responded: “Correct.”




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        Defendant stated he had read and initialed the plea form and understood what it
meant. He subsequently pleaded guilty to petty theft with a prior in case No. CRF-11-
9653.
        At the sentencing hearing on June 14, the court stated: “there was an agreement
fashioned where [defendant] would plead guilty to one of the two remaining felony cases,
that’s 11-9653, with an understanding that he would receive eight months consecutive
on—for case 11-9653 in addition to the sentence in case –actually, he was to get an
additional eight months in 11-9619, in addition to the time under 11-9653. [¶] My
recollection is that the district attorney’s condition that upon the defendant receiving six
years aggravated term in case 11-9653 that he would agree to dismiss case 11-9649.”
Defendant stated “I thought it was eight months that ran concurrent with the six years.
[¶] . . . [¶] . . . I think I’m going to pass on that.” The court noted defendant had already
entered a plea. After a discussion off the record with his attorneys, both indicated they
were prepared to go forward with sentencing.
        The court sentenced defendant to six years in state prison in case No. CRF-11-
9619. In case No. CRF-11-9653, the court stated it was sentencing defendant to “the
stipulated term of 1/3 the midterm being eight months in state prison. That will be served
consecutive to the time that I just ordered in case 11-9619.”
                                        DISCUSSION
        Defendant maintains the trial court violated the plea agreement and his due
process rights by failing to exercise its discretion with regard to whether the eight-month
sentence on the petty theft case would run concurrently or consecutively. 2 He urges the
plea agreement was “silent on the issue of how the eight months should run,” and
therefore “there is no evidence in the record from which the court can determine . . . what
‘agreement’—if any—was reached.”



        2
         There is an exception to the requirement a defendant obtain a certificate of
probable cause under section 1237.5 when the appeal raises claims involving alleged
violation of the plea agreement. (People v. Rabanales (2008) 168 Cal.App.4th 494, 500.)


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       “A negotiated plea agreement is a form of contract, and it is interpreted according
to general contract principles. [Citations.] ‘The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.)
If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the
other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must
be interpreted in the sense in which the promisor believed, at the time of making it, that
the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the
courts give effect is determined by objective manifestations of the parties’ intent,
including the words used in the agreement, as well as extrinsic evidence of such objective
matters as the surrounding circumstances under which the parties negotiated or entered
into the contract; the object, nature and subject matter of the contract; and the subsequent
conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th
759, 767.)
       Contrary to defendant’s contention, there was no “attempt to change-up the
interpretation and terms of the plea agreement on the sentencing date.” The terms of the
plea agreement are reflected on the record of the hearing at which defendant entered his
plea, and indicate the agreement was that the eight-month sentence in case No. CRF-11-
9653 was to be consecutive. Defendant’s attorney stated “And understanding that he’s
looking at the—1/3 the midterm on an aggregate sentence with—in conjunction with the
[attempted burglary] case . . . , [and] that CRF 11-9649 would be dismissed.” (Italics
added.) The prosecutor stated the “disposition that we just recently fashioned is
predicated upon the People’s belief that he is getting the aggravated six years.” The court
indicated “My intended sentence would be the six years with the understanding that he
also [will] be admitting one of the two. If he did do that, I assume he would get more
time.” Defendant’s attorney asked “Well, Mr. Ponciano, are you ready to proceed on that
basis?” to which he responded “Yes.”
       The written plea form indicated that understanding. Defendant’s attorney stated
he had a guilty plea declaration form from one of the prior plea agreement proposals
which was based on “the concurrency.” At the court’s request, he amended that form,


                                              5
crossing out the reference to “concurrent” terms and adding “Dismiss Case CRF-11-
9649. Sentence agreed 8 mos. *1/3 midterm . . . [¶]*conditioned upon [defendant]
receiving 6 years S.P. on CRF-11-9619.” The court stated on the record “the plea
agreement is that he—in case 11-9653, he’s going to enter a plea of eight months. That’s
the maximum I can give him anyway on that case. And as I understand it, if he gets six
years on [the burglary] case, the district attorney will dismiss the one remaining case, 11-
9649. And if he gets less than the six years on [that] case, then [the district attorney] can
decide to go to trial again and try to get another eight months out of it.” Defendant’s
attorney responded: “Correct.”
       The trial court properly sentenced defendant in accord with the plea agreement.
                                        DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Becton, J.




       
         Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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