People v. Rodriguez CA2/6 ( 2015 )

Filed 4/7/15 P. v. Rodriguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B253098
(Super. Ct. No. YA085714)
Plaintiff and Respondent, (Los Angeles County)
v.
FRANCISCO JAVIER RODRIGUEZ,
Defendant and Appellant.
An amended information charged appellant Francisco Javier Rodriguez
with criminal threats (Pen. Code, § 422)1 (counts 1 and 2), corporal injury to a spouse
(§ 273.5, subd. (a)) (count 3), shooting at an inhabited dwelling (§ 246) (count 4), assault
with a firearm (§ 245, subd. (a)(2)) (count 5), and possession of a firearm by a felon
(§ 29800, subd. (a)(1)) (count 6). As to counts 1, 2 and 5, it was alleged appellant
personally used a firearm (§§ 1192.7, subd. (c), 12022.5, subd. (a); 667.5, subd. (c).) It
also was alleged he had suffered a prior serious or violent felony (§§ 667, subds. (a) &
(b)-(i), 1170.12, subds. (a)-(d)), and five prior convictions for which he had served a
prison term (§ 667.5, subd. (b)).
1 All statutory references are to the Penal Code.
Pursuant to a negotiated plea agreement, appellant pled no contest to counts
3 and 4, admitted the prior strike and serious felony conviction allegations and agreed to
a protective order prohibiting contact with any of the victims for 10 years (§ 273.5, subd.
(j) [formerly subd. (i)].) In exchange, appellant received a stipulated aggregate 17-year
prison term and dismissal of the remaining counts and allegations. The trial court
imposed the agreed upon sentence, ordered appellant to pay the requisite fees and fines
and awarded 517 days of presentence custody credit.
Appellant filed a notice of appeal, and the trial court granted a certificate of
probable cause. Appellant contends the trial court erred by imposing the protective order
under section 273.5, subdivision (j), and requests that it be stricken. The record reflects it
was a negotiated, material term of the plea agreement. We affirm.
FACTS2
On September 28, 2012, appellant became angry with his then-pregnant
wife, Jessica Rodriguez (Jessica), and told her to have an abortion. He pulled a gun from
his waistband, pointed it at her stomach and said, "I should fucking kill you, bitch."
When Jessica took a step back, appellant got into his car and drove away.
Two days later, appellant and Jessica got into another argument. They were
at the front of her residence; Jessica's mother, two children and brother, Kodiak Hamff,
were inside. Appellant again insisted that Jessica have an abortion, hitting her several
times in the stomach, chest and head area. Jessica tried to defend herself with a pencil.
When that failed, she grabbed a bat. While they struggled over the bat, Hamff managed
to separate the two and pushed appellant out of the house.
Appellant reiterated that Jessica should get an abortion. Hamff said, "It's
her body. She can make her own decisions." After telling Hamff he was going to get
him, appellant retrieved a handgun from his car. He pointed it at Hamff, who was on the
porch, and fired a round that went into the house. One bullet went through a window and
lodged into a bedroom wall.
2 The underlying facts are from the transcript of the preliminary hearing.
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DISCUSSION
Section 273.5, subdivision (j), authorizes the issuance of a restraining order,
for up to 10 years, to protect victims of domestic violence.3 (People v. Delarosarauda
(2014) 227 Cal. App. 4th 205, 212-213.) Appellant contends the trial court abused its
discretion by imposing the 10-year protective order as to Jessica because it did not
adequately consider the seriousness of the facts, the probability of future violations and
the need for her safety. He further contends the court erred by imposing the order as to
the other victims because, unlike Jessica, they do not fall within the categories of victims
protected by the statute. (See § 273.5, subd. (b); Delarosarauda, at p. 213 [noting section
273.5 applies "to certain victims (spouses, cohabitants, fiancees, and parent of the
offender's child)"].) He asks us to strike the protective order and otherwise affirm.
The parties' plea agreement had two specific sentencing requirements: a
17-year prison term and a 10-year protective order as to all victims. The People contend
that because the protective order is a material term of the plea agreement, appellant is
estopped from challenging it. We agree.
When the prosecutor informed the trial court of the plea agreement, she
stated the sentence is "17 years' state prison and a 10-year protective order pursuant to
[section] 273.5[]" as to Jessica, her mother, her two children (appellant's step-children)
and Hamff. Jessica objected to the protective order, stating: "I can't speak for my brother
or my mother, obviously, but for me and my children, I don't want a no contact order or
any kind of restraining order." Appellant also expressed concern about having no contact
with Jessica or their newborn son while he is in prison.
3 Section 273.5, subdivision (j), provides: "Upon conviction under subdivision
(a), the sentencing court shall also consider issuing an order restraining the defendant
from any contact with the victim, which may be valid for up to 10 years, as determined
by the court. It is the intent of the Legislature that the length of any restraining order be
based upon the seriousness of the facts before the court, the probability of future
violations, and the safety of the victim and his or her immediate family. This protective
order may be issued by the court whether the defendant is sentenced to state prison or
county jail, or if imposition of sentence is suspended and the defendant is placed on
probation."
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The trial court asked the prosecutor whether a protective order is a
condition of the plea. The prosecutor responded: "Yes. Well, it was a condition of the
plea that there would be a protective order in place." The court asked whether defense
counsel had discussed the protective order with appellant. Counsel stated, "I did discuss
that with my client, your Honor, and he was on the phone with his wife. And my
understanding is that his wife informed him that she would be requesting that the
restraining order be [denied]." The court noted this conversation violated the existing
protective order.
After further discussion, the prosecutor clarified the no-contact order would
not apply to appellant's son, and that one of his family members could bring the child to
visit. The court told Jessica that, if there was a demonstrative change in circumstances,
she could seek a modification of the protective order in five years. But the prosecutor
declined to make any promises about a modification, stating appellant "should be very
clear it is a 10-year protective order and it could remain that way for the entire duration
of those . . . 10 years. And it's a complete stay away."
The trial court confirmed to appellant that he could not see or have contact
with his wife or the other victims for a minimum of five years and possibly ten.
Appellant said he wished to proceed with the plea. While taking the plea, the prosecutor
stated: "And in exchange for your plea, the remaining counts will be dismissed. You
will serve 17 years in state prison and there will be a ten-year protective order in this
case. Those are the terms of the agreement. Do you agree to that?" (Italics added.)
Appellant responded, "Yes." The prosecutor asked, "Do you now understand [the
protective order] after having the judge explain it to you?" Appellant answered, "Yes, I
understand it." When appellant later expressed concerns about the protective order, the
trial court restated its terms and asked again if he understood and agreed to abide by the
protective order. He said, "Yes."
Although unhappy with the protective order, particularly as it relates to his
wife, appellant understood it was a term of the plea agreement and accepted it. He
therefore is estopped from challenging it. (People v. Hester (2000) 22 Cal. 4th 290, 295;
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People v. Beebe (1989) 216 Cal. App. 3d 927, 935.) This is true even if, as he claims, the
order was not authorized by statute as to victims other than his wife. (Beebe, at p. 932.)
A defendant may not challenge on appeal an unauthorized sentence prescribed by a plea
bargain to which he or she has assented, unless acceptance of the plea bargain is beyond
the fundamental jurisdiction of the trial court. (People v. Buttram (2003) 30 Cal. 4th 773,
783; Hester, at p. 295.) "The rationale behind this policy is that defendants who have
received the benefit of their bargain should not be allowed to trifle with the courts by
attempting to better the bargain through the appellate process." (Hester, at p. 295; see
People v. Couch (1996) 48 Cal. App. 4th 1053, 1057 ["When a defendant maintains that
the trial court's sentence violates rules which would have required the imposition of a
more lenient sentence, yet the defendant avoided a potentially harsher sentence by
entering into the plea bargain, it may be implied that the defendant waived any rights
under such rules by choosing to accept the plea bargain"].)
In addition, appellant contends his plea was involuntary because, aside
from the purportedly unauthorized sentence, it was based on the trial court's illusory
promise to reconsider the protective order in five years. He also claims the trial court
failed to adequately consider Jessica's request that the protective order "not be part of the
plea bargain." Even if we were to agree with any of these contentions, we could not grant
appellant the relief he seeks. As the People point out, the only potential remedy would be
reversal of the judgment with instructions to the trial court to vacate the sentence and plea
agreement, to reinstate the dismissed counts and to permit withdrawal of the no contest
plea. (People v. Superior Court (Sanchez) (2014) 223 Cal. App. 4th 567, 577-578; People
v. Kim (2011) 193 Cal. App. 4th 1355, 1361-1362; see People v. Segura (2008) 44 Cal. 4th
921, 930 [acceptance of plea agreement "binds the court and the parties to the
agreement"].) Appellant asks us specifically not to "void the entire plea" or to give him
"an opportunity to reevaluate his plea." Instead, he wants us to void or modify the
protective order while allowing him to retain the 17-year sentence and other benefits of
the plea bargain. We lack that authority, and therefore do not reach the merits of his
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contentions. (Sanchez, at p. 577; see People v. Bean (1989) 213 Cal. App. 3d 639, 645-
646.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Mark S. Arnold, Judge
Superior Court County of Los Angeles
______________________________
Michelle T. Livecchi-Raufi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews Supervising Deputy Attorney General, J. Michael
Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
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