P. v. Alfaro
Filed 4/10/13 P. v. Alfaro CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ADAM HENRY ALFARO,
Defendant and
Appellant.
H037912
(Santa Clara
County
Super. Ct.
No. C1065458)
Pursuant to a plea bargain,
defendant Adam Henry Alfaro pleaded no contest to three counts of
subd. (a), 664, subd. (a))
name="_ftnref1" title="">[1]
and admitted the allegation that he personally and intentionally discharged a
firearm in the commission of the attempted murder charged in count one
(§ 12022.53, subd. (c)). On appeal,
defendant claims that the trial court failed to adhere to the sentence
agreement, an error which is conceded by the People. We modify the judgment and affirm the
judgment as modified.
I
Procedural History
A first amended information, filed August 8,
2011, charged
defendant Alfaro and a codefendant with committing three counts of attempted
murder (§§ 187, 189, 664, subd. (a)) on or about December
31, 2009 (counts one
through three). The information also
charged them with committing three counts of assault with a firearm against the
same victims (§ 245, subd. (a)(2)) on or about December 31, 2009 (counts four to six). A
seventh count charged defendant Alfaro with unlawfully discharging a firearm at
an occupied motor vehicle on or about December 31, 2009.
(§ 246.)
The information alleged that the
murders attempted by defendant Alfaro were willful, deliberate, and
premeditated (§§ 189, 664, subd. (a)).
As to each attempted murder count, the information alleged that defendant
Alfaro personally and intentionally discharged a firearm within the meaning of
section 12022.53, subdivision (c). As to
each assault count, the information alleged that defendant Alfaro personally
used a firearm within the meaning of sections 12022.5, subdivision (a), and
1203.06.
On August 8, 2011, defendant Alfaro
pleaded no contest to the three counts of attempted murder and also admitted,
as to count one, the alleged sentence enhancement pursuant to section 12022.53,
subdivision (c), in exchange for a guaranteed 25-year prison term and dismissal
of the remaining charges and allegations.
At the
the court sentenced defendant to a total prison term of 25 years. It reached that sentence by imposing a
five-year mitigated term on count one (§ 664, subd. (a)) and a consecutive
20-year sentence enhancement (§ 12022.53, subd. (c)). The trial court then imposed two concurrent
25 year sentences, consisting of five-year terms on counts two and three plus
20-year sentence enhancements (§ 12022.53, subd. (c)).
II
Sentencing Error
Defendant asserts that the court
erred by imposing the sentence enhancements attached to counts two and three
under section 12022.53, subdivision (c), since he did not admit the
enhancement allegations and they should have been dismissed pursuant to the
plea bargain. The People concede error
and we agree that the trial court erred.
" ' "When a
guilty [or nolo contendere] plea is entered in exchange for specified benefits
such as the dismissal of other counts or an agreed maximum punishment, both
parties, including the state, must abide by the terms of the
agreement.' '
[Citations.]" (
930-931, fn. omitted.) Although a trial
court retains sentencing discretion to reject a plea bargain, a court that has
accepted a plea bargain is bound by it.
(See ibid.) In addition, all enhancements must be
"alleged in the accusatory pleading and either admitted by the defendant
in open court or found to be true by the trier of fact." (§ 1170.1, subd. (e).) Moreover, unless a criminal defendant waives
the protection of the Sixth Amendment's right to jury trial, a sentence
enhancement allegation must be tried to a jury and proven beyond a reasonable
doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348]
["Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt"].) In this case, the trial court imposed
additional terms of imprisonment based on enhancement allegations neither found
true nor admitted and its sentence did not conform to the plea agreement. Accordingly, the judgment must be modified.
DISPOSITION
We modify the sentence by striking the two concurrent 20-year
enhancement terms added to the base terms imposed on counts two and three
pursuant to section 12022.53, subdivision (c).
As modified, the judgment is affirmed.
The trial court shall prepare a new abstract of judgment reflecting the
modification.
ELIA,
Acting P. J.
WE CONCUR:
BAMATTRE-MANOUKIAN,
J.
MÃRQUEZ, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise specified.