P. v. Rubalcaba

P. v. Rubalcaba

Filed 1/12/07  P. v. Rubalcaba CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

            On March 7, 2006, defendant Andres Rubalcaba pled no contest to one count each of unlawful sexual intercourse with a minor at least three years younger than he, misdemeanor inflicting corporal injury on a cohabitant, and misdemeanor violating a protective order; he also pled no contest to three counts of furnishing a minor with a controlled substance, and admitted the allegation on each count that the minor was at least four years younger than he.  In exchange, instead of 19 years and two months in state prison he was to receive a maximum prison term of four years, eight months.  While taking the plea, the trial court informed defendant that he would be ordered to pay actual restitution to the victim if there was any, and a restitution fund fine of a minimum of $220 and a maximum of $10,000. 

            At sentencing, the court imposed the agreed-upon sentence and among other fines and fees, also ordered defendant to pay a restitution fund fine of $3,200 and suspended an additional $3,200 restitution fund fine.  (Pen. Code, §§ 1202.4, subd. (b), 1202.45.)[1]  Defendant contends on appeal that the restitution fines exceeded the punishment contemplated by the plea bargain and must be reduced to the statutory minimum.  He also claims the court failed to advise defendant that he would have an opportunity to withdraw his plea if the court failed to follow the terms of the plea bargain.  (§ 1192.5.)

DISCUSSION

            Defendant states that â€