P. v. Vidales

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Filed 9/10/10 P. v. Vidales CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE MANUAL GARCIA VIDALES,
Defendant and Appellant.
C062494
(Super. Ct. No. 09848)
Although the jury convicted defendant, Jose Manual Garcia
Vidales, of all charged offenses and found all weapon
enhancements to be true, the jury could not reach a verdict on
gang enhancements attached to two of the offenses. Defendant
entered a negotiated admission to the gang enhancement attached
to his conviction for conspiracy to commit a felony in exchange
for dismissal of the second gang enhancement attached to his
conviction for second degree robbery. He received a stipulated
sentence of 11 years; that is, the upper term of five years for
conspiracy, a consecutive upper term of four years for the
attached gang enhancement, a consecutive one-year term for the

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attached weapon enhancement, and a consecutive one-third the
midterm or one year for the robbery conviction. The court
sentenced defendant accordingly and stayed sentence on the
remaining felony.
Defendant appeals. He did not obtain a certificate of
probable cause. (Pen. Code, § 1237.5.) Based on his erroneous
premise that his maximum exposure was 10 years, he contends:
the agreed-upon 11-year sentence was unauthorized because Penal
Code section 654 applied; counsel rendered ineffective
assistance in advising defendant to enter his admission in
exchange for the stipulated sentence; he did not knowingly enter
the agreement; and the agreement was based on a mutual mistake.
Because defendant is challenging the validity of his admission,
we conclude that defendant’s failure to obtain a certificate of
probable cause renders his claims noncognizable on appeal.
Moreover, he is estopped from complaining.
In People v. Fulton (2009) 179 Cal.App.4th 1230, this court
decided that a defendant could not attack the validity of his
admission of a prior prison term allegation without a
certificate of probable cause. (Id. at p. 1237.) “We conclude
that Penal Code section 1237.5 applies to an enhancement
allegation to which a defendant has entered a plea.” (Ibid.)
Fulton also concluded that the defendant was “trifling with the
courts by attempting to better the bargain on appeal.
[Citation.]” (Id. at p. 1238.)
Here, after a jury convicted defendant of the underlying
offenses and weapon enhancements, defendant entered a negotiated

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admission to one gang enhancement in exchange for dismissal of a
second gang enhancement and a stipulated sentence of 11 years in
state prison. Penal Code section 1237.5 applies to the gang
enhancement to which defendant entered his admission. He is
trifling with the courts in arguing that his exposure was only
10 years. Fulton controls here. Defendant’s contentions
challenge his admission and are noncognizable on appeal without
a certificate of probable cause. Further, by stipulating to the
sentence and failing to reserve the Penal Code section 654
issue, he is estopped from raising it. (People v. Hester (2000)
22 Cal.4th 290, 295.)
Pursuant to this court’s Miscellaneous Order No. 2010-002,
filed March 16, 2010, we deem defendant to have raised the issue
(without additional briefing) of whether amendments to Penal
Code section 4019, effective January 25, 2010, apply
retroactively to his pending appeal and entitle him to
additional presentence credits. Defendant is among the
prisoners excepted from the additional accrual of credit as he
was committed for a violent felony (robbery). (Pen. Code,
§§ 667.5, subd. (c)(9), 4019, subds. (b), (c); Stats. 2009-2010,
3d Ex. Sess., ch. 28, § 50.) However, our review of this issue
revealed an error in sentencing.
The trial court awarded 148 actual days and 74 conduct days
pursuant to Penal Code section 4019 for a total of 222 days of
presentence custody credit. Because defendant was convicted of
robbery, a violent felony, his conduct credit was limited to 15
percent of his actual days. (Pen. Code, §§ 667.5, subd. (c)(9),

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2933.1.) Thus, he is entitled to 22 conduct days for a total of
170 days of presentence custody credit. An unauthorized
sentence may be corrected at any time. We will modify the
judgment accordingly. (People v. Scott (1994) 9 Cal.4th 331,
354 [unauthorized sentence may be corrected at any time]; People
v. Guillen (1994) 25 Cal.App.4th 756, 764.)1
DISPOSITION
The judgment is modified to provide for 22 conduct days for
a total of 170 days of presentence custody credit. The trial
court is directed to prepare an amended abstract of judgment
accordingly and to forward a certified copy to the Department of
Corrections and Rehabilitation. As modified, the judgment is
affirmed.
CANTIL-SAKAUYE , J.
We concur:
NICHOLSON , Acting P. J.
RAYE , J.
1 In the interests of judicial economy, we have corrected the
error without requesting supplemental briefing. If either party
is aggrieved by this procedure, he may petition for rehearing
(Gov. Code, § 68081).

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