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People v. Rodriguez3/19/2002
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Pursuant to a negotiated plea, Sergio Rodriguez was convicted of two counts of second degree murder and sentenced to 15 years to life. (Pen. Code, §§ 187, subd. (a), 189.) He appeals, contending that the trial court erred in denying his motion to withdraw the plea. (§ 1018.) We affirm.
On May 23, 1999, appellant drove a Nissan Sentra across a center divider in Santa Barbara County, striking a Honda driven by Samuel Honn. Honn and the passenger in appellant's car, German Delgadillo, were killed. Appellant had a blood-alcohol level of .21 percent.
Appellant was charged with two counts of murder (counts 1-2; §187, subd. (a)), injuring another while driving under the influence of alcohol (count 3; Veh. Code, § 23153, subd. (a)), and injuring another while driving with a blood alcohol level of .08 or more (count 4;Veh. Code, § 23153, subd. (b)). The information alleged that appellant inflicted great bodily injury (§ 12022.7, subd. (a)), that he caused more than one death (Veh. Code, § 23558), and that he had four prior convictions for driving under the influence of alcohol.
Appellant was held to answer after the preliminary hearing. Pursuant to a negotiated plea, he entered a plea of no contest to two counts of second degree murder in exchange for a sentence of 15 years to life. (§ 187, subd. (a).) The trial court dismissed the remaining counts and sentenced appellant to two concurrent terms of 15 years to life. Appellant was ordered to pay restitution and awarded 248 days actual credit and 124 days conduct credit.
Eight months after entry of judgment, the Department of Corrections requested that the trial court reconsider the sentence because appellant was not eligible for conduct credits. (§ 2933.2.)
The trial court, at a noticed hearing, corrected the judgment to delete the award of 124 days conduct credit.
Appellant moved to withdraw the plea, contending that conduct credits were a material part of the plea bargain. Appellant testified that his trial attorney, Ilan Funke-Bilu, told him that he would serve only 12 years or 85 percent of the 15 year sentence. Appellant said that he did not have time to review the plea terms and that "I had no idea what I was signing." Appellant also claimed that he would not have entered the plea had he known that he would not receive conduct credits.
Funke-Bilu, a certified criminal law specialist, conceded that he erred in calculating presentence credits. Counsel did not recall telling appellant that he would be eligible for parole in 12 years and said that it would be foolish to advise a client facing an indeterminate sentence that he would be paroled on a date certain. Funke-Bilu explained that "part of my job in representing someone who is looking at an indeterminate sentence, is making it very clear to him or her that it's indeterminate, and that what they are pleading guilty to, or what they will likely plead guilty to, and that it's ultimately up initially to the Judge, but then to the Department of Corrections, and there's no black or white. And that was made very clear to Mr. Rodriguez."
The trial court found that conduct credits were not part of the plea bargain and denied the motion to withdraw the plea.
Discussion
Appellant argues that the plea agreement was violated and that he made a good cause sh
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