P. v. Villalobos 8/28/09 CA5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F056729

Case Date: 12/03/2009

Preview:Filed 8/28/09

CERTIFED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F056729 Plaintiff and Respondent, (Super. Ct. No. VCF189886a) v. RAMIRO VILLALOBOS, Defendant and Appellant.

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent. -ooOooIn return for a reduced sentence, defendant Ramiro Villalobos pled no contest to charges of attempted premeditated murder and second degree robbery. At sentencing, the court imposed a $4,000 restitution fine and a $4,000 parole revocation fine. On appeal,

Villalobos argues the fines violated his plea agreement. Our Supreme Court first examined the issue of fines added at sentencing to a plea-bargained sentence in People v. Walker (1991) 54 Cal.3d 1013 (Walker). We publish to illustrate the application of Walker in light of our Supreme Courts most recent discussion of the issue in People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). So far as the record discloses, fines were not a subject of the parties bargaining in this case, and the plea agreement left the issue of fines to the courts discretion. We affirm the fines. Villalobos also appeals the concurrent gang enhancement sentence added to his sentence for second degree robbery. Because Villalobos never admitted the truth of the enhancement allegation for that count, we reverse this part of the sentence. PROCEDURAL AND FACTUAL HISTORIES Villalobos was charged in a three-count information alleging attempted premeditated murder, assault with a deadly weapon, and second degree robbery. All three counts included enhancements.1 The charges arose out of a brutal incident involving rival street gangs. The victim was a 16-year-old admitted gang member who was cornered and attacked by four or five opposing gang members. The victim was stabbed 17 times, one wound causing a collapsed lung. The attackers also stole the victims shoes. Villalobos admitted taking part and stabbing the victim five or six times but claimed self defense. Pursuant to a plea agreement, Villalobos pled no contest to attempted murder and second degree robbery. He also pled no contest to the street-gang enhancement on the attempted murder charge. All other allegations were dismissed. Villalobos would serve

enhancements alleged he had personally inflicted great bodily injury (Pen. Code,

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