Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Super. Ct. No. SCD195123
McDONALD, J.
Jacqueline Lacy Robinson appeals a judgment following her guilty plea to one count of conspiracy to commit first degree robbery in concert (Pen. Code, §§ 182, subd. (a)(1), 211, 213, subd. (a)(1)(A)) and two counts of attempted first degree robbery in concert (§§ 211, 213, subd. (a)(1)(A), 664). On appeal, she contends the trial court erred by: (1) not referring her to the California Department of Corrections and Rehabilitation (DCR) for a section 1203.03 diagnostic evaluation before sentencing, as the trial court promised on acceptance of her guilty plea; and (2) imposing punishment for both the conspiracy and attempted robbery offenses in violation of section 654.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because Robinson pleaded guilty before trial, our factual description is based on evidence admitted at her preliminary hearing, which also provided the factual basis for her guilty plea.
At about 6:00 p.m. on November 18, 2005, Candice Carter and her husband John Antalek returned to their home in a gated community in San Diego. Carter entered the kitchen and began looking through their mail. A man wearing a ski mask and holding a knife and gun appeared, and told Carter not to yell or scream or he would kill her. She asked him who he was and why he was in her home. The man told her to "shut up" and do as he said or he would kill her. Carter then saw two other men and one woman (later determined to be Robinson) wearing ski masks and hooded sweatshirts. One of the other men was holding a gun and the other was holding a knife.
Hearing the voices, Antalek went to the kitchen and was confronted by one of the men, who demanded to know where their safe was located. Antalek replied that they did not have a safe. He then removed his car keys and cash from his pockets and asked the intruders to take the money and car and leave. The men threatened to kill Antalek if he did not take them to the safe. One of the men (later determined to be Joel Morey) pointed a gun at both Antalek and Carter and told them to get down on the floor. When they refused to do so, another man urged Morey to shoot them. Morey pointed the gun at Antalek's temple and held a knife to his stomach.
Carter ran from the house and screamed for help. The four intruders then fled from the house, got in a car, and drove away. Antalek called police and Carter called the security guards at the community's gate. The security guards locked down the community. The intruders were apprehended and later identified by Carter.
Police interviewed Morey, who told them Robinson had told the other intruders she had been in the house before and there was a lot of money in it. After Morey drove the car into the gated community, Robinson pointed out the house. However, after the group entered the house, they realized they had targeted the wrong house and fled.
An information charged Robinson with one count of conspiracy to commit first degree robbery in concert (§§ 182, subd. (a)(1), 211, 213, subd. (a)(1)(A)), one count of residential burglary (§§ 459, 460), and two counts of attempted first degree robbery in concert (§§ 211, 213, subd. (a)(1)(A), 664).
As to the residential burglary count, the information also alleged that a person other than the accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)).
On April 3, 2006, Robinson pleaded guilty to all counts, except for the residential burglary count, which was later dismissed on the People's motion in accordance with the plea agreement.
On May 19, the trial court sentenced Robinson to the lower three-year term on the conspiracy offense and a consecutive one-year term for one of the two attempted first degree robbery in concert offenses, for a total term of four years. The court stayed imposition of sentencing on the other attempted first degree robbery in concert offense pursuant to section 654.
Robinson timely filed a notice of appeal.
DISCUSSION
I
Referral for a Diagnostic Evaluation
Robinson contends, and the People agree, the trial court erred by not referring her to the DCR for a section 1203.03 diagnostic evaluation before sentencing, as the trial court promised on acceptance of her guilty plea.
Section 1203.03 provides: "(a) In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the [DCR], may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the [DCR] report to the court his diagnosis and recommendations concerning the defendant within the 90-day period. [¶] (b) The Director of the [DCR] shall, within 90 days, cause defendant to be observed and examined and shall forward to the court his diagnosis and recommendation concerning the disposition of defendant's case. Such diagnosis and recommendation shall be embodied in a written report . . . ."
A
On April 3, 2006, Robinson signed a plea form in which she pleaded guilty to all charges against her, except the residential burglary charge. Pursuant to her plea agreement, the People agreed to dismiss that remaining charge. The plea form stated there were "[n]o further agreements."
At the April 3 change of plea hearing, the trial court noted that at sentencing Robinson could receive up to a maximum of 10 years in prison. However, the trial court stated it would not impose an upper term for the principal offense. The court then stated:
"The situation is one where, because of your age, despite the nature of this crime, I am going to look carefully at all options, including the possibility of probation.
"I have also told your lawyers that if I am inclined to send you to prison on this case, what I will do first, before I do something like that, is send you off for a diagnostic study, that is, place you temporarily in the [DCR], and while you are at the [DCR], the psychologist will look at you, write a report, and the corrections counselor will look at you and basically give me the benefit of that person's experience in dealing with a great number of people who have gone to the state prison before. [¶] . . . [¶]
"Now, other than the mid lid from the Court, I don't believe that there has been any other promise, other than the use of the diagnostic study. I want to make sure that you are clear on the deal, and that you have talked to your lawyer about it, and that you are prepared to do this [i.e., plead guilty]." (Italics added.)
The trial court then accepted Robinson's guilty pleas to the three offenses. At Robinson's May 19 sentencing, the trial court stated it had carefully considered whether to grant probation to Robinson, but denied probation as inappropriate in the circumstances of her offenses. The trial court then imposed a total term of four years. During the hearing, none of the persons involved (i.e., Robinson, her counsel, the prosecutor, and the trial court) mentioned the trial court's April 3 promise to Robinson that it would refer her to the DCR for a diagnostic evaluation before imposing a prison term.
B
Based on controlling case law, we conclude the trial court erred by not referring Robinson to the DCR for a section 1203.03 diagnostic evaluation before sentencing her, as the trial court promised on acceptance of her guilty plea at the April 3, 2006 hearing. (People v. Mancheno (1982) 32 Cal.3d 855, 859-861 [defendant was denied constitutional right to due process when trial court failed to request a diagnostic study before sentencing in breach of plea agreement and trial court's commitment on acceptance of defendant's guilty plea]; People v. Bounds (1987) 194 Cal.App.3d 1574, 1577-1578 [trial court erred when it sentenced defendant without first obtaining final section 1203.03 diagnostic study required by the plea agreement previously accepted by trial court]; see also Santobello v. New York (1971) 404 U.S. 257, 266-267 [constitutional right to due process applies to implementation of plea bargain and other inducements for defendant's guilty plea].) Accordingly, Robinson argues, and the People concede, we must vacate Robinson's sentence and remand the matter with directions that the trial court refer her to the DCR for a section 1203.03 diagnostic evaluation and thereafter consider that evaluation and other relevant factors in resentencing her.
II
Section 654Robinson contends the trial court erred by imposing punishment for both the conspiracy and attempted robbery offenses in violation of section 654. However, because we vacate her sentence and remand for resentencing on the ground discussed above, it is premature to address that contention. Accordingly, we decline to provide an advisory opinion on an issue that may not become ripe for our consideration. Nevertheless, if the trial court on resentencing decides not to grant probation to Robinson, it should consider whether section 654 precludes punishment for both the conspiracy offense and one (or both) of the attempted robbery offenses. (See In re Cruz (1966) 64 Cal.2d 178, 180-181 ["A fortiori it would violate [section 654] to sentence a defendant for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes."]; People v. Flores (2005) 129 Cal.App.4th 174, 184-185; People v. Ramirez (1987) 189 Cal.App.3d 603, 615-617; People v. Keller (1963) 212 Cal.App.2d 210, 220-221.)
DISPOSITION
The sentence is vacated and the matter is remanded with directions that the trial court refer Robinson to the DCR for a section 1203.03 diagnostic evaluation, which evaluation the court shall consider on resentencing her. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.