Filed 11/24/14 P. v. Cardenas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 8.111.5. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JONATHAN DAVID CARDENAS,

 Defendant and Appellant.

2d Crim. No. B255109

(Super. Ct. No. 2012035557)

(Ventura County)

Jonathan David Cardenas appeals an order denying a motion to withdraw 

his plea as a Second Strike offender to attempted robbery (Pen. Code, §§ 664/211)1

with a prior serious felony conviction (§667. subd. (a)). The trial court sentenced 

appellant to seven years eight months prison but failed to strike an arming 

enhancement (§12202, subd. (b))(1)) and a prison prior enhancement (§ 667.5, subd. 

(b)) as agreed by the parties. We modify the sentence to reflect that the arming and 

prison prior enhancements were stricken and affirm the judgment as modified. The 

sentence remains the same: seven years, eight months state prison. 

Procedural History

Appellant was charged with attempted robbery and use of a knife (§ 

12202, subd. (b)(1)) after he vaulted over a store counter, held a knife to the clerk's 

throat, and demanded that the clerk open the store safe. Appellant fled before the safe 

 

1

All statutory references are to the Penal Code.
2

was opened. Oxnard Police Officer Jose Velazquez identified appellant from a 

surveillance video and the clerk identified appellant from a photo. 

The public defender declared a doubt concerning appellant's 

competency. (§ 1368.) Appellant was found competent to stand trial, made three 

Marsden requests (People v. Marsden (1970) 2 Cal.3d 118) which were denied, and 

was granted leave to represent himself (Faretta v. California (1975) 422 U.S. 806 [45 

L.Ed.2d 562]). Ten weeks later, appellant waived his Faretta rights and the trial court 

reappointed the public defender. 

Pursuant to an October 22, 2013, felony disposition statement, appellant 

pled no contest to attempted robbery and admitted the knife enhancement, a prior 

strike enhancement (§§ 667, subds. (c) & (e); 1170.12, subds. (a) & (c)), a prior 

serious felony conviction enhancement (§ 667, subd. (a)(1)), and a prison prior 

enhancement (§ 667.5, subd. (b)). When the change of plea of entered, counsel recited 

the plea terms on the record: 

"[Deputy Public Defender Randy Tucker]: I've indicated to Mr. 

Cardenas that at the time of sentencing for purposes of the seven year, eight month 

sentence, the one-year 667.5(b) prior and the one-year personal use of a deadly 

weapon enhancement will be stricken. [¶] Have I said anything incorrect, your 

Honor?

"THE COURT: No. That's what is contemplated.

"MR. TUCKER: Do you have any other questions of me?

"THE DEFENDANT: No.

"MS. MALAN [Deputy District Attorney]: And, your Honor, for the 

record, the People were asking for eight years, eight months. I do understand the 

Court is inclined to give the defendant seven years, eight months but I wanted to put 

that on the record.

"THE COURT: Noted." 
3

Before sentencing, the trial court granted appellant's Marsden motion to 

remove the public defender and appointed a conflict defense attorney. The trial court 

denied a motion to withdraw the plea and sentenced appellant to the low term of 16

months for attempted robbery, doubled the term based on the prior strike, and added 

five years on the serious felony conviction enhancement (§ 667, subd. (a)(1)). 

After the notice of appeal was filed, appellant moved to correct the 

sentence. The trial court struck a $1,721 probation investigation fee but failed to 

strike the armed and prison prior enhancements.

Sentencing Error

Appellant argues, and the Attorney General agrees, that the trial court 

erred in not striking the armed enhancement and prior prison term enhancement. 

Before sentencing, the prosecution agreed that the two enhancements would be 

stricken but argued for an eight year eight month sentence. The trial court stated it 

"was willing to sign off on seven years eight months. And after reading the probation 

report, I'm still willing to do that . . . ." Although it admitted the knife-use allegation, 

the court assured counsel that it would strike the enhancement. The trial court 

sentenced appellant to seven years eight months prison but failed to strike the armed 

and prison prior enhancements. 

Section 1192.5 provides that appellant cannot be sentenced to a 

punishment more serve than that specified in the plea. (People v. Walker (1991) 54 

Cal.3d 1013, 1024-1025.) Enhancements that are found true or admitted "must be 

either imposed or stricken 'in furtherance of justice' under Penal Code section 1385. 

[Citations.] The trial court has no authority to stay an enhancement, rather than strike 

it - not, at least, when the only basis for doing either is its own discretionary sense of 

justice. [Citations.]" (People v. Lopez (2004) 119 Cal.App.4th 355, 364; see People v. 

Langston (2004) 33 Cal.4th 1237, 1241 [trial court may not stay mandatory prison 

prior enhancement unless it is stricken].) 
4

We modify the judgment to reflect that the arming enhancement (§ 

12202, subd. (b)(1)) and prison prior enhancement (§ 667.5, subd. (b)) were stricken. 

The clerk of the superior court is directed to amend the abstract of judgment to reflect 

the modification and to forward a certified copy of the amended abstract of judgment 

to the Department of Corrections and Rehabilitation. As modified, the judgment is 

affirmed,

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
5

David M. Hirsch, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, under appointment by the Court of Appeal, 

Jonathan B. Steiner,Executive Director and Richard B. Lennon, Staff Attorney, for 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn 

McGahey, Supervising Deputy Attorney General, Jonathan M. Krauss, Deputy 

Attorney General, for Plaintiff and Respondent.