Nocelotl

A negotiated decision specifying that probation would be granted if a diagnostic report (Pen. Code, § 1203.03) 1 were “favorable” necessarily incorporates the provisions of section 1203.03 as part of the agreement. This Penal Code section requires the Director of the Department of Corrections and Rehabilitation (Department of Corrections) to make “his” recommendation on whether probation or prison is appropriate. If he, and he alone, recommends that probation be granted, then the report is “favorable.” If he, and he alone, recommends the contrary, it is not “favorable.”

Armando Xique Nocelotl appeals from the judgment entered following his no contest plea to kidnapping in violation of section 207, subdivision (a). Pursuant to the negotiated disposition, he did not admit the allegation that the victim was under 14 years of age. (§ 208, subd. (b).) Appellant was sentenced to prison for the middle term of five years.

Appellant contends that (1) the trial court abused its discretion in denying his motion to withdraw his plea and (2) the trial court breached the negotiated disposition by refusing to grant probation. We affirm.

Facts

The victim, Mylin F., was a…