Filed 5/19/16

                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                              (Siskiyou)
                                                 ----




THE PEOPLE,                                                      C078233

                  Plaintiff and Respondent,                  (Super. Ct. No.
                                                           MCYKCRBF140270)
        v.

ALLEN RAY SILVA,

                  Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of Siskiyou County, Laura J.
Masunaga, Judge. Reversed with directions.

      Barbara Coffman, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri,
Supervising Deputy Attorney General, George M. Hendrickson, Deputy Attorney
General, for Plaintiff and Respondent.



                                                  1
        Defendant Allen Ray Silva pleaded no contest to a number of felony offenses and
one misdemeanor petty theft charged in connection with two separate events. The parties
agreed to a maximum sentence of six years eight months. The trial court sentenced
defendant to the negotiated term of six years eight months on the felonies, but added a
consecutive sentence of 30 days on the misdemeanor petty theft, which the trial court
subtracted from defendant’s presentence custody credits. Defendant contends the trial
court did not properly advise him he could withdraw his plea if the court was inclined to
impose a higher sentence than the agreed maximum and contends the error requires
specific performance of the plea.
        We conclude that neither the trial court nor the Judicial Council plea form used in
this case properly advised defendant of his right to withdraw his plea as required by Penal
Code section 1192.5.1 However, specific performance is not the appropriate remedy in
this case. We reverse and remand the matter for further proceedings described more fully
post.
                  FACTUAL AND PROCEDURAL BACKGROUND2
        In February 2014, a utility company sent an employee to defendant’s home to shut
off the power. When the employee explained to defendant why he was at the property,
defendant responded by ordering the employee off the property. Defendant grabbed a
large stick, held it over his head, and advanced toward the employee. He then put the
stick down, spit at the employee, and continued to yell at him, “ ‘get the fuck out of
here,’ ” “ ‘you’re not gonna cut my power,’ ” and “ ‘get the fuck off my property.’ ” The
employee thought he was going to be struck so he left and called law enforcement. Law
enforcement arrested defendant.


1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2   The facts underlying the charged offenses are from the probation report.

                                              2
       Defendant failed to appear for his arraignment in July 2014, and a bench warrant
was issued.
       In July 2014, Walmart personnel stopped defendant and Stephanie Mendoza,
suspecting them of theft. They asked defendant and Mendoza to step into the store
security office and Mendoza complied, but defendant became hostile. Thereafter, law
enforcement was contacted. During the incident, defendant pulled an eight-inch knife
from his pocket. He brandished the knife at the Walmart personnel and said that he
“ ‘was not going any fucking where.’ ” Defendant then invited the Walmart personnel to
step outside and stated, “ ‘I will take both of you out.’ ” The Walmart personnel felt
threatened and were afraid of defendant, so they told him to leave, which he did. An
arrest warrant was issued and defendant was arrested on July 27, 2014.
       A consolidated information charged defendant with making criminal threats
against the Walmart personnel (§ 422, subd. (a) (counts 1 & 2)), commercial burglary
(§ 459 (count 3)), receiving stolen property (§ 496, subd. (a) (count 4)), petty theft with a
prior as a felony (§ 666, subd. (b) (count 5)), carrying a dirk or dagger (§ 21310 (count
6)), failure to appear while on bail (§ 1320.5 (count 7)), assault with a deadly weapon
against the utility company employee (§ 245, subd. (a)(1) (count 8)), and exhibiting a
deadly weapon (§ 417, subd. (a)(1) (count 9)). As to the assault, the information further
alleged it was a serious felony (§ 1192.7, subd. (c)(23)). The information also alleged as
to counts 1 through 8 that defendant had a strike conviction (§§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i)), as to counts 1 through 5 and 8, that defendant had a prior serious
felony conviction (§ 667, subd. (a)(1)), and as to counts 1 through 7, that defendant
committed the offenses while released on bail (§ 12022.1).




                                              3
        As part of a plea agreement, defendant pleaded no contest to: count 1 -- criminal
threats3; count 8 -- assault with a deadly weapon; count 7 -- felony failure to appear; and
count 5 -- petty theft with a prior, which was reduced to a misdemeanor as part of the
plea agreement. He also admitted the strike allegation as to counts 1, 7, and 8, and also
the allegation that he committed the assault on the utility company employee while
released on bail (§ 12022.1). The trial court dismissed the remaining counts and
allegations with a Harvey waiver for sentencing.4 The parties agreed to a “lid on
immediate state prison of six years and eight months at 80 percent.”5
        Just before the trial court took defendant’s plea, the prosecution offered the court
an example of how the negotiated lid could be calculated, which did not include any
sentence on the misdemeanor, but did include a dismissal of the strike allegation as to



3 As part of the plea agreement, count 1 was amended to name both victims from the
incident at Walmart within that single count.
4   People v. Harvey (1979) 25 Cal.3d 754.
5  In addition to the oral representation of counsel made to the court just prior to
defendant’s plea concerning the terms of the agreement, the terms of the negotiated
resolution are set forth on the written plea form signed by defendant, defense counsel,
and the prosecutor. The chart in paragraph 1 of the plea form shows the counts to which
defendant was going to plead, the “Total Maximum Time” for each count, including “1
y” for the misdemeanor petty theft and the “Aggregate Maximum Time of Imprisonment”
for all of the counts of “12 y 8 mo + 1 yr C/J.” Next to paragraph 2, which is entitled
“Plea Agreement,” the words “2 options available” are handwritten with arrows pointing
to paragraphs 2.a. and 2.b. The state prison box is checked in paragraph 2.a. and
paragraph 2.a.(1) reads: “6 years and 8 months lid if not granted probation.” Paragraph
2.b. reads: “Probation for 3-5 years under conditions to be set by the court, including:
[¶] up to 365 days in the county jail.” Further, defendant acknowledged on the form that
if he was granted probation and he violated any condition of probation, he could be
sentenced to state prison for up to the aggregate maximum time set forth in the chart in
paragraph 1. Under paragraph 2.i., titled “Other Terms,” the form reads: “Lid of 6 y 8
mos if court, as initial sentence, imposes state prison. If probation is granted the lid will
not apply. Parties agree Romero motion for prior strike must be granted as to some
counts to achieve a 6 y 8 mo term.”

                                              4
count 7, failure to appear, and striking the punishment on the section 12022.1
enhancement. The prosecutor told the court it had discretion to achieve the sentencing lid
by calculating the sentence in other ways and added, “It’s not going to be a challenging
lid in the sense of impossible.”
       In taking defendant’s plea, the trial court did not orally advise defendant under
section 1192.5 of his right to withdraw his plea if the court withdrew its approval of the
plea.6 Defendant executed a plea form published by the Judicial Council.7 Paragraph
6.e. of the form is titled “Discovery of New Facts” and reads: “I understand that the plea
agreement in item 2 (on pages 1 and 2) is based on the facts before the court, and if the
court discovers new facts, such as an additional prior felony conviction not listed on this
form, the court may refuse to accept the plea agreement. If the court discovers new facts
and refuses to accept this plea agreement, I understand that I will be allowed to withdraw
my plea.” (Italics added.) Defendant initialed the box next to paragraph 6.e.,
acknowledging that he understood.




6 Section 1192.5 provides in pertinent part: “Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to the plea other
than as specified in the plea. [¶] If the court approves of the plea, it shall inform the
defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at
the time set for the hearing on the application for probation or pronouncement of
judgment, withdraw its approval in the light of further consideration of the matter, and (3)
in that case, the defendant shall be permitted to withdraw his or her plea if he or she
desires to do so. The court shall also cause an inquiry to be made of the defendant to
satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis
for the plea. [¶] If the plea is not accepted by the prosecuting attorney and approved by
the court, the plea shall be deemed withdrawn and the defendant may then enter the plea
or pleas as would otherwise have been available.”
7The plea form is CR-101, revised January 1, 2013, and is approved by the Judicial
Council for optional use.

                                              5
        Subsequently, defendant filed a Romero8 motion, requesting that the court dismiss
defendant’s strike allegation. The prosecution filed an opposition to defendant’s motion
wherein it suggested a sentencing calculation on the felonies and enhancements to
achieve the six-year eight-month lid without dismissing the strike, but again did not
mention the misdemeanor. The Romero motion was denied.
        Prior to sentencing, defendant filed a motion to withdraw his plea for good cause,
on the ground that shortly before entering the plea, he had begun taking two drugs for
mental health issues and those drugs affected his thinking, such that he did not
understand the potential state prison consequences of the plea. The trial court denied the
motion.
        While the motion to withdraw the plea was pending, the prosecution filed a brief
regarding sentencing on count 5, misdemeanor petty theft with a prior. For the first time,
the prosecution contended the trial court was required to sentence defendant on that count
consecutively under section 667, subdivision (c)(6) and (7),9 and People v. Newsome
(1997) 57 Cal.App.4th 902. In Newsome, this court said consecutive sentences are
required for any felony or misdemeanor conviction not committed on the same occasion
and not arising from the same set of operative facts as the current felony convictions



8   People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
9 Section 667 provides in pertinent part: “(c) Notwithstanding any other law, if a
defendant has been convicted of a felony and it has been pled and proved that the
defendant has one or more prior serious and/or violent felony convictions as defined in
subdivision (d), the court shall adhere to each of the following: [¶] . . . [¶] (6) If there is
a current conviction for more than one felony count not committed on the same occasion,
and not arising from the same set of operative facts, the court shall sentence the
defendant consecutively on each count pursuant to subdivision (e). [¶] (7) If there is a
current conviction for more than one serious or violent felony as described in paragraph
(6), the court shall impose the sentence for each conviction consecutive to the sentence
for any other conviction for which the defendant may be consecutively sentenced in the
manner prescribed by law.” (Italics added.)

                                               6
when the current felonies include more than one serious/violent felony offense.
(Newsome, at pp. 910-911.) Since defendant admitted two serious felonies here, the
prosecution belatedly contended that the trial court was required to sentence him
consecutively on the misdemeanor unless it found the misdemeanor was committed on
the same occasion or arising from the same facts as count 1, criminal threats involving
the Walmart personnel.
        At the sentencing hearing, the prosecution argued that because there was a lid on
the felony, and no discussion about how much credit defendant would get against that
sentence, and the misdemeanor had to be sentenced consecutively, the trial court had to
allocate some of defendant’s presentence credits to the misdemeanor. Defendant
responded that count 1, criminal threats, and count 5, misdemeanor petty theft with a
prior at Walmart, were committed on the same occasion and arose from the same
operative facts and therefore section 667, subdivision (c)(6) and (7), did not require
consecutive sentences. Defense counsel then stated, “If the Court is inclined to somehow
find that this was on a different occasion, I think we run into the problem that -- the
agreement was that [defendant] received an aggregate sentence of 6 years, 8 months as a
lid. And so to oppose [sic] anything that significantly goes beyond that would violate
that term and we would be back into the situation with a motion to withdraw plea. So
with that I’ll submit.” The trial court indicated that whether the misdemeanor petty theft
from Walmart was part of the same operative facts from the criminal threats on the store
personnel was “a close issue” and that, “It’s sort of in between there, between ones that
very clearly are not and ones that are.” Ultimately, the trial court found that count 1 and
count 5 were not committed on the same occasion and did not arise from the same
operative facts.10 Based on that finding, the court said it would impose a consecutive




10   Defendant does not challenge the trial court’s finding in this appeal.

                                               7
sentence of 30 days on the misdemeanor. After the prosecutor confirmed the sentence
was within the trial court’s discretion in light of the requirement for consecutive
sentencing, the trial court asked defense counsel if he had “[a]nything else.” Counsel
said he did not.
       Following the recommendation of the prosecution contained in the prosecutor’s
Romero opposition, the trial court sentenced defendant to a total of six years eight months
on the felonies, calculated as follows: on count 8, assault with a deadly weapon, four
years (the low term of two years, doubled); on count 1, criminal threats, 16 months (one-
third the midterm, eight months doubled); on count 7, failure to appear, 16 months, (one-
third the midterm, eight months doubled).11 Accepting the prosecutor’s argument that
the trial court had to impose a consecutive sentence on the misdemeanor and deduct that
sentence from defendant’s presentence credits, the trial court sentenced defendant to a
consecutive 30 days on count 5 and awarded defendant 332 days of presentence custody
credits, 30 of which were credited towards the misdemeanor petty theft jail sentence.
                                      DISCUSSION
       Defendant contends the trial court erred by failing to give the admonishment
required by section 1192.5 and failing to provide him the opportunity to withdraw his
plea when it imposed a sentence 30 days more than the agreed upon sentencing lid.12 He
further contends the remedy for this error is specific performance of the plea.
Alternatively, he contends if we do not remand for specific performance of the plea, he



11 The trial court struck the punishment on the section 12022.1 allegation as
recommended by the prosecution.
12 Defendant does not challenge the fact that the trial court denied dismissal of the strike
conviction, even though the dismissal was listed as a term of the plea agreement on the
plea form signed by defendant, defense counsel and the prosecutor. (See fn. 5, ante.)
Consequently, we do not address the propriety of making the dismissal of a strike part of
a plea bargain or the failure to adhere to that term in the plea agreement.

                                              8
must be allowed to withdraw his plea. The People contend the Judicial Council plea form
advised defendant of his rights under section 1192.5 and defense counsel did as well.
Consequently, defendant’s failure to object to the sentence and move to withdraw his plea
forfeited his claim on appeal. Alternatively, the People argue the 30-day sentence on
count 5 did not violate the plea agreement because the agreement purportedly did not
include the misdemeanor sentence. We conclude that defendant was not properly advised
of his section 1192.5 rights and the sentence imposed by the trial court violated the plea
agreement.
       “When a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment, both parties, including the
state, must abide by the terms of the agreement. The punishment may not significantly
exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013,
1024 (Walker), overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177,
183 (Villalobos).) This is a rule of constitutional dimension, implicating due process
concerns. (Villalobos, at p. 182; Walker, at p. 1024.) Due process requires that both
defendant and the prosecution, abide by the terms of the plea agreement and that the
punishment imposed not significantly exceed that which the parties agreed upon.13
(Villalobos, at p. 182.)



13  The People appropriately do not contend that the additional 30-day sentence
effectuated by reducing defendant’s presentence credit is not a significant variance from
the agreed upon sentence. To warrant relief, the deviation from the negotiated plea must
be “ ‘significant’ in the context of the plea bargain as a whole.” (Walker, supra, 54 Cal.3d
at p. 1024.) And the punishment must not be “more severe” than whatever the defendant
agreed to. (§ 1192.5; Walker, at p. 1024; People v. Kim (2011) 193 Cal.App.4th 1355,
1359 (Kim); People v. Brown (2007) 147 Cal.App.4th 1213, 1221.) In Walker, the court
gave an example of an insignificant variance. It suggested that adding a standard
condition of probation not part of the express negotiations would not be a significant
variance. (Walker, at p. 1024.) In contrast, a loss of liberty of an additional 30 days by
deducting time already served can hardly be considered insignificant to the person who

                                             9
       However, there is an out for the trial court. The court may withdraw its initial
approval of the plea at the time of sentencing and decline to impose the agreed upon
sentence, “so long as the parties can be restored to their original positions.” (Kim, supra,
193 Cal.App.4th at p. 1360; § 1192.5.) If the court withdraws its initial approval, it must
inform the defendant that he or she has the right to withdraw the plea and allow the
defendant to do so; it cannot merely alter the terms of the agreement by imposing
punishment significantly greater than that originally bargained for. (§ 1192.5; Walker,
supra, 54 Cal.3d at p. 1026.) Put another way, the trial court may not “unilaterally
modify[] the terms of the bargain without affording . . . an opportunity to the aggrieved
party to rescind the plea agreement and resume proceedings where they left off.” (Kim,
at p. 1361.) This rule is not new. It has long been the rule that if the trial court
disapproves of the negotiated disposition and seeks to modify it, the court must expressly
tell the defendant he or she can withdraw the plea if the defendant is unwilling to accept
the modified terms. (People v. Johnson (1974) 10 Cal.3d 868, 872 & fn. 3 (Johnson).)
“The required explanation and defendant’s right to have his plea withdrawn apply both at
the time of entering the plea and at sentencing.” (People v. Jackson (1980)
103 Cal.App.3d 635, 638 (Jackson).)
       These holdings are based on section 1192.5 (see fn. 6, ante), which provides that
when a plea bargain entered into by the parties is approved by the court, the defendant
“cannot be sentenced on the plea to a punishment more severe than that specified in the
plea and the court may not proceed as to the plea other than as specified in the plea.”
(Italics added.) Section 1192.5 further provides that the court “shall inform the defendant
prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time
set for the hearing on the application for probation or pronouncement of judgment,



must serve that time. The variance here does not fall into the same category as a standard
condition of probation.

                                              10
withdraw its approval in the light of further consideration of the matter, and (3) in that
case, the defendant shall be permitted to withdraw his or her plea if he or she desires to
do so.” (§ 1192.5, italics added.) Implicit in this statutory language “is the premise that
the court, upon sentencing, has broad discretion to withdraw its prior approval of a
negotiated plea.” (Johnson, supra, 10 Cal.3d at p. 873.) “ ‘Such withdrawal is permitted,
for example, in those instances where the court becomes more fully informed about the
case [citation], or where, after further consideration, the court concludes that the bargain
is not in the best interests of society.’ ” (People v. Simmons (2015) 233 Cal.App.4th
1458, 1467, italics added [trial court’s post-plea decision to reject package plea bargain
involving multiple defendants and proceed to trial affirmed].)
       Here, at the time of the plea, the trial court did not orally advise defendant that its
approval of the plea agreement was not binding and if, after further consideration, it
could not accept the plea, defendant had the right to withdraw it. The People contend that
paragraph 6.e. of the Judicial Council plea form executed by the parties provided the
requisite advisements. We disagree. In the paragraph titled, “Discovery of New Facts,”
the plea form advised defendant that if the court discovered new facts, it could refuse to
accept the plea, and in that single situation defendant could withdraw his plea. The plea
form gives the discovery of a previously unknown prior conviction as an example of a
new fact. The discovery of new facts is one circumstance under which a trial court could
reject a negotiated agreement, but section 1192.5 is not limited to that one circumstance.
Thus, the plea form does not adequately convey the admonishments in section 1192.5.
The form does not inform defendants that the court’s approval of the negotiated
disposition is not binding and that the court could withdraw its approval simply upon
“further consideration” as stated in section 1192.5. (See fn. 6, ante.) Here the court did
not refuse to accept the plea based on the discovery of new facts. Rather, the prosecution
miscalculated how the sentence could be calculated to arrive at the sentencing lid it
negotiated with defendant.

                                              11
       The People contend that it is inconceivable defendant would have believed he
could not withdraw his plea based on a distinction between new facts and a new point of
law and in any event, because of defense counsel’s comments, the record shows
defendant knew he could withdraw his plea. Thus, according to the People, defendant
forfeited any claim under section 1192.5 by failing to move to withdraw his plea after the
trial court indicated it would impose the additional 30 days. In support of this contention,
the People rely on Walker, supra, 54 Cal.3d 1013 and Villalobos, supra, 54 Cal.4th 177.
       In Walker, our high court held, “Whether or not a defendant waives an objection to
punishment exceeding the terms of the bargain by failure to raise the point in some
fashion at sentencing depends upon whether the trial court followed the requirements of
section 1192.5.” (Walker, supra, 54 Cal.3d at p. 1024, italics added; accord, Villalobos,
supra, 54 Cal.4th at p. 182; People v. Cruz (2013) 219 Cal.App.4th 61, 65, fn. 3.) The
Walker court went on to say, “Absent compliance with the section 1192.5 procedure, the
defendant’s constitutional right to the benefit of his bargain is not waived by a mere
failure to object at sentencing. ‘Of course, there can be no waiver of a constitutional right
absent “an intentional relinquishment or abandonment of a known right or privilege.”
[Citation.] No less should a court presume from mere silence that defendant is waiving
implementation of the consideration that induced him to waive his constitutional
rights.’ ” (Id. at p. 1025.) Thus, as this court has previously noted, when the trial court
fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing
does not waive his claim on appeal. (Cruz, at p. 65, fn. 3, citing Walker, at pp. 1024-
1026, 1030.)
       Apparently recognizing that defense counsel did “raise the point in some fashion,”
(Walker, supra, 54 Cal.3d at p. 1024, italics added), the People advance the novel
argument that Walker “did not hold that an objection to punishment without a request to
withdraw the plea was sufficient to preserve the issue.” From this, the language of
section 1192.5 and the notion defendant knew of his right to withdraw the plea, the

                                             12
People maintain that a request to withdraw the plea was required to preserve the claim.
The People’s argument is based on two false premises about Walker. First, the Walker
court said whether a defendant has waived the plea bargain violation depends on
“whether the trial court followed the requirements of section 1192.5” (Walker, at
p. 1024), not whether defense counsel’s statements somehow show defendant personally
knew he could withdraw his plea. Second, contrary to the People’s argument, the Walker
court expressly stated a motion to withdraw the plea is not required where there has been
no compliance with section 1192.5. Specifically, the court said, “We have held that
absent a section 1192.5 admonition, a defendant’s ‘failure affirmatively to request a
change of plea should not be deemed a waiver of his right to do so. Since he was never
advised of his rights under section 1192.5, he should not be held to have waived them.’ ”
(Walker, at p. 1025, citing Johnson, supra, 10 Cal.3d at p. 872.) The People appear to
advance the idea that when defense counsel, not defendant, demonstrated an
understanding that the plea may be withdrawn, both an objection and a motion to
withdraw is required. But such a rule would be inconsistent with the Walker court’s
observation that the waiver of the constitutional right to the benefit of the original bargain
must reflect “ ‘ “an intentional relinquishment or abandonment” ’ ” of that right by the
defendant. (Walker, at p. 1024.) In other words, when there has been no prior 1192.5
admonition, a defendant must personally waive his or her section 1192.5 right to
withdraw the plea.
       The People also contend that because defense counsel acknowledged on the plea
form that he had “ ‘explained each of the items in the form, including the defendant’s
constitutional and statutory rights, to the defendant,’ ” that acknowledgment necessarily
shows that defense counsel informed defendant of the right to withdraw the plea under
section 1192.5 if the bargain is rejected by the court. But section 1192.5 requires that the
court, not counsel, give the admonishment and that did not happen here. We will not
assume defendant knew he had a right to withdraw his plea in the absence of a section

                                             13
1192.5 admonition by the trial court.14 (Walker, supra, 54 Cal.3d at p. 1026.) The court
must expressly inform defendant of his right to withdraw his or her plea. (Ibid.; Johnson,
supra,10 Cal.3d at p. 872; Kim, supra, 193 Cal.App.4th at p. 1361; Jackson, supra, 103
Cal.App.3d at p. 638.)
       The People also contend that any motion to withdraw the plea that could be read
into defense counsel’s comments to the trial court was impliedly rejected by the court on
the ground that the sentence did not violate the plea. According to the People, the reason
the plea was not violated is because the sentencing lid to which the parties referred in
their bargain related only to the felonies and furthermore, the sentence on the
misdemeanor had to be consecutive. The People assert that defendant has not presented
“competent evidence that he believed the ‘lid’ would apply to county jail as well as state
prison.” But the plea form signed by defendant, defense counsel and the prosecutor
clearly indicated that the sentence on the misdemeanor was within the scope of the
sentencing lid promise.15
       “From a defendant’s point of view, the purpose of a sentence lid is to protect the
defendant from a greater sentence. Thus, a sentence lid provision in a plea agreement




14 The section 1192.5 admonitions can be oral or they can be provided in a written plea
form provided by the court in which defendant acknowledges his receipt and
understanding of the admonitions. As we have pointed out, the 2013 form approved by
the Judicial Council for optional use does not contain the admonitions set forth in section
1192.5. It is recommended that the Judicial Council consider rewording the
admonishment in paragraph 6.e. of the plea form to conform to section 1192.5.
15  The executed plea form signed by defendant, defense counsel and the prosecution sets
forth two sentencing options: (1) a sentencing lid of 6 years 8 months or (2) three to five
years’ probation with conditions of probation including 365 days in county jail. Even
though the sentence for the misdemeanor was listed in the sentences showing the
maximum sentence to which defendant was exposed, nothing on the form suggests that
the sentence for the misdemeanor was not included in either of the two options set forth
in the agreement or that it would be treated separately. (See fn. 5, ante.)

                                             14
necessarily implies the defendant’s understanding and belief that in its absence the trial
court might lawfully have imposed a greater sentence. . . . [¶] From a prosecutor’s point
of view, a sentence lid necessarily implies an understanding and belief that the sentence
lid is itself a sentence that the trial court may lawfully impose. If the prosecutor
understood or believed that the trial court lacked authority to impose the lid sentence,
there would be no utility or benefit to specifying that particular length of time as the
maximum sentence. [¶] Thus, the specification of a maximum sentence or lid in a plea
agreement normally implies a mutual understanding of the defendant and the prosecutor
that the specified maximum term is one that the trial court may lawfully impose and also
a mutual understanding that, absent the agreement for the lid, the trial court might
lawfully impose an even longer term.” (People v. Shelton (2006) 37 Cal.4th 759, 768.)
       Here, the parties’ agreed that the maximum period of time to which defendant
could be sentenced was six years eight months and according to the plea form, the
misdemeanor sentence was included in this sentencing lid. The plea discussions make
clear the parties did not account for the fact that the trial court was required to impose a
consecutive sentence on the misdemeanor. The trial court imposed the six-year eight-
month sentence on the felony counts and then imposed an additional 30-day sentence on
the misdemeanor, which it deducted from defendant’s presentence credit. Defendant’s
actual punishment exceeds the plea agreement lid. The trial court was not authorized to
reform the plea agreement and unilaterally impose a greater punishment than the plea
agreement contemplated. Rather, when presented with the information that it had to
sentence the misdemeanor consecutively, the trial court’s options were to impose an
authorized sentence less than the lid or refuse to accept the plea and give defendant the
opportunity to withdraw the plea.
       This brings us to the matter of remedy. We do not agree with defendant that
specific performance of the plea agreement is the correct remedy. Specific performance
would require modification of the sentence to bring it below the sentencing lid. But

                                             15
specific performance may only be ordered “ ‘when it will implement the reasonable
expectations of the parties without binding the trial judge to a disposition that he or she
considers unsuitable under all the circumstances.’ ” (Kim, supra, 193 Cal.App.4th at
p. 1362, quoting People v. Mancheno (1982) 32 Cal.3d 855, 861.) Here, the trial court
has already exercised its discretion not to dismiss the strike allegation, and we will not
modify the sentence to bring it under the agreed upon lid under such circumstances.
(Kim, at p. 1362 [refusing to order specific performance when the trial court exercised its
discretion to impose additional terms].) The sentence the trial court ultimately imposed
consisted of a low term doubled and two mandatory consecutive terms doubled, leaving
no room under the lid for a mandatory consecutive misdemeanor sentence.
Consequently, given the state of the pleadings, specific performance is barred because a
legally authorized sentence cannot be reached under the circumstances. Accordingly, for
this additional reason, specific performance is not the appropriate remedy. (Id. at
pp. 1362-1363 [specific performance is barred when the sentence to which the parties
agreed, based on the present state of the pleadings, violates the sentencing laws].)
       Similar to the situation in Kim, the present appeal would have been obviated had
the prosecutor ensured that the agreed upon sentence was authorized by law or
conformed the pleadings to the agreed upon sentence so that the latter would be
authorized by law, and “[t]he prosecutor compounded these omissions by affirmatively
urging the court to impose greater punishment than defendant agreed to.” (Kim, supra,
193 Cal.App.4th at p. 1365.) But the problem the prosecution created can be
ameliorated. On remand, the prosecution can move to amend the information to dismiss
the misdemeanor petty theft with a prior conviction which resulted in the additional 30
day sentence. (See ibid. [appellate court suggested that a plea withdrawal could be
avoided by the prosecution amending the indictment to omit enhancement allegations
triggering the additional required sentence].)



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       Thus, on remand, if the prosecution dismisses count 5, misdemeanor petty theft
with a prior, and the trial court once again approves of the agreed upon sentencing lid, the
defendant is not entitled to withdraw his plea. Or if the trial court concludes that in the
proper exercise of its discretion it can impose a legally authorized sentence that does not
exceed the sentencing lid (e.g., by dismissing the strike as to one or more counts), it may
vacate the current sentence and resentence defendant to that new sentence. In that
circumstance, defendant is likewise not entitled to withdraw his plea. But if the
misdemeanor is not dismissed and the trial court, in the exercise of its discretion does not
approve of a sentence that is no longer than the maximum sentencing lid, then the court
must expressly offer defendant the opportunity to withdraw his plea. If defendant
declines the opportunity to withdraw his plea, the court may impose the same sentences it
previously imposed.
                                      DISPOSITION
       The judgment is reversed and the cause is remanded to the trial court for further
proceedings.


                                                         MURRAY                , J.



We concur:



      ROBIE                 , Acting P. J.



      MAURO                 , J.




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