Filed 7/9/14 P. v. Maniord CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 8.1115.




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




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073161

         v.                                                                     (Super. Ct. No. NCR79534)

GARY LEE MANIORD,

                   Defendant and Appellant.

         In this appeal, defendant Gary Lee Maniord challenges the trial court’s denial of
his Romero motion to strike a prior serious felony conviction.1 Defendant argues the trial
court misconstrued the terms of the plea bargain in denying his Romero motion, and the
record does not establish how the trial court would have exercised its discretion if it had



1     We refer to defendant’s invitation to the trial court to strike his prior serious felony
conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) as
a “Romero motion.” (People v. Clancey (2013) 56 Cal.4th 562, 570-571; People v. Scott
(2009) 179 Cal.App.4th 920, 923-924.)


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engaged in the proper analysis. The People counter that defendant received the benefit of
the negotiated plea bargain, and that the record establishes the trial court would not have
granted the Romero motion even if the negotiated plea had not precluded such
consideration.
       Based on the terms of the negotiated plea, we conclude defendant’s argument has
merit. The trial court denied defendant’s Romero motion based on the fact defendant had
already received the benefit of the plea agreement. This is not a proper factor for a
Romero motion. Accordingly, we remand the matter to the trial court to hear and
determine whether defendant’s Romero motion should be granted or denied after
considering the proper factors.
                                     BACKGROUND
       The facts of defendant’s underlying offense are not at issue in this appeal. Thus, it
suffices to note defendant gave consent for a Tehama County deputy sheriff to search his
car on the evening of June 5, 2010. Inside defendant’s car, the deputy discovered a bag
containing 2.3 grams of methamphetamine. A hypodermic syringe was found in
defendant’s pocket. Defendant claimed the methamphetamine was for his personal use.
       Under the terms of a negotiated plea bargain, defendant pled guilty to
transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and
admitted a serious felony conviction (1996 assault with a deadly weapon) (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12).2 In exchange, the People dismissed the remaining
counts (misdemeanor driving without a valid license and misdemeanor possession of
drug paraphernalia), and agreed that defendant be considered for probation under
section 1210.1 (Proposition 36 probation). Terms of the negotiated plea also included an



2      Undesignated statutory references are to the Penal Code.


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agreement if defendant’s Proposition 36 probation were revoked he would be subject to a
maximum sentence of four years, doubled for the prior strike.3 However, the plea deal
did not specify a minimum sentence. The plea agreement also did not preclude a
Romero motion.
       At the entry of plea, the trial court inquired whether defendant had been promised
anything other than dismissal of the remaining counts and consideration for Proposition
36 probation. Defendant answered in the negative.
       The trial court suspended imposition of sentence and granted defendant
Proposition 36 probation for a period of three years subject to certain terms and
conditions –- including the requirements defendant participate in an alcohol and drug
treatment program and submit to drug and alcohol tests.
       Three months into his term of probation, defendant committed a violation by
testing positive for methamphetamine. The trial court reinstated defendant’s Proposition
36 probation. Several months later, defendant again committed a violation by failing to
participate in an alcohol and drug treatment program. The court reinstated defendant’s
Proposition 36 probation. About a year later, defendant violated probation by failing to
appear for an appointment with the probation department and failing to enroll in a
treatment program.
       Prior to sentencing after his third violation of probation, defendant filed a Romero
motion to strike his prior serious felony conviction. The People opposed the Romero



3       The maximum sentence for a violation of Health and Safety Code section 11379,
subdivision (a), is four years. We read the plea agreement to provide for a maximum
sentence of eight years (four years doubled for the prior strike). The parties appear to
agree with this reading as neither has asserted the six year sentence (three years doubled
for the prior strike) imposed after the third probation violation is more than the maximum
sentence provided in the plea agreement.


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motion, arguing the prior strike was admitted as part of the plea bargain. The People also
noted defendant’s extensive criminal history, parole violations, and poor performance
on probation.
       The trial court declined to strike the prior strike and refused to grant defendant
probation. Defendant was sentenced to state prison to serve a term of six years –-
comprising the midterm of three years, doubled for the prior strike.
                                       DISCUSSION

                Denial of Motion to Strike a Prior Serious Felony Conviction
                                             A.
                    Construing Terms of the Negotiated Plea Agreement
       As the California Supreme Court has explained, “A negotiated plea agreement is a
form of contract, and it is interpreted according to general contract principles. (People v.
Toscano (2004) 124 Cal.App.4th 340, 344; People v. Gipson (2004) 117 Cal.App.4th
1065, 1069; People v. Haney (1989) 207 Cal.App.3d 1034, 1037; People v. Alvarez
(1982) 127 Cal.App.3d 629, 633.) ‘The fundamental goal of contractual interpretation is
to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual
language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, “[i]f
the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in
the sense in which the promisor believed, at the time of making it, that the promisee
understood it.” (Id., § 1649; see AIU [Ins. Co. v. Superior Court (1990) 51 Cal.3d 807,]
822.)’ (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264–1265.) ‘The
mutual intention to which the courts give effect is determined by objective manifestations
of the parties’ intent, including the words used in the agreement, as well as extrinsic
evidence of such objective matters as the surrounding circumstances under which the
parties negotiated or entered into the contract; the object, nature and subject matter of the



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contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635–1656; Code
Civ. Proc., 1859–1861, 1864; [citations].)’ (Morey v. Vannucci (1998) 64 Cal.App.4th
904, 912; see also People v. Toscano, supra, at p. 345.)” (People v. Shelton (2006)
37 Cal.4th 759, 767.)
       Here, the People argued and the trial court agreed the Romero motion had to be
denied because defendant admitted the prior strike as part of the negotiated plea. The
trial court stated: “The defendant’s request to strike the prior under Romero is denied.
The defendant pled to the 11379 Health and Safety Code violation, admitted the prior
strike. In exchange, the 12500 Vehicle Code charge was dismissed. Dismissal of that
12500 made him eligible for Prop 36 probation, which was granted. I see no good cause
to strike the prior, given the fact that he was given the benefit of the bargain.”
       Defendant’s negotiated plea agreement, however, did not contain either a
minimum prison term or a prohibition on defendant’s ability to request the trial court to
consider striking the prior conviction under section 1385. Nothing precluded defendant
from asking the trial court to strike his prior conviction in the interests of justice.
(People v. Carmony (2004) 33 Cal.4th 367, 375.)
       Before sentencing on his third violation of probation, defendant asked the trial
court to strike his prior conviction and argued for probation in the interest of justice or an
“appropriate prison sentence without the sentence being doubled by the strike
enhancement.” Imposition of probation or a lower prison term would not have violated
the plea agreement because no minimum sentence was specified. Thus, the trial court
had discretion to consider striking defendant’s prior conviction consistent with Romero,
supra, 13 Cal.4th 497.
       However, the trial court denied the Romero motion on the ground defendant had
already received the benefit of the bargain. In so concluding, the trial court relied on the




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same reasoning rejected in People v. Smith (1997) 59 Cal.App.4th 46 (Smith). In Smith,
the defendant entered a negotiated plea of guilty to possession and sale of cocaine base
and admitted a prior strike in exchange for dismissal of several other counts. (Id. at
pp. 47-48.) At sentencing, defendant requested the trial court exercise its discretion in
order to dismiss a prior strike. (Id. at p. 48.) The trial court in Smith denied the motion
on the ground it lacked discretion under section 1385 to strike the prior.4 (Id. at pp. 48-
49.) On appeal, defendant argued the trial court failed to properly exercise its discretion.
(Id. at p. 52.) The Attorney General argued that striking the prior would have violated
the negotiated plea because defendant received the benefit of the bargain in securing the
dismissal of several charges. (Id. at p. 48.) In support, the Attorney General cited cases
in which defendants had been held estopped to challenge sentences imposed consistent
with the plea bargains. (Id. at p. 51.)
       The Smith court reversed and explained: “We find this focus on the benefit of the
bargain unhelpful. Presumably, every plea bargain entails some benefit, and this only
begs the real questions: What was the bargain, and did it preclude a striking under
Romero? Those questions, in our view, undergird the rulings in the cited cases. The
indicated sentences were exactly what the defendants got, and a remand for a Romero
exercise of discretion would have violated the bargain.” (Smith, supra, 59 Cal.App.4th
at p. 51.) The Smith court concluded nothing in the plea agreement prohibited defendant
in that case from requesting that the prior conviction be stricken. (Id. at p. 51.) And,
nothing in the plea agreement precluded the trial court from striking the prior. (Ibid.)




4      Although the trial court in Smith ruled on the defendant’s request to strike before
the California Supreme Court’s decision in Romero, the Court of Appeal had the benefit
of the Supreme Court’s guidance and applied Romero in reaching its conclusion. (Smith,
supra, 59 Cal.App.4th at p. 47.)


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          As in Smith, supra, 59 Cal.App.4th 46, the negotiated plea agreement in this case
has no prohibition on a Romero motion and does not specify any minimum term that
would have disallowed the trial court from granting the motion. Thus, the trial court
erred in concluding that striking the prior would have violated the terms of the negotiated
plea.
                                               B.
                                   Romero Motion Analysis
          In deciding a Romero motion, the trial court “must consider whether, in light of
the nature and circumstances of [defendant’s] present felonies and prior serious and/or
violent felony convictions, and the particulars of [defendant’s] background, character,
and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in
part, and hence should be treated as though he [or she] had not previously been convicted
of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th
148, 161 (Williams).)
          In reviewing a decision to deny a Romero motion, we do not presume the trial
court erred in its analysis. We reverse only “where the record affirmatively discloses that
the trial court misunderstood the scope of its discretion.” (People v. Fuhrman (1997)
16 Cal.4th 930, 944.) In such instances, “remand to the trial court is required to permit
that court to impose sentence with full awareness of its discretion as clarified in Romero.”
(Ibid.)
          Here, the trial court did not engage in an analysis of the factors enumerated by the
California Supreme Court in Williams. (See generally Williams, supra, 17 Cal.4th at
p. 161.) Contrary to the Attorney General’s assertion, this is not a silent record case in
which the trial court’s reasoning in denying the Romero motion was unstated and
therefore subject to a presumption of correctness. Instead, the trial court expressly




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reasoned there was no “good cause to strike the prior” solely on the basis defendant had
already received the benefit of the plea bargain. Thus, the trial court did not consider the
factors pointed out by defendant’s Romero motion, including: (1) the prior strike was 16
years old, (2) the prior strike was more serious than the current offense, (3) defendant
was not armed and did not cause any injury or damage during his present offense, (4) the
current offense demonstrated little criminal sophistication, (5) defendant was remorseful,
(6) defendant posed no immediate physical danger to anyone, and (7) defendant’s
prospects for the future were hopeful if not imprisoned.
       The trial court also did not consider the People’s bases for opposing the Romero
motion on grounds (in addition to the asserted benefit-of-the-bargain rationale) that
included: (1) defendant’s lengthy criminal history, both before and after the strike,
(2) his three felony convictions since his strike, (3) his conviction for being a felon in
possession of a firearm in 2003, (4) parole violations in 2000 and 2003, and (5) his
unsatisfactory performance on Proposition 36 probation. However, the People’s written
opposition offered no description of the nature of the convictions (except for noting
the firearm possession conviction) or probation violations, and we cannot say the
trial court would have declined to strike the prior based on a proper analysis of the
factors articulated in Williams, supra, 17 Cal.4th 148.
       The Attorney General points out defendant “neglects to mention that, during
sentencing, the court went on to say it had read the probation officer’s report and
determined [defendant] was not a good candidate for continued probation.” Here, the
trial court indicated it denied probation to defendant because “[t]he defendant’s failed on
a grant of probation, performing poorly on probation/parole in the past.” Revocation of
probation, as in this case, may be premised on poor performance on probation. (People v.
Hawthorne (1991) 226 Cal.App.3d 789, 795.) By contrast, in deciding on a motion to




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strike a prior, Williams requires a consideration of the nature and circumstances of
defendant’s present and prior felony convictions and the particulars of defendant’s
background, character, and prospects. (Williams, supra, 17 Cal.4th at p. 161.)
       The Attorney General alternately argues the trial court understood the scope of its
discretion, relying on People v. Mack (1986) 178 Cal.App.3d 1026 (Mack) and People
v. Zichwic (2001) 94 Cal.App.4th 944 (Zichwic). These cases are inapposite. Mack
involved “a silent record on the issue of whether the trial judge did or did not believe it
had discretion to strike the prior under . . . section 1385.” (178 Cal.App.3d at p. 1032.)
By contrast, the trial court in this case expressly relied on a single improper factor in
denying the Romero motion.
       In Zichwic, the trial court denied a Romero motion after expressing concerns about
the “harsh” sentence resulting from the prior strikes. (Zichwic, supra, 94 Cal.App.4th at
p. 958.) The Court of Appeal affirmed the denial because the trial court considered the
proper factors set forth in Williams and recognized harshness of the result is not a proper
factor to be considered under Williams. (Zichwic, supra, 94 Cal.App.4th at pp. 959-960;
Williams, supra, 17 Cal.4th at p. 161.) In contrast to the Zichwic trial court’s proper
disregard for an improper factor, the trial court in this case erred by basing the denial of
the motion to strike on an improper factor.
       Accordingly, we remand the case to the trial court for proper consideration of
defendant’s Romero motion.
                                       DISPOSITION
       Defendant’s conviction is affirmed. The judgment is reversed and the cause is
remanded to the trial court with directions to hear and determine defendant’s motion to
strike his prior serious felony conviction consistent with Romero, supra, 13 Cal.4th 497
and Williams, supra, 17 Cal.4th at page 161. If the motion is granted, defendant shall be




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resentenced. If the Romero motion is denied, defendant’s six-year sentence shall
be reimposed.



                                                      HOCH       , J.



We concur:



      MAURO         , Acting P. J.



    MURRAY          , J.




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