Filed 4/10/13 P. v. Alfaro CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037912
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1065458)

         v.

ADAM HENRY ALFARO,

         Defendant and Appellant.



         Pursuant to a plea bargain, defendant Adam Henry Alfaro pleaded no contest to
three counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a))1 and
admitted the allegation that he personally and intentionally discharged a firearm in the
commission of the attempted murder charged in count one (§ 12022.53, subd. (c)). On
appeal, defendant claims that the trial court failed to adhere to the sentence agreement, an
error which is conceded by the People. We modify the judgment and affirm the judgment
as modified.
                                                             I
                                                Procedural History
         A first amended information, filed August 8, 2011, charged defendant Alfaro and
a codefendant with committing three counts of attempted murder (§§ 187, 189, 664, subd.

1
         All further statutory references are to the Penal Code unless otherwise specified.
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(a)) on or about December 31, 2009 (counts one through three). The information also
charged them with committing three counts of assault with a firearm against the same
victims (§ 245, subd. (a)(2)) on or about December 31, 2009 (counts four to six). A
seventh count charged defendant Alfaro with unlawfully discharging a firearm at an
occupied motor vehicle on or about December 31, 2009. (§ 246.)
      The information alleged that the murders attempted by defendant Alfaro were
willful, deliberate, and premeditated (§§ 189, 664, subd. (a)). As to each attempted
murder count, the information alleged that defendant Alfaro personally and intentionally
discharged a firearm within the meaning of section 12022.53, subdivision (c). As to each
assault count, the information alleged that defendant Alfaro personally used a firearm
within the meaning of sections 12022.5, subdivision (a), and 1203.06.
      On August 8, 2011, defendant Alfaro pleaded no contest to the three counts of
attempted murder and also admitted, as to count one, the alleged sentence enhancement
pursuant to section 12022.53, subdivision (c), in exchange for a guaranteed 25-year
prison term and dismissal of the remaining charges and allegations.
      At the sentencing hearing on January 20, 2012, the court sentenced defendant to a
total prison term of 25 years. It reached that sentence by imposing a five-year mitigated
term on count one (§ 664, subd. (a)) and a consecutive 20-year sentence enhancement
(§ 12022.53, subd. (c)). The trial court then imposed two concurrent 25 year sentences,
consisting of five-year terms on counts two and three plus 20-year sentence
enhancements (§ 12022.53, subd. (c)).
                                            II
                                    Sentencing Error
      Defendant asserts that the court erred by imposing the sentence enhancements
attached to counts two and three under section 12022.53, subdivision (c), since he did not
admit the enhancement allegations and they should have been dismissed pursuant to the
plea bargain. The People concede error and we agree that the trial court erred.
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       " ' "When a guilty [or nolo contendere] 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.' ' [Citations.]"
(People v. Segura (2008) 44 Cal.4th 921, 930-931, fn. omitted.) Although a trial court
retains sentencing discretion to reject a plea bargain, a court that has accepted a plea
bargain is bound by it. (See ibid.) In addition, all enhancements must be "alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact." (§ 1170.1, subd. (e).) Moreover, unless a criminal defendant
waives the protection of the Sixth Amendment's right to jury trial, a sentence
enhancement allegation must be tried to a jury and proven beyond a reasonable doubt.
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348] ["Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt"].) In this case, the trial court imposed additional terms of imprisonment based on
enhancement allegations neither found true nor admitted and its sentence did not conform
to the plea agreement. Accordingly, the judgment must be modified.
                                          DISPOSITION
       We modify the sentence by striking the two concurrent 20-year enhancement
terms added to the base terms imposed on counts two and three pursuant to section
12022.53, subdivision (c). As modified, the judgment is affirmed. The trial court shall
prepare a new abstract of judgment reflecting the modification.


                                           ELIA, Acting P. J.
WE CONCUR:
       BAMATTRE-MANOUKIAN, J.
       MÁRQUEZ, J.


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