Filed 12/22/15 P. v Zavala 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                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B262421
                                                                          (Super. Ct. No. 2013000274)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JUAN CARLOS ZAVALA,

     Defendant and Appellant.


                   Juan Carlos Zavala appeals a judgment after conviction by plea of guilty to
two counts of offering to sell an assault weapon (Pen. Code, § 30600, subd. (a))1 and one
count of offering a handgun for sale (§ 27500, subd. (a)). He admitted a prior strike
conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 459, 460.) He agreed to a 14-
year prison term, and received it, but now contends the sentence should not have been
configured as a second-strike. We affirm.
                                                   BACKGROUND
                   On October 8, 2012, Zavala sold a M1 carbine rifle to a confidential
informant. Two days later, Zavala sold him a Walther P22 handgun. Two weeks later,
Zavala sold two "AK-47 style" rifles and four high-capacity magazines to an informant
and an undercover deputy sheriff. When he was arrested, Zavala had a handgun and a live
round of ammunition in his car. Zavala has a 1998 felony conviction for robbery.


1
    All statutory references are to the Penal Code.
               An information charged Zavala with six felony counts of possessing and
offering to sell weapons and ammunition. (§§ 30600, subd. (a), 32310, 27500, subd. (a),
30305, subd. (a).) Each count alleged his prior strike. (§§ 211, 667, subd. (c)(1), 667,
subd. (e)(1), 1170.12, subds. (a)(1), (c)(1).)
               Zavala pled guilty to two counts of selling assault weapons and one count of
selling a handgun to a person prohibited by law from possessing it, with a maximum
agreed-upon sentence of 14 years in state prison. As a term of the plea agreement, he
admitted his prior strike and agreed: "Because I am admitting a prior strike conviction, I
may accrue prison worktime credit not to exceed 20 percent of the total term of
imprisonment." Zavala acknowledged that the maximum term for his offenses was 22
years. At the sentencing hearing, defense counsel stated that "[t]he People have . . .
threatened . . . not to dismiss any counts if the Court deviates from their 14-year mandate."
               The trial court sentenced Zavala to a 14-year term in which each term was
doubled for the strike. It consisted of a four-year term (the low term), doubled to eight, for
the first count (§ 30600, subd. (a)); a two-year term (one-third the midterm) doubled to
four years for the second count (ibid.); and a one-year term (one-third the midterm)
doubled to two years for the third count (§§ 27500, 667, subd. (e)(1), 1170.12, subds.
(a)(1), (c)(1)).
               The trial court denied Zavala's motion to strike his prior strike. (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 508 (Romero).) The court said, "I don't
see any reason to strike the strike[]." It acknowledged that Zavala is a "good father and a
good provider" and has good qualities, but stated that he is "no stranger to weapons and
their use." The court said that in the 1998 robbery offense Zavala intimidated the victim
by "threatening to have a gun" and that he was subsequently arrested in 2005 with a loaded
nine-millimeter semiautomatic handgun. It said that the weapons Zavala sold "can do [a]
serious, serious, serious amount of damage" and that Zavala "had no idea where they were
going to end up" when he sold them.
               Zavala offered to withdraw his plea and plead to "whatever . . . is required" if
the trial court would grant his Romero motion. The court responded that, in those

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circumstances, "I would not be able to abide by the 14-year sentence because I am required
to sentence consecutively on the subordinate counts which winds up with more time and
not less time." Zavala did not object to the court's response. He now presents alternatives
that would result in something close to a 14-year term if he were sentenced on all six
counts.
                                        DISCUSSION
              Zavala received the 14-year term he negotiated and agreed to under the terms
of the plea agreement. He must abide by its terms.
              Zavala contends that his appeal does not challenge the validity of the 14-year
term. Instead, he challenges the trial court's postplea decision to deny his Romero motion.
A challenge to a negotiated maximum sentence imposed as part of the plea bargain is a
challenge to the validity of the plea itself. (People v. Cuevas (2008) 44 Cal.4th 374, 384
[claim that agreed-upon term violated section 654 was substantive challenge to plea].) But
the right to urge the court to exercise its discretion to impose a shorter term is reserved:
the "'inclusion of a sentence lid implies a mutual understanding and agreement that the trial
court has authority to impose the specified maximum sentence and preserves only the
defendant's right to urge that the trial court should or must exercise its discretion in favor
of a shorter term.'" (Id. at p. 380.)
              Zavala does not contend the sentencing court abused its discretion when it
denied his request to strike his strike. Instead, he contends the trial court did not
understand that it had other sentencing choices, as demonstrated by its remark about
consecutive sentencing. (People v. Downey (2000) 82 Cal.App.4th 899, 912 [failure to
exercise discretion requires reversal].) Zavala argues that if he had pled to all six counts,
the trial court could have granted his Romero motion and still configured a sentence that
would result in a term of 13 years 4 months, close to 14 years, "albeit without the 80%
service requirement." But this alternative is not consistent with the plea agreement. It
would require withdrawal of the plea and negotiation of new and better terms for Zavala.
And the court could not grant the Romero motion because it did not believe Zavala was
outside the spirit of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161

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[court must determine whether the defendant may be deemed outside the scheme's spirit
and treated as though he had no prior strike conviction].) The court saw no reason to strike
the strike. Zavala offers another alternative that would have exceeded 14 years but, "with
credits of 50%, would have resulted in an actual prison term far less than the fourteen-year
term to be served at 80%." But Zavala agreed he would not receive 50 percent worktime
credits. "[D]efendants who have received the benefit of their bargain should not be
allowed to trifle with the courts by attempting to better the bargain through the appellate
process." (People v. Hester (2000) 22 Cal.4th 290, 295 [a defendant who pled guilty in
exchange for a specified sentence may not challenge the sentence on the ground it is
unauthorized].)
               The record demonstrates that the trial court understood and properly
exercised its discretion to grant or deny Zavala's Romero motion when it weighed the
factors in favor of, and against, striking the strike. (People v. Carmony (2004) 33 Cal.4th
367, 371 [appellate courts review a decision not to strike a strike for abuse of discretion].)
The court considered the circumstances of Zavala's prior conviction, his history, his
character, and the circumstances of the present offense before it concluded, "I don't see any
reason to strike the strike[]."
                                       DISPOSITION
               The judgment is affirmed.
               NOT TO BE PUBLISHED.




                                           GILBERT, P.J.
We concur:



               YEGAN, J.



               PERREN, J.
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                                  Nancy Ayers, Judge

                           Superior Court County of Ventura

                          ______________________________


             Richard Lennon, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A.
Miyoshi, Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.




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