Filed 11/6/15 P. v. Whitner CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040856
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1120584)

         v.

DONALD BENN WHITNER,

         Defendant and Appellant.



         Defendant Donald Benn Whitner entered into a plea agreement in which he
pleaded guilty to four counts of second degree robbery (Pen. Code, §§ 211, 212.5,
subd. (c)1 – counts 1, 2, 3, and 5) and two counts of possession of a firearm by a felon
(§ 12021, subd. (a)(1) – count 4 and 7). Defendant also admitted that he personally used
a handgun (§ 12022.53, subd. (b)) as to counts 2, 3, and 5 and had two prior strike
convictions (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667,
subd. (a)), and two prior prison commitments (§ 667.5, subd. (b)). In exchange for
defendant’s pleas and admissions, one count of second degree robbery and the associated
personal use of a handgun enhancement was dismissed. After denying defendant’s
motion to dismiss a prior strike conviction pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced defendant to 100


1
         All further statutory references are to the Penal Code.
years to life consecutive to 67 years four months in state prison. On appeal, defendant
contends: (1) the trial court violated the terms of the plea agreement by sentencing him
to a prison term that exceeded the maximum sentence under the agreement; and (2) the
trial court abused its discretion when it denied his Romero motion. We reverse the
judgment and remand for resentencing.


                                     I. Statement of Facts
       In September 2011, defendant gave a note to a teller at the Bank of the West and
indicated that he wanted $10,000. The teller gave him all of the money that she had.
       On October 4, 2011, defendant went to a different branch of the Bank of the West
and told a teller that he wanted $30,000. When she began to walk away, he lifted his
shirt and revealed a semiautomatic handgun in his waist. After she and her supervisor put
the money into a bag, defendant took the bag.
       A week later, defendant told a teller at the U.S. Bank to give him $50,000 and
pulled out a handgun. The teller gave him the money.


                                         II. Discussion
                             A. Violation of the Plea Agreement
       Defendant contends, and the Attorney General concedes, that the trial court
violated the terms of the plea agreement.
       Pursuant to the terms of the plea agreement, the trial court advised defendant that
he faced a maximum prison sentence of 140 years eight months to life. However, the
trial court adopted the probation department’s recommendation and sentenced defendant
to a term of 100 years to life consecutive to 67 years four months in state prison.
       “A negotiated plea agreement is a form of contract, and it is interpreted according
to general contract principles. [Citations.] ‘The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties. [Citation.] If
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contractual language is clear and explicit, it governs. [Citation.]’ ” (People v. Shelton
(2006) 37 Cal.4th 759, 767.) “[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” (Santobello v. New York (1971) 404 U.S.
257, 262.) Here, the trial court violated the terms of the plea agreement by imposing a
prison term that exceeded the maximum sentence under the plea agreement by almost 27
years.
         When a plea agreement is violated, courts may order specific enforcement or
allow the defendant to withdraw his plea. (People v. Mancheno (1982) 32 Cal.3d 855,
861-862.) Relying on People v. Kim (2011) 193 Cal.App.4th 1355 (Kim), defendant
argues that the matter should be “remanded for [the trial] court to either specifically
enforce the bargain if it feels that would not impinge on its sentencing discretion or
permit [him] to set aside his previously entered guilty plea to the charges and admission
of the sentencing enhancements.” In Kim, the defendant entered into a plea agreement in
which he would serve a term of life without parole. (Id. at p. 1358.) However, the trial
court violated the terms of the plea agreement by sentencing him to a life-without-parole
term consecutive to three terms: life with the possibility of parole, 400 years to life, and
29 years eight months. (Ibid.) This court rejected specific enforcement of the plea
agreement: “But ordering the entry of a specific sentence is only appropriate ‘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.’
[Citation.] Here the trial court may have been exercising its sentencing discretion when it
imposed the additional terms.” (Kim, at p. 1362.) Similarly in the present case, it is not
clear whether specific enforcement of the plea agreement would bind the trial court to a
disposition that it considers unsuitable in the present case.




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                                      B. Romero Motion
       Defendant next contends that the trial court abused its discretion by failing to
dismiss one of his prior strike convictions.
                                 1. Prior Strike Convictions
       In 2003, defendant was convicted of carjacking (§ 215) and second degree robbery
(§§ 211, 212.5, subd. (c)).2 The factual basis for the prior strike convictions is
summarized in the probation report. The victim was looking for male prostitutes when he
picked up defendant and codefendant Dominic Dickerson. Defendant and Dickerson
directed the victim to drive to a location near a grocery store. When the three men exited
the victim’s vehicle, the victim thought that they were going to have sex. However,
Dickerson pulled out a gun, cocked the hammer, and told the victim to “suck on this.”
He put the gun in the victim’s mouth and told the victim to give him money. Both
defendant and Dickerson took $700.00 and the victim’s cell phone. They got into the
victim’s car and the victim ran away. Dickerson fired a shot at the victim as he ran away,
but he missed. Defendant and Dickerson fled in the victim’s car.
                                 2. Procedural Background
       Defendant brought a motion to dismiss one of his two prior strike convictions. His
motion summarized his background, a psychological evaluation, the charged offenses,
and his version of the events underlying his prior strike convictions. Defendant argued
that the prior strike convictions were based on “the same act and same occurrence,” and
thus one of them should be vacated “in the furtherance of justice.”
       The prosecution opposed the Romero motion on the ground that “defendant’s
extremely dangerous and serious criminal conduct render[ed] him squarely within the
spirit of the Three Strikes Law.” The prosecution pointed out that defendant, who was 29
years old, had committed five felonies and six misdemeanors since 2002 in addition to

2
      This court has taken judicial notice of the probation report, which was filed on
June 20, 2003, in People v. Donald Benn Whitner (case No. CC271090).
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the six current felonies. The prosecution also noted that the severity of defendant’s
criminal conduct had escalated despite his increasing age and two significant prison
sentences. The prosecutor relied on the probation report in case No. CC271090 to
summarize the conduct involved in the prior strike convictions.
                                           3. Analysis
       “[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’
pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in
question must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
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 had not presently
been convicted of one or more serious felonies and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161.) “[A] court’s failure to dismiss or strike a prior
conviction allegation is subject to review under the deferential abuse of discretion
standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “A trial court abuses its
discretion when the factual findings critical to its decision [on whether to strike a prior
conviction] find no support in the evidence.” (People v. Cluff (2001) 87 Cal.App.4th
991, 998.)
       Relying on People v. Vargas (2014) 59 Cal.4th 635 (Vargas), defendant contends
that the trial court abused its discretion when it failed to strike one of his prior
convictions under section 1385. Defendant maintains that the record establishes that his
two prior strike convictions were based on the same criminal act, that is, the forcible
taking of multiple items of a single victim’s property.
       Vargas, supra, 59 Cal.4th 635 considered whether a defendant’s “two prior
convictions arising out of a single act against a single victim [could] constitute two
strikes under the Three Strikes law.” (Id. at p. 637.) In Vargas, the defendant had
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previously been convicted of robbery and carjacking, which were “based on the same act,
committed at the same time, and against the same victim.” (Id. at p. 638.) In determining
whether the defendant’s case fell into the rare category in which “no reasonable person
would disagree that defendant fell outside the spirit of the Three Strikes law,” Vargas
discussed a related issue which was presented in People v. Benson (1998) 18 Cal.4th 24
(Benson). (Vargas, at p. 642.) In Benson, the defendant’s two prior strike convictions
were based on an incident in which the defendant returned to a neighbor’s apartment to
retrieve his keys, grabbed his neighbor, forced her to the floor, and repeatedly stabbed
her. (Vargas, at p. 642.) After the defendant in Benson was convicted of residential
burglary and assault with intent to commit murder, the trial court stayed one of the
convictions pursuant to section 654 since both offenses were based on the same course of
conduct. (Vargas, at p. 642.) When the defendant later committed another felony, it was
charged as a third strike. (Ibid.) Benson rejected the defendant’s argument that he had
only one qualifying prior strike conviction because punishment had been stayed for one
of the prior convictions. (Vargas, at p. 642.)
       Vargas also quoted a footnote in Benson, which stated: “ ‘Because the proper
exercise of a trial court’s discretion under section 1385 necessarily relates to the
circumstances of a particular defendant’s current and past criminal conduct, we need not
and do not determine whether there are some circumstances in which two prior felony
convictions are so closely connected—for example, when multiple convictions arise out of
a single act by the defendant as distinguished from multiple acts committed in an
indivisible course of conduct—that a trial court would abuse its discretion under section
1385 if it failed to strike one of the priors.’ (Benson, supra, at p. 36, fn. 8, italics
added.)” (Vargas, supra, 59 Cal.4th at p. 643.) Vargas acknowledged that the
hypothetical set forth in this footnote was presently before the court. (Id. at p. 645.)
Relying on language in the ballot argument in favor of the “Three Strikes” initiative,
Vargas concluded that “the voting public would reasonably have understood the ‘Three
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Strikes’ baseball metaphor to mean that a person would have three chances—three
swings of the bat, if you will—before the harshest penalty could be imposed. The public
also would have understood that no one can be called for two strikes on just one swing.
Permitting the trial court below to treat defendant’s 1999 robbery and carjacking
convictions as separate strikes—despite the fact they were based on a single criminal
act—would do just that, and thus contravene the voter’s clear understanding of how the
Three Strikes law was intended to work. Given the obvious twinning of the language
used in the legislative version of the Three Strikes law, we discern no different intent
with that version of the law.” (Vargas, at pp. 645-646.)
       Vargas also disagreed with the Attorney General’s position that the electorate
could have found that defendants who have violated more than one criminal statute pose
a higher risk to public safety than those who have not. (Vargas, supra, 59 Cal.4th at
p. 646.) Vargas reasoned: “We would agree had the offender committed more than one
act, whether separately or during a continuous course of conduct, as in Benson, supra, 18
Cal.4th 24. As we stated in Benson, ‘the electorate and the Legislature rationally could—
and did—conclude that a person who committed additional violence in the course of a
prior serious felony (e.g., shooting or pistol-whipping a victim during a robbery, or
assaulting a victim during a burglary) should be treated more harshly than an individual
who committed the same initial felony, but whose criminal conduct did not include such
additional violence.’ [Citation.] But where, as here, an offender committed but a single
act, we disagree she poses a greater risk to society merely because the Legislature has
chosen to criminalize the act in different ways. The Legislature is free to criminalize an
act in multiple ways, but that it has done so does not of itself make an offender more
blameworthy, or more dangerous, within the meaning of the Three Strikes law.” (Id. at
pp. 646-647.) Vargas noted that Benson “involved multiple criminal acts (albeit
committed in a single course of conduct) and not, as here, multiple criminal convictions
stemming from the commission of a single act.” (Vargas, at p. 648.) Thus, Vargas held
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that the trial court was required to dismiss one of the prior strike convictions. (Id. at
p. 649.)
       The present case is more similar to Benson than Vargas. Here, defendant’s prior
strike convictions did not arise out of a “single act” within the meaning of Vargas. While
the victim, defendant, and Dickerson were outside the victim’s vehicle, Dickerson put a
gun in the victim’s mouth and demanded money. Both defendant and Dickerson took the
victim’s money and cell phone. Defendant and Dickerson then entered the victim’s car.
As the victim ran away, Dickerson fired a shot at the victim. Thus, the act of taking the
victim’s money and cell phone at gunpoint was distinct from the act of firing the gun at
the victim as the car was taken. Since there was substantial evidence to support the trial
court’s implied finding that there were separate acts of violence, the trial court was not
required to dismiss one of the prior strike convictions.
       Defendant’s reliance on People v. Dominguez (1995) 38 Cal.App.4th 410 is
misplaced. Dominguez concluded that carjacking and a robbery constituted “ ‘the same
act’ ” where the defendant “placed the cold metallic object to the back of the victim’s
neck and demanded ‘everything he had . . . .’ Simultaneously, the victim handed over his
jewelry and van by handing over the jewelry and fleeing the van.” (Id. at pp. 419-420.)
In contrast to Dominguez, here, though the robbery and carjacking occurred close in time,
there were separate acts of violence against the victim.
       Defendant also argues that the trial court did not have the opportunity to consider
whether his prior strike convictions were based on the same act, because his sentence was
imposed almost five months before Vargas, supra, 59 Cal.4th 635. However, defendant
argued in his sentencing memorandum that his two prior strike convictions constituted
the same act and referenced Benson, supra, 18 Cal.4th 24. Prior to ruling on the motion
to dismiss one of the prior strike convictions, the trial court stated that it had read and
considered defendant’s sentencing memorandum. Thus, we reject defendant’s argument.


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                                       III.   Disposition
       The judgment is reversed and remanded for further proceedings. The trial court is
directed to decide whether to impose a maximum term of no more than 140 years eight
months. If the trial court does adopt such a sentence, it shall enter a judgment imposing
it. If the trial court does not adopt a sentence pursuant to the plea agreement, it shall offer
defendant the opportunity to withdraw his plea. If defendant chooses to withdraw his
plea, the matter shall proceed as if no plea had been entered.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




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