Filed 2/2/15 P. v. Giberson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

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




THE PEOPLE,                                                                                   C075492

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. CRF102456,
                                                                                       CRF114545)
         v.

DEAN LEE GIBERSON,

                   Defendant and Appellant.




         Defendant Dean Lee Giberson appeals from a judgment of the Yolo County
Superior Court sentencing him to four years eight months in state prison. On appeal he
contends the trial court erred when it found that it lacked authority to grant his request,
made pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero), to strike a
prior serious felony conviction he had admitted because the admission was part of a
negotiated plea. As the People acknowledge, and we agree, the trial court did so err.
Accordingly, we shall remand the matter to the trial court for a new Romero hearing.


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                                 FACTS AND PROCEEDINGS

       On June 2, 2010, pursuant to a plea bargain, defendant Dean Lee Giberson pleaded
no contest in amended criminal complaint CRF10-2456 (the 2010 case) to count 1,
transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and
admitted a prior strike conviction for making criminal threats (Pen. Code, § 422). In
exchange for defendant’s plea and admission, the court dismissed count 2, possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), count 3, possession of drug
paraphernalia (Health & Saf. Code, § 11364), count 4, driving without a valid driver’s
license (Veh. Code, § 12500, subd. (a)), and an allegation that defendant had served a
prior prison term (Pen. Code, § 667.5, subd. (b)). The agreement, as set forth in the plea
form, stated that “the matter of probation and sentence is to be determined solely by the
Court.” The trial court suspended imposition of judgment and placed defendant on
Proposition 36 probation for three years.
       On October 13, 2011, defendant was charged in case No. CRF11-4545 (the 2011
case) with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) with
allegations of a prior strike conviction and service of a prior prison term, the same
allegations that were charged in the 2010 case. On November 4, 2011, defendant pleaded
no contest to the drug charge and admitted both allegations. On November 18, 2011, the
court suspended imposition of judgment and placed defendant on Proposition 36
probation. Again, the plea form specified that “the matter of probation and sentence is to
be determined solely by the Court.” The court also revoked, but reinstated on the same
terms and conditions, defendant’s probation in the 2010 case.
       Following several findings of defendant’s being in violation of his Proposition 36
probation in both cases, but reinstating him to probation, the trial court, on August 2,
2013, again found him in violation of probation and excluded him from Proposition 36
probation.



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       At a sentencing hearing conducted on August 27, 2013, the trial court addressed
defendant’s request to strike the prior strike conviction alleged in each case pursuant to
Romero, supra, 13 Cal.4th at page 497 and decided to grant it. However, the prosecutor
objected to the court’s dismissing the 2010 allegation because, unlike the prior strike in
the 2011 case, the admission of the strike prior was a negotiated part of the plea bargain.
The matter was continued for further briefing.
       On October 3, 2013, relying on People v. Cunningham (1996) 49 Cal.App.4th
1044 (Cunningham), and People v. Ames (1989) 213 Cal.App.3d 1214 (Ames), the court
concluded it lacked the authority to grant the Romero request as to the 2010 case because
it was part of a negotiated plea.
       On November 14, 2013, in the 2010 case, the court sentenced defendant to the
lower term of two years, doubled to four years because of the strike. In the 2011 case,
the court struck the strike because it had not been admitted as part of a plea bargain since
defendant had pleaded to all charges and admitted the enhancements. The court also
struck the enhancement for service of the prior prison term. For the possession of the
methamphetamine conviction, the court imposed an eight-month consecutive term.

                                         DISCUSSION

       Defendant contends, and the People agree, the trial court erred when it determined
that it lacked authority to strike the prior strike conviction in the 2010 case. As we
explain below, we agree with the parties; hence, we shall remand the matter to the trial
court to afford it the opportunity to exercise its discretion to strike the prior conviction
pursuant to Romero.
       Where a specific sentence is a negotiated part of a plea bargain, the trial court is
without authority to alter it. (Cunningham, supra, 49 Cal.App.4th at pp. 1047-1048
[expressly agreed upon term of 32 months barred remand for court to exercise its
discretion to strike prior conviction]; Ames, supra, 213 Cal.App.3d at pp. 1217-1218


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[sentencing court had no authority to alter terms of plea bargain by dismissing special
circumstance that murder defendant had admitted in return for prosecution’s agreement
not to seek death penalty].) However, where the record shows that the plea bargain does
not include a specific sentence or range of punishment or prohibition on the court’s
sentencing discretion that was negotiated as part of the plea bargain, the trial court may
exercise its discretion and strike a prior serious felony conviction. (People v. Smith
(1997) 59 Cal.App.4th 46, 50-52.)
       In the 2010 case, the record shows that the plea bargain consisted of defendant’s
no contest plea to transportation of methamphetamine plus his admission of the prior
strike conviction in exchange for the dismissal of other counts and the service of a prior
prison term enhancement. The change of plea form, which was signed by the prosecutor,
confirms that sentencing in its entirety was left to the discretion of the trial court.
Specifically, condition 12 of the form states: “I understand that the matter of probation
and sentence is to be determined solely by the Court.” Additionally, condition 15 of the
form states: “This is a conditional plea. I will receive no state prison at the outset and
will be placed on Penal Code Section 1210.1(a) probation. (Proposition 36) If I refuse
drug treatment as a condition of probation, this plea will remain in effect and I will be
sentenced without any conditions on the plea.”
       Thus, aside from initially placing defendant on Proposition 36 probation, the plea
bargain contains no limits on the court’s sentencing discretion. The trial court was
simply mistaken in believing otherwise.




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                                      DISPOSITION

      The matter is remanded to the Yolo County Superior Court with directions to
consider defendant’s request pursuant to Romero to strike his prior serious felony
conviction.



                                                       HULL                 , Acting P. J.



We concur:



      ROBIE                , J.



      MAURO                , J.




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