People v. Smith

We hold in this case charged under the “Three Strikes” law (Pen. Code, § 1170.12; unspecified section references are to that code) that the defendant is entitled to a remand under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ] (Romero), where the record of his pre-Romero motion to strike shows the court felt it had no discretion and where the motion appears to have been consistent with his previously negotiated plea.

A second amended complaint charged Wayne Smith with three counts of selling (Health & Saf. Code, § 11352, subd. (a)) and one count of possessing (id., §11350, subd. (a)) cocaine base, each count carrying allegations of presumptive probation ineligibility (§ 1203.073, subd. (b)(6)), a prior strike (§1170.12, subds. (a)-(c)) consisting of a 1994 attempted robbery with weapon use (§§ 664/211, 12022, subd. (b)), and a prison term served for the prior (§ 667.5, subd. (b)).

*48 In a plea bargain, Smith pled guilty to counts 1 and 4 (one sale and the possession) and admitted the strike and probation-ineligibility allegations, in return for dismissal of the other counts with a Harvey waiver (People v. Harvey (1979) 25…

My distinguished colleagues effectively concede that their ruling runs counter to three rulings of our sister courts in, in *53 chronological order, People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1058 [ 56 Cal.Rptr.2d 220 ], People v. Cunningham (1996) 49 Cal.App.4th 1044,1047-1048 [ 57 Cal.Rptr.2d 179 ], review denied, and People v. Cepeda (1996) 49 Cal.App.4th 1235, 1237-1240 [ 57 Cal.Rptr.2d 246 ]. The only difference between those cases and this is that here the plea contemplated a range of possible sentences and in those three cases there was an agreed-upon term. The Attorney General argues that the result in the three cited cases governs here, as the appellant “received considerable benefit from the bargain.” Indeed he did: Two counts were stricken as was a prison-term prior. (Pen. Code, § 667.5.)

My colleagues, however, find the Attorney General’s “focus on the benefit of the bargain unhelpful,” and go on to say that there is always a bargain in a plea agreement and the real questions are “[w]hat was the bargain” and did it preclude a striking of a prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ] (Romero). (Maj.…

We hold in this case charged under the "Three Strikes" law (Pen. Code, § 1170.12; unspecified section references are to that code) that the defendant is entitled to a remand under People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 [ 53 Cal. Rptr.2d 789 , 917 P.2d 628 ] ( Romero ), where the record of his pre- Romero motion to strike shows the court felt it had no discretion and where the motion appears to have been consistent with his previously negotiated plea.

A second amended complaint charged Wayne Smith with three counts of selling (Health & Saf. Code, § 11352, subd. (a)) and one count of possessing ( id., § 11350, subd. (a)) cocaine base, each count carrying allegations of presumptive probation ineligibility (§ 1203.073, subd. (b)(6)), a prior strike (§ 1170.12, subds. (a)-(c)) consisting of a 1994 attempted robbery with weapon use (§§ 664/211, 12022, subd. (b)), and a prison term served for the prior (§ 667.5, subd. (b)).

In a plea bargain, Smith pled guilty to counts 1 and 4 (one sale and the possession) and admitted the strike and probation-ineligibility allegations, in return for dismissal of the other counts with a Harvey waiver ( People…