1

Filed 5/19/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ALLEN RAY SILVA,

Defendant and Appellant.

C078233

(Super. Ct. No. 

MCYKCRBF140270)

APPEAL from a judgment of the Superior Court of Siskiyou County, Laura J. 

Masunaga, Judge. Reversed with directions.

Barbara Coffman, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri, 

Supervising Deputy Attorney General, George M. Hendrickson, Deputy Attorney 

General, for Plaintiff and Respondent.
2

Defendant Allen Ray Silva pleaded no contest to a number of felony offenses and 

one misdemeanor petty theft charged in connection with two separate events. The parties 

agreed to a maximum sentence of six years eight months. The trial court sentenced 

defendant to the negotiated term of six years eight months on the felonies, but added a 

consecutive sentence of 30 days on the misdemeanor petty theft, which the trial court 

subtracted from defendant’s presentence custody credits. Defendant contends the trial 

court did not properly advise him he could withdraw his plea if the court was inclined to 

impose a higher sentence than the agreed maximum and contends the error requires 

specific performance of the plea.

We conclude that neither the trial court nor the Judicial Council plea form used in 

this case properly advised defendant of his right to withdraw his plea as required by Penal 

Code section 1192.5.

1

 However, specific performance is not the appropriate remedy in 

this case. We reverse and remand the matter for further proceedings described more fully 

post.

FACTUAL AND PROCEDURAL BACKGROUND2

In February 2014, a utility company sent an employee to defendant’s home to shut 

off the power. When the employee explained to defendant why he was at the property,

defendant responded by ordering the employee off the property. Defendant grabbed a 

large stick, held it over his head, and advanced toward the employee. He then put the 

stick down, spit at the employee, and continued to yell at him, “ ‘get the fuck out of 

here,’ ” “ ‘you’re not gonna cut my power,’ ” and “ ‘get the fuck off my property.’ ” The 

employee thought he was going to be struck so he left and called law enforcement. Law 

enforcement arrested defendant.

 

1

 Undesignated statutory references are to the Penal Code in effect at the time of the 

charged offenses.

2

 The facts underlying the charged offenses are from the probation report.
3

Defendant failed to appear for his arraignment in July 2014, and a bench warrant 

was issued.

In July 2014, Walmart personnel stopped defendant and Stephanie Mendoza, 

suspecting them of theft. They asked defendant and Mendoza to step into the store 

security office and Mendoza complied, but defendant became hostile. Thereafter, law 

enforcement was contacted. During the incident, defendant pulled an eight-inch knife 

from his pocket. He brandished the knife at the Walmart personnel and said that he 

“ ‘was not going any fucking where.’ ” Defendant then invited the Walmart personnel to 

step outside and stated, “ ‘I will take both of you out.’ ” The Walmart personnel felt 

threatened and were afraid of defendant, so they told him to leave, which he did. An 

arrest warrant was issued and defendant was arrested on July 27, 2014.

A consolidated information charged defendant with making criminal threats 

against the Walmart personnel (§ 422, subd. (a) (counts 1 & 2)), commercial burglary 

(§ 459 (count 3)), receiving stolen property (§ 496, subd. (a) (count 4)), petty theft with a 

prior as a felony (§ 666, subd. (b) (count 5)), carrying a dirk or dagger (§ 21310 (count 

6)), failure to appear while on bail (§ 1320.5 (count 7)), assault with a deadly weapon 

against the utility company employee (§ 245, subd. (a)(1) (count 8)), and exhibiting a 

deadly weapon (§ 417, subd. (a)(1) (count 9)). As to the assault, the information further 

alleged it was a serious felony (§ 1192.7, subd. (c)(23)). The information also alleged as 

to counts 1 through 8 that defendant had a strike conviction (§§ 1170.12, subds. (a)-(d), 

667, subds. (b)-(i)), as to counts 1 through 5 and 8, that defendant had a prior serious 

felony conviction (§ 667, subd. (a)(1)), and as to counts 1 through 7, that defendant 

committed the offenses while released on bail (§ 12022.1).
4

As part of a plea agreement, defendant pleaded no contest to: count 1 -- criminal 

threats3; count 8 -- assault with a deadly weapon; count 7 -- felony failure to appear; and 

count 5 -- petty theft with a prior, which was reduced to a misdemeanor as part of the 

plea agreement. He also admitted the strike allegation as to counts 1, 7, and 8, and also 

the allegation that he committed the assault on the utility company employee while 

released on bail (§ 12022.1). The trial court dismissed the remaining counts and 

allegations with a Harvey waiver for sentencing.

4

 The parties agreed to a “lid on 

immediate state prison of six years and eight months at 80 percent.”

5

Just before the trial court took defendant’s plea, the prosecution offered the court 

an example of how the negotiated lid could be calculated, which did not include any 

sentence on the misdemeanor, but did include a dismissal of the strike allegation as to 

 

3

 As part of the plea agreement, count 1 was amended to name both victims from the 

incident at Walmart within that single count.

4

 People v. Harvey (1979) 25 Cal.3d 754.

5

 In addition to the oral representation of counsel made to the court just prior to 

defendant’s plea concerning the terms of the agreement, the terms of the negotiated 

resolution are set forth on the written plea form signed by defendant, defense counsel, 

and the prosecutor. The chart in paragraph 1 of the plea form shows the counts to which 

defendant was going to plead, the “Total Maximum Time” for each count, including “1 

y” for the misdemeanor petty theft and the “Aggregate Maximum Time of Imprisonment” 

for all of the counts of “12 y 8 mo + 1 yr C/J.” Next to paragraph 2, which is entitled 

“Plea Agreement,” the words “2 options available” are handwritten with arrows pointing 

to paragraphs 2.a. and 2.b. The state prison box is checked in paragraph 2.a. and 

paragraph 2.a.(1) reads: “6 years and 8 months lid if not granted probation.” Paragraph 

2.b. reads: “Probation for 3-5 years under conditions to be set by the court, including: 

[¶] up to 365 days in the county jail.” Further, defendant acknowledged on the form that 

if he was granted probation and he violated any condition of probation, he could be 

sentenced to state prison for up to the aggregate maximum time set forth in the chart in 

paragraph 1. Under paragraph 2.i., titled “Other Terms,” the form reads: “Lid of 6 y 8 

mos if court, as initial sentence, imposes state prison. If probation is granted the lid will 

not apply. Parties agree Romero motion for prior strike must be granted as to some 

counts to achieve a 6 y 8 mo term.”
5

count 7, failure to appear, and striking the punishment on the section 12022.1 

enhancement. The prosecutor told the court it had discretion to achieve the sentencing lid 

by calculating the sentence in other ways and added, “It’s not going to be a challenging 

lid in the sense of impossible.”

In taking defendant’s plea, the trial court did not orally advise defendant under 

section 1192.5 of his right to withdraw his plea if the court withdrew its approval of the 

plea.6 Defendant executed a plea form published by the Judicial Council.7 Paragraph

6.e. of the form is titled “Discovery of New Facts” and reads: “I understand that the plea 

agreement in item 2 (on pages 1 and 2) is based on the facts before the court, and if the 

court discovers new facts, such as an additional prior felony conviction not listed on this 

form, the court may refuse to accept the plea agreement. If the court discovers new facts 

and refuses to accept this plea agreement, I understand that I will be allowed to withdraw 

my plea.” (Italics added.) Defendant initialed the box next to paragraph 6.e., 

acknowledging that he understood.

 

6

 Section 1192.5 provides in pertinent part: “Where the plea is accepted by the 

prosecuting attorney in open court and is approved by the court, the defendant, except as 

otherwise provided in this section, cannot be sentenced on the plea to a punishment more 

severe than that specified in the plea and the court may not proceed as to the plea other 

than as specified in the plea. [¶] If the court approves of the plea, it shall inform the 

defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at 

the time set for the hearing on the application for probation or pronouncement of 

judgment, withdraw its approval in the light of further consideration of the matter, and (3) 

in that case, the defendant shall be permitted to withdraw his or her plea if he or she 

desires to do so. The court shall also cause an inquiry to be made of the defendant to 

satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis 

for the plea. [¶] If the plea is not accepted by the prosecuting attorney and approved by 

the court, the plea shall be deemed withdrawn and the defendant may then enter the plea 

or pleas as would otherwise have been available.”

7

 The plea form is CR-101, revised January 1, 2013, and is approved by the Judicial 

Council for optional use.
6

Subsequently, defendant filed a Romero8 motion, requesting that the court dismiss 

defendant’s strike allegation. The prosecution filed an opposition to defendant’s motion 

wherein it suggested a sentencing calculation on the felonies and enhancements to 

achieve the six-year eight-month lid without dismissing the strike, but again did not 

mention the misdemeanor. The Romero motion was denied.

Prior to sentencing, defendant filed a motion to withdraw his plea for good cause, 

on the ground that shortly before entering the plea, he had begun taking two drugs for 

mental health issues and those drugs affected his thinking, such that he did not 

understand the potential state prison consequences of the plea. The trial court denied the 

motion.

While the motion to withdraw the plea was pending, the prosecution filed a brief 

regarding sentencing on count 5, misdemeanor petty theft with a prior. For the first time, 

the prosecution contended the trial court was required to sentence defendant on that count 

consecutively under section 667, subdivision (c)(6) and (7),

9 and People v. Newsome 

(1997) 57 Cal.App.4th 902. In Newsome, this court said consecutive sentences are 

required for any felony or misdemeanor conviction not committed on the same occasion

and not arising from the same set of operative facts as the current felony convictions 

 

8

 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

9

 Section 667 provides in pertinent part: “(c) Notwithstanding any other law, if a 

defendant has been convicted of a felony and it has been pled and proved that the 

defendant has one or more prior serious and/or violent felony convictions as defined in 

subdivision (d), the court shall adhere to each of the following: [¶] . . . [¶] (6) If there is 

a current conviction for more than one felony count not committed on the same occasion, 

and not arising from the same set of operative facts, the court shall sentence the 

defendant consecutively on each count pursuant to subdivision (e). [¶] (7) If there is a 

current conviction for more than one serious or violent felony as described in paragraph 

(6), the court shall impose the sentence for each conviction consecutive to the sentence 

for any other conviction for which the defendant may be consecutively sentenced in the 

manner prescribed by law.” (Italics added.)
7

when the current felonies include more than one serious/violent felony offense. 

(Newsome, at pp. 910-911.) Since defendant admitted two serious felonies here, the

prosecution belatedly contended that the trial court was required to sentence him 

consecutively on the misdemeanor unless it found the misdemeanor was committed on 

the same occasion or arising from the same facts as count 1, criminal threats involving 

the Walmart personnel.

At the sentencing hearing, the prosecution argued that because there was a lid on 

the felony, and no discussion about how much credit defendant would get against that 

sentence, and the misdemeanor had to be sentenced consecutively, the trial court had to 

allocate some of defendant’s presentence credits to the misdemeanor. Defendant 

responded that count 1, criminal threats, and count 5, misdemeanor petty theft with a 

prior at Walmart, were committed on the same occasion and arose from the same 

operative facts and therefore section 667, subdivision (c)(6) and (7), did not require 

consecutive sentences. Defense counsel then stated, “If the Court is inclined to somehow 

find that this was on a different occasion, I think we run into the problem that -- the 

agreement was that [defendant] received an aggregate sentence of 6 years, 8 months as a 

lid. And so to oppose [sic] anything that significantly goes beyond that would violate 

that term and we would be back into the situation with a motion to withdraw plea. So 

with that I’ll submit.” The trial court indicated that whether the misdemeanor petty theft 

from Walmart was part of the same operative facts from the criminal threats on the store

personnel was “a close issue” and that, “It’s sort of in between there, between ones that 

very clearly are not and ones that are.” Ultimately, the trial court found that count 1 and 

count 5 were not committed on the same occasion and did not arise from the same 

operative facts.

10 Based on that finding, the court said it would impose a consecutive 

 

10

 Defendant does not challenge the trial court’s finding in this appeal.
8

sentence of 30 days on the misdemeanor. After the prosecutor confirmed the sentence 

was within the trial court’s discretion in light of the requirement for consecutive 

sentencing, the trial court asked defense counsel if he had “[a]nything else.” Counsel 

said he did not.

Following the recommendation of the prosecution contained in the prosecutor’s 

Romero opposition, the trial court sentenced defendant to a total of six years eight months 

on the felonies, calculated as follows: on count 8, assault with a deadly weapon, four 

years (the low term of two years, doubled); on count 1, criminal threats, 16 months (onethird the midterm, eight months doubled); on count 7, failure to appear, 16 months, (onethird the midterm, eight months doubled).

11

 Accepting the prosecutor’s argument that 

the trial court had to impose a consecutive sentence on the misdemeanor and deduct that 

sentence from defendant’s presentence credits, the trial court sentenced defendant to a 

consecutive 30 days on count 5 and awarded defendant 332 days of presentence custody 

credits, 30 of which were credited towards the misdemeanor petty theft jail sentence.

DISCUSSION

Defendant contends the trial court erred by failing to give the admonishment 

required by section 1192.5 and failing to provide him the opportunity to withdraw his 

plea when it imposed a sentence 30 days more than the agreed upon sentencing lid.

12

 He 

further contends the remedy for this error is specific performance of the plea. 

Alternatively, he contends if we do not remand for specific performance of the plea, he 

 

11

 The trial court struck the punishment on the section 12022.1 allegation as 

recommended by the prosecution.

12

 Defendant does not challenge the fact that the trial court denied dismissal of the strike 

conviction, even though the dismissal was listed as a term of the plea agreement on the 

plea form signed by defendant, defense counsel and the prosecutor. (See fn. 5, ante.) 

Consequently, we do not address the propriety of making the dismissal of a strike part of 

a plea bargain or the failure to adhere to that term in the plea agreement.
9

must be allowed to withdraw his plea. The People contend the Judicial Council plea form 

advised defendant of his rights under section 1192.5 and defense counsel did as well. 

Consequently, defendant’s failure to object to the sentence and move to withdraw his plea 

forfeited his claim on appeal. Alternatively, the People argue the 30-day sentence on 

count 5 did not violate the plea agreement because the agreement purportedly did not 

include the misdemeanor sentence. We conclude that defendant was not properly advised 

of his section 1192.5 rights and the sentence imposed by the trial court violated the plea 

agreement.

“When a guilty 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. The punishment may not significantly 

exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 

1024 (Walker), overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 

183 (Villalobos).) This is a rule of constitutional dimension, implicating due process 

concerns. (Villalobos, at p. 182; Walker, at p. 1024.) Due process requires that both

defendant and the prosecution, abide by the terms of the plea agreement and that the 

punishment imposed not significantly exceed that which the parties agreed upon.13 

(Villalobos, at p. 182.)

 

13

 The People appropriately do not contend that the additional 30-day sentence 

effectuated by reducing defendant’s presentence credit is not a significant variance from 

the agreed upon sentence. To warrant relief, the deviation from the negotiated plea must 

be “ ‘significant’ in the context of the plea bargain as a whole.” (Walker, supra, 54 Cal.3d 

at p. 1024.) And the punishment must not be “more severe” than whatever the defendant 

agreed to. (§ 1192.5; Walker, at p. 1024; People v. Kim (2011) 193 Cal.App.4th 1355, 

1359 (Kim); People v. Brown (2007) 147 Cal.App.4th 1213, 1221.) In Walker, the court 

gave an example of an insignificant variance. It suggested that adding a standard 

condition of probation not part of the express negotiations would not be a significant 

variance. (Walker, at p. 1024.) In contrast, a loss of liberty of an additional 30 days by 

deducting time already served can hardly be considered insignificant to the person who 
10

However, there is an out for the trial court. The court may withdraw its initial 

approval of the plea at the time of sentencing and decline to impose the agreed upon 

sentence, “so long as the parties can be restored to their original positions.” (Kim, supra,

193 Cal.App.4th at p. 1360; § 1192.5.) If the court withdraws its initial approval, it must 

inform the defendant that he or she has the right to withdraw the plea and allow the 

defendant to do so; it cannot merely alter the terms of the agreement by imposing 

punishment significantly greater than that originally bargained for. (§ 1192.5; Walker, 

supra, 54 Cal.3d at p. 1026.) Put another way, the trial court may not “unilaterally 

modify[] the terms of the bargain without affording . . . an opportunity to the aggrieved 

party to rescind the plea agreement and resume proceedings where they left off.” (Kim, 

at p. 1361.) This rule is not new. It has long been the rule that if the trial court 

disapproves of the negotiated disposition and seeks to modify it, the court must expressly 

tell the defendant he or she can withdraw the plea if the defendant is unwilling to accept 

the modified terms. (People v. Johnson (1974) 10 Cal.3d 868, 872 & fn. 3 (Johnson).) 

“The required explanation and defendant’s right to have his plea withdrawn apply both at 

the time of entering the plea and at sentencing.” (People v. Jackson (1980) 

103 Cal.App.3d 635, 638 (Jackson).)

These holdings are based on section 1192.5 (see fn. 6, ante), which provides that 

when a plea bargain entered into by the parties is approved by the court, the defendant 

“cannot be sentenced on the plea to a punishment more severe than that specified in the 

plea and the court may not proceed as to the plea other than as specified in the plea.”

(Italics added.) Section 1192.5 further provides that the court “shall inform the defendant 

prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time 

set for the hearing on the application for probation or pronouncement of judgment, 

 

must serve that time. The variance here does not fall into the same category as a standard 

condition of probation.
11

withdraw its approval in the light of further consideration of the matter, and (3) in that 

case, the defendant shall be permitted to withdraw his or her plea if he or she desires to 

do so.” (§ 1192.5, italics added.) Implicit in this statutory language “is the premise that 

the court, upon sentencing, has broad discretion to withdraw its prior approval of a 

negotiated plea.” (Johnson, supra, 10 Cal.3d at p. 873.) “ ‘Such withdrawal is permitted, 

for example, in those instances where the court becomes more fully informed about the 

case [citation], or where, after further consideration, the court concludes that the bargain 

is not in the best interests of society.’ ” (People v. Simmons (2015) 233 Cal.App.4th 

1458, 1467, italics added [trial court’s post-plea decision to reject package plea bargain 

involving multiple defendants and proceed to trial affirmed].)

Here, at the time of the plea, the trial court did not orally advise defendant that its 

approval of the plea agreement was not binding and if, after further consideration, it 

could not accept the plea, defendant had the right to withdraw it. The People contend that 

paragraph 6.e. of the Judicial Council plea form executed by the parties provided the 

requisite advisements. We disagree. In the paragraph titled, “Discovery of New Facts,” 

the plea form advised defendant that if the court discovered new facts, it could refuse to 

accept the plea, and in that single situation defendant could withdraw his plea. The plea 

form gives the discovery of a previously unknown prior conviction as an example of a 

new fact. The discovery of new facts is one circumstance under which a trial court could 

reject a negotiated agreement, but section 1192.5 is not limited to that one circumstance. 

Thus, the plea form does not adequately convey the admonishments in section 1192.5. 

The form does not inform defendants that the court’s approval of the negotiated 

disposition is not binding and that the court could withdraw its approval simply upon

“further consideration” as stated in section 1192.5. (See fn. 6, ante.) Here the court did 

not refuse to accept the plea based on the discovery of new facts. Rather, the prosecution 

miscalculated how the sentence could be calculated to arrive at the sentencing lid it 

negotiated with defendant.
12

The People contend that it is inconceivable defendant would have believed he 

could not withdraw his plea based on a distinction between new facts and a new point of 

law and in any event, because of defense counsel’s comments, the record shows 

defendant knew he could withdraw his plea. Thus, according to the People, defendant 

forfeited any claim under section 1192.5 by failing to move to withdraw his plea after the 

trial court indicated it would impose the additional 30 days. In support of this contention, 

the People rely on Walker, supra, 54 Cal.3d 1013 and Villalobos, supra, 54 Cal.4th 177.

In Walker, our high court held, “Whether or not a defendant waives an objection to 

punishment exceeding the terms of the bargain by failure to raise the point in some 

fashion at sentencing depends upon whether the trial court followed the requirements of 

section 1192.5.” (Walker, supra, 54 Cal.3d at p. 1024, italics added; accord, Villalobos,

supra, 54 Cal.4th at p. 182; People v. Cruz (2013) 219 Cal.App.4th 61, 65, fn. 3.) The 

Walker court went on to say, “Absent compliance with the section 1192.5 procedure, the 

defendant’s constitutional right to the benefit of his bargain is not waived by a mere 

failure to object at sentencing. ‘Of course, there can be no waiver of a constitutional right 

absent “an intentional relinquishment or abandonment of a known right or privilege.” 

[Citation.] No less should a court presume from mere silence that defendant is waiving 

implementation of the consideration that induced him to waive his constitutional 

rights.’ ” (Id. at p. 1025.) Thus, as this court has previously noted, when the trial court 

fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing 

does not waive his claim on appeal. (Cruz, at p. 65, fn. 3, citing Walker, at pp. 1024-

1026, 1030.)

Apparently recognizing that defense counsel did “raise the point in some fashion,” 

(Walker, supra, 54 Cal.3d at p. 1024, italics added), the People advance the novel 

argument that Walker “did not hold that an objection to punishment without a request to 

withdraw the plea was sufficient to preserve the issue.” From this, the language of 

section 1192.5 and the notion defendant knew of his right to withdraw the plea, the 
13

People maintain that a request to withdraw the plea was required to preserve the claim.

The People’s argument is based on two false premises about Walker. First, the Walker

court said whether a defendant has waived the plea bargain violation depends on 

“whether the trial court followed the requirements of section 1192.5” (Walker, at

p. 1024), not whether defense counsel’s statements somehow show defendant personally 

knew he could withdraw his plea. Second, contrary to the People’s argument, the Walker

court expressly stated a motion to withdraw the plea is not required where there has been 

no compliance with section 1192.5. Specifically, the court said, “We have held that 

absent a section 1192.5 admonition, a defendant’s ‘failure affirmatively to request a 

change of plea should not be deemed a waiver of his right to do so. Since he was never 

advised of his rights under section 1192.5, he should not be held to have waived them.’ ” 

(Walker, at p. 1025, citing Johnson, supra, 10 Cal.3d at p. 872.) The People appear to 

advance the idea that when defense counsel, not defendant, demonstrated an 

understanding that the plea may be withdrawn, both an objection and a motion to 

withdraw is required. But such a rule would be inconsistent with the Walker court’s 

observation that the waiver of the constitutional right to the benefit of the original bargain 

must reflect “ ‘ “an intentional relinquishment or abandonment” ’ ” of that right by the 

defendant. (Walker, at p. 1024.) In other words, when there has been no prior 1192.5 

admonition, a defendant must personally waive his or her section 1192.5 right to 

withdraw the plea.

The People also contend that because defense counsel acknowledged on the plea 

form that he had “ ‘explained each of the items in the form, including the defendant’s 

constitutional and statutory rights, to the defendant,’ ” that acknowledgment necessarily 

shows that defense counsel informed defendant of the right to withdraw the plea under 

section 1192.5 if the bargain is rejected by the court. But section 1192.5 requires that the 

court, not counsel, give the admonishment and that did not happen here. We will not 

assume defendant knew he had a right to withdraw his plea in the absence of a section 
14

1192.5 admonition by the trial court.14 (Walker, supra, 54 Cal.3d at p. 1026.) The court

must expressly inform defendant of his right to withdraw his or her plea. (Ibid.; Johnson, 

supra,10 Cal.3d at p. 872; Kim, supra, 193 Cal.App.4th at p. 1361; Jackson, supra, 103 

Cal.App.3d at p. 638.)

The People also contend that any motion to withdraw the plea that could be read 

into defense counsel’s comments to the trial court was impliedly rejected by the court on 

the ground that the sentence did not violate the plea. According to the People, the reason 

the plea was not violated is because the sentencing lid to which the parties referred in 

their bargain related only to the felonies and furthermore, the sentence on the 

misdemeanor had to be consecutive. The People assert that defendant has not presented 

“competent evidence that he believed the ‘lid’ would apply to county jail as well as state 

prison.” But the plea form signed by defendant, defense counsel and the prosecutor 

clearly indicated that the sentence on the misdemeanor was within the scope of the 

sentencing lid promise.

15

“From a defendant’s point of view, the purpose of a sentence lid is to protect the 

defendant from a greater sentence. Thus, a sentence lid provision in a plea agreement 

 

14

 The section 1192.5 admonitions can be oral or they can be provided in a written plea 

form provided by the court in which defendant acknowledges his receipt and 

understanding of the admonitions. As we have pointed out, the 2013 form approved by 

the Judicial Council for optional use does not contain the admonitions set forth in section 

1192.5. It is recommended that the Judicial Council consider rewording the 

admonishment in paragraph 6.e. of the plea form to conform to section 1192.5.

15

 The executed plea form signed by defendant, defense counsel and the prosecution sets 

forth two sentencing options: (1) a sentencing lid of 6 years 8 months or (2) three to five 

years’ probation with conditions of probation including 365 days in county jail. Even 

though the sentence for the misdemeanor was listed in the sentences showing the 

maximum sentence to which defendant was exposed, nothing on the form suggests that 

the sentence for the misdemeanor was not included in either of the two options set forth 

in the agreement or that it would be treated separately. (See fn. 5, ante.)
15

necessarily implies the defendant’s understanding and belief that in its absence the trial 

court might lawfully have imposed a greater sentence. . . . [¶] From a prosecutor’s point 

of view, a sentence lid necessarily implies an understanding and belief that the sentence 

lid is itself a sentence that the trial court may lawfully impose. If the prosecutor 

understood or believed that the trial court lacked authority to impose the lid sentence, 

there would be no utility or benefit to specifying that particular length of time as the 

maximum sentence. [¶] Thus, the specification of a maximum sentence or lid in a plea 

agreement normally implies a mutual understanding of the defendant and the prosecutor 

that the specified maximum term is one that the trial court may lawfully impose and also 

a mutual understanding that, absent the agreement for the lid, the trial court might 

lawfully impose an even longer term.” (People v. Shelton (2006) 37 Cal.4th 759, 768.)

Here, the parties’ agreed that the maximum period of time to which defendant 

could be sentenced was six years eight months and according to the plea form, the

misdemeanor sentence was included in this sentencing lid. The plea discussions make 

clear the parties did not account for the fact that the trial court was required to impose a 

consecutive sentence on the misdemeanor. The trial court imposed the six-year eightmonth sentence on the felony counts and then imposed an additional 30-day sentence on 

the misdemeanor, which it deducted from defendant’s presentence credit. Defendant’s 

actual punishment exceeds the plea agreement lid. The trial court was not authorized to 

reform the plea agreement and unilaterally impose a greater punishment than the plea 

agreement contemplated. Rather, when presented with the information that it had to 

sentence the misdemeanor consecutively, the trial court’s options were to impose an 

authorized sentence less than the lid or refuse to accept the plea and give defendant the 

opportunity to withdraw the plea.

This brings us to the matter of remedy. We do not agree with defendant that 

specific performance of the plea agreement is the correct remedy. Specific performance 

would require modification of the sentence to bring it below the sentencing lid. But 
16

specific performance may only be ordered “ ‘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.’ ” (Kim, supra, 193 Cal.App.4th at 

p. 1362, quoting People v. Mancheno (1982) 32 Cal.3d 855, 861.) Here, the trial court 

has already exercised its discretion not to dismiss the strike allegation, and we will not 

modify the sentence to bring it under the agreed upon lid under such circumstances. 

(Kim, at p. 1362 [refusing to order specific performance when the trial court exercised its 

discretion to impose additional terms].) The sentence the trial court ultimately imposed 

consisted of a low term doubled and two mandatory consecutive terms doubled, leaving

no room under the lid for a mandatory consecutive misdemeanor sentence. 

Consequently, given the state of the pleadings, specific performance is barred because a

legally authorized sentence cannot be reached under the circumstances. Accordingly, for 

this additional reason, specific performance is not the appropriate remedy. (Id. at 

pp. 1362-1363 [specific performance is barred when the sentence to which the parties 

agreed, based on the present state of the pleadings, violates the sentencing laws].)

Similar to the situation in Kim, the present appeal would have been obviated had 

the prosecutor ensured that the agreed upon sentence was authorized by law or

conformed the pleadings to the agreed upon sentence so that the latter would be 

authorized by law, and “[t]he prosecutor compounded these omissions by affirmatively 

urging the court to impose greater punishment than defendant agreed to.” (Kim, supra, 

193 Cal.App.4th at p. 1365.) But the problem the prosecution created can be 

ameliorated. On remand, the prosecution can move to amend the information to dismiss 

the misdemeanor petty theft with a prior conviction which resulted in the additional 30 

day sentence. (See ibid. [appellate court suggested that a plea withdrawal could be 

avoided by the prosecution amending the indictment to omit enhancement allegations 

triggering the additional required sentence].)
17

Thus, on remand, if the prosecution dismisses count 5, misdemeanor petty theft 

with a prior, and the trial court once again approves of the agreed upon sentencing lid, the 

defendant is not entitled to withdraw his plea. Or if the trial court concludes that in the 

proper exercise of its discretion it can impose a legally authorized sentence that does not 

exceed the sentencing lid (e.g., by dismissing the strike as to one or more counts), it may 

vacate the current sentence and resentence defendant to that new sentence. In that 

circumstance, defendant is likewise not entitled to withdraw his plea. But if the 

misdemeanor is not dismissed and the trial court, in the exercise of its discretion does not 

approve of a sentence that is no longer than the maximum sentencing lid, then the court

must expressly offer defendant the opportunity to withdraw his plea. If defendant 

declines the opportunity to withdraw his plea, the court may impose the same sentences it 

previously imposed.

DISPOSITION

The judgment is reversed and the cause is remanded to the trial court for further 

proceedings.

 MURRAY , J.

We concur:

 ROBIE , Acting P. J.

 MAURO , J.