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Filed 1/3/24 P. v. Turner CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or
or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v. ANTOINE TURNER,
Defendant and Appellant. A16 8230

( Lake County Super. Ct.
No. CR963186 )

MEMORANDUM OPINION 1

Antoine Turner ple aded no contest on two felony counts and admitted a
prior strike allegation , in exchange for dismissal of other counts and a

sentence of “not more than” four years in prison

. The trial court

subsequently refused to consider Turner’s motion to dismiss his prior strike

conviction pursuant to People v. Superior Court ( Romero ) (1996) 13 Cal.4th

497 because the motion was no t explicitly provided for in his pl ea agreement

. Turner now argues, and the People concede, that the court should have at

least considered the motion

. We agree.

1 We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.2

Antoine Turner was charged by information with 11 offenses, including

possession of methamphetamine for sale (Health & Saf. Code, § 11378 ) and

unlawful possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)).

The information further alleged that Tur ner had suffered a prior strike

conviction ( i d. §§ 667, subds. (b)

– (j), 1170.12).

Turner pleaded no contest to these two counts and admitted the prior

strike allegation

. I n return, the People dismissed the remaining charges and

allegations

, and would re commend to the court a sentence of “not more than”

four years in prison. The plea agreement did not contain a minimum prison

term.

At the sentencing hearing, the parties and the trial court confirmed

that the four

- year prison term was only a “lid

, ” s o Turner could “argue for

less.” Turner then requested that the court dismiss the prior strike

conviction pursuant to Romero . The court asked: “But was a part of a plea

agreement that you can make a Romero motion ?” Counsel clarified that the

agreement di d not “expressly” include a Romero motion. The prosecutor

stated: “I doubt we would specifically agree or disagree with it.” The court

responded: “ If the agreement says you can make a Romero motion, then of

course you can. Otherwise, you can’t.” T he trial court declined to consider

the motion and sentenced Turner to four years in prison.

“A negotiated plea agreement is a form of contract, and it is interpreted

according to general contract principles. ” ( People v. Shelton (2006) 37 Cal.4th

759, 767, citing People v. Toscano (2004) 124 Cal.App.4th 340, 344

. ) P lea

agreements are thus “ interpreted according to the general rule ‘that

ambiguities are construed in favor of the defendant.’ ” ( Toscano

, at p. 345 .)

T he relevant q uestions are : “What was the bargain, and did it preclude a

striking under Romero ?” ( People v. Smith (1997) 59 Cal.App.4th 46, 51.)3

The “bargain” here was that Turner ple aded no contest to some counts

in exchange for dismissal of other counts and a senten ce of “not more than”

four years in prison

. ( People v. Smith

, supra , 59 Cal.App.4th at p. 51.)

N othing about th e bargain barred Turner from making a Romero motion : the

agreement did not contain a minimum prison term (such that the court would

have been disallowed from granting the motion) or otherwise prohibit such a

motion

. Nor did Turner waive his right to pursue the motion. ( See People v.

Vargas (1993) 13 Cal .App.4th 1653, 1662 [ “ ‘[ T ] he valid waiver of a right

presupposes an actual and demonstrable knowledge of the very right being

waived ’ ” ]

. ) The trial court should have considered Turner’s Romero motion

on its merits

. DISPOSITION

The judgment is conditionally reversed

, and the cause is remanded to

the trial court with directions to hear and determine Turner’s Romero motion

to dismiss his prior strike conviction. If the court grants the motion, Turner

shall be resentenced. If the court denies the motion, the judgment shall be

reinstated and deemed final. In all other respects, the judgment is affirmed.4 _________________________ Markman , J.*

We concur:

_________________________ Stewart , P.J.

_________________________ Richman , J.

People v. Turner (A1 68230 )

* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.