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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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.

 A168230

 (Lake County Super. Ct.

 No. CR963186)

MEMORANDUM OPINION1

Antoine Turner pleaded 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 not explicitly provided for in his plea 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.
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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 Turner had suffered a prior strike 

conviction (id. §§ 667, subds. (b)–(j), 1170.12).

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

strike allegation. In return, the People dismissed the remaining charges and 

allegations, and would recommend 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,” so 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 did 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.” The 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.) Plea 

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

ambiguities are construed in favor of the defendant.’ ” (Toscano, at p. 345.) 

The relevant questions are: “What was the bargain, and did it preclude a 

striking under Romero?” (People v. Smith (1997) 59 Cal.App.4th 46, 51.)
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The “bargain” here was that Turner pleaded no contest to some counts

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

four years in prison. (People v. Smith, supra, 59 Cal.App.4th at p. 51.) 

Nothing about the 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.
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_________________________

Markman, J.*

We concur:

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Stewart, P.J.

_________________________

Richman, J.

People v. Turner (A168230)

* Judge of the Alameda Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.