In Re Knight

Opinion

WHITE, P. J.

This petition challenges the trial court’s imposition of an aggravated term based in part upon prior convictions which were dismissed as part of a plea bargain. We conclude, based upon

People

v.

Harvey

(1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396], that an implicit term in the plea bargain was that the priors would not be used to aggravate petitioner’s term. Therefore, we grant the relief requested.

On April 5, 1978, petitioner was charged by information in the Monterey County Superior Court with robbery and two firearm/weapon violations. Four prior felony convictions were alleged. Before trial began, petitioner admitted two of the priors and the other two were dismissed on motion of the district attorney. The two dismissed priors were a 1957 Mississippi grand theft conviction and a 1961 federal district court of Arizona conviction for auto theft.

[604]

After trial and conviction, petitioner was sentenced to a total of ten years consisting of (1) the aggravated term of four years for the robbery, (2) two years for use of a firearm during the robbery, (3) three years for one of the admitted priors, and one year for the other admitted prior. The court gave as a reason for imposing the aggravated term of four years for the robbery: “based upon his beginning felony convictions in 1957 and ‘61.”

Petitioner’s conviction was affirmed on appeal to this division. Subsequently, the Supreme Court decided

People

v.

Harvey, supra,

25 Cal. 3d 754, and petitioner filed a petition for writ of habeas corpus in this court. Because the trial court record was ambiguous on the question of whether the two priors were dismissed as a result of a plea bargain or for some other reason, we issued an order to show cause returnable in the trial court. Our intention was that the trial court determine whether there was a bargain below and, if so, grant the relief requested. Our order to show cause stated, in part: “if petitioner’s assertion that the 1957 and 1961 priors were dismissed as the result of a plea bargain is correct, those priors should not have been considered in determining whether to aggravate the term.”