People v. Giberson CA3

Filed 2/2/15 P. v. Giberson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C075492

Plaintiff and Respondent, (Super. Ct. Nos. CRF102456, CRF114545) v.

DEAN LEE GIBERSON,

Defendant and Appellant.

Defendant Dean Lee Giberson appeals from a judgment of the Yolo County Superior Court sentencing him to four years eight months in state prison. On appeal he contends the trial court erred when it found that it lacked authority to grant his request, made pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero), to strike a prior serious felony conviction he had admitted because the admission was part of a negotiated plea. As the People acknowledge, and we agree, the trial court did so err. Accordingly, we shall remand the matter to the trial court for a new Romero hearing.

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FACTS AND PROCEEDINGS

On June 2, 2010, pursuant to a plea bargain, defendant Dean Lee Giberson pleaded no contest in amended criminal complaint CRF10-2456 (the 2010 case) to count 1, transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and admitted a prior strike conviction for making criminal threats (Pen. Code, § 422). In exchange for defendant’s plea and admission, the court dismissed count 2, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), count 3, possession of drug paraphernalia (Health & Saf. Code, § 11364), count 4, driving without a valid driver’s license (Veh. Code, § 12500, subd. (a)), and an allegation that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The agreement, as set forth in the plea form, stated that “the matter of probation and sentence is to be determined solely by the Court.” The trial court suspended imposition of judgment and placed defendant on Proposition 36 probation for three years. On October 13, 2011, defendant was charged in case No. CRF11-4545 (the 2011 case) with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) with allegations of a prior strike conviction and service of a prior prison term, the same allegations that were charged in the 2010 case. On November 4, 2011, defendant pleaded no contest to the drug charge and admitted both allegations. On November 18, 2011, the court suspended imposition of judgment and placed defendant on Proposition 36 probation. Again, the plea form specified that “the matter of probation and sentence is to be determined solely by the Court.” The court also revoked, but reinstated on the same terms and conditions, defendant’s probation in the 2010 case. Following several findings of defendant’s being in violation of his Proposition 36 probation in both cases, but reinstating him to probation, the trial court, on August 2, 2013, again found him in violation of probation and excluded him from Proposition 36 probation.