People v. Dionne CA3

Filed 9/29/15 P. v. Dionne CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C075738

Plaintiff and Respondent, (Super. Ct. No. CM039957)

v.

STEVEN DANSON DIONNE, JR.,

Defendant and Appellant.

After defendant Steven Danson Dionne, Jr., robbed two people using a deadly weapon and was charged in a criminal complaint, he entered into a negotiated plea. He agreed to plead no contest to one count in exchange for dismissal of other counts. As for the sentence, defendant agreed only that the trial court would exercise its discretion up to the maximum of eight years. The trial court, however, treated the plea agreement as including a negotiated term and imposed the maximum term without exercising its discretion.

1

We conclude that the sentence must be vacated and the matter remanded for the trial court to exercise its sentencing discretion. We also conclude that there is no merit in the Attorney General’s contentions that the appeal must be dismissed for failure to obtain a certificate of probable cause and that defendant should be estopped from complaining that the trial court imposed the maximum term. A discussion of the relevant procedure is included in the Discussion. DISCUSSION I Failure to Exercise Discretion and State Reasons Defendant contends that his sentence must be vacated and his case remanded for resentencing because the trial court failed to exercise its discretion and state its reasons in sentencing. The Attorney General does not respond to this contention but, instead, argues that we should dismiss the appeal. Defendant’s contention has merit and requires the requested relief. Defendant was charged by complaint with two counts of robbery and one count of making a criminal threat. The complaint also alleged that defendant used a deadly weapon. Defendant entered into a negotiated plea with the prosecution. Under the agreement, defendant pleaded no contest to one count of robbery (Pen. Code, § 211; hereafter, unspecified code citations are to the Penal Code) and admitted the deadly weapon use allegation (§ 12022, subd. (b)(2)). The prosecution agreed to dismissal of the remaining counts and enhancements. The plea form signed by defendant provided that he “may serve this maximum sentence as a result of [his] plea: 8 years” and “[p]robation will be granted only if the sentencing judge finds this to be an unusual case (Prison Presumptive).” Defendant agreed with the statement of the form: “I do understand that the matter of probation and sentencing is to be determined solely by the Superior Court Judge.”