People v. Whitner CA6

Filed 11/6/15 P. v. Whitner CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040856 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1120584)

v.

DONALD BENN WHITNER,

Defendant and Appellant.

Defendant Donald Benn Whitner entered into a plea agreement in which he pleaded guilty to four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)1 – counts 1, 2, 3, and 5) and two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1) – count 4 and 7). Defendant also admitted that he personally used a handgun (§ 12022.53, subd. (b)) as to counts 2, 3, and 5 and had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and two prior prison commitments (§ 667.5, subd. (b)). In exchange for defendant’s pleas and admissions, one count of second degree robbery and the associated personal use of a handgun enhancement was dismissed. After denying defendant’s motion to dismiss a prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced defendant to 100

1 All further statutory references are to the Penal Code.

years to life consecutive to 67 years four months in state prison. On appeal, defendant contends: (1) the trial court violated the terms of the plea agreement by sentencing him to a prison term that exceeded the maximum sentence under the agreement; and (2) the trial court abused its discretion when it denied his Romero motion. We reverse the judgment and remand for resentencing.

I. Statement of Facts In September 2011, defendant gave a note to a teller at the Bank of the West and indicated that he wanted $10,000. The teller gave him all of the money that she had. On October 4, 2011, defendant went to a different branch of the Bank of the West and told a teller that he wanted $30,000. When she began to walk away, he lifted his shirt and revealed a semiautomatic handgun in his waist. After she and her supervisor put the money into a bag, defendant took the bag. A week later, defendant told a teller at the U.S. Bank to give him $50,000 and pulled out a handgun. The teller gave him the money.