Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 076080, 072903, 072188, 066319
RAYE, J.
Defendant Jovany Gabriel Martinez was sentenced to an aggregate term of 11 years after having pled no contest to various offenses in four separate cases. He contends, and the People concede, that the trial court violated his plea agreement. We shall remand for resentencing.
BACKGROUND
On November 7, 2006, defendant was charged in case No. 066319 (case No. 1) with transportation of morphine sulfate, transportation of methamphetamine, and possession of controlled substance paraphernalia. On March 6, 2007, defendant failed to appear in court and a count for failure to appear was added to the complaint.
On April 23, 2007, defendant was charged in case No. 072188 (case No. 2) with transportation of methamphetamine, false impersonation, and driving without a license.
On May 4, 2007, a fifth count for possession of methamphetamine was added to the complaint in case No. 1. Also on May 4, 2007, defendant entered into a negotiated plea in which he pled no contest to the failure to appear and possession of methamphetamine charges in case No. 1, and to the transportation of methamphetamine charge in case No. 2. (Pen. Code, § 1320, subd. (b); Health & Saf. Code, §§ 11377, subd. (a), 11379, subd. (a).) All other counts were dismissed and defendant was placed on probation for three years.
All further statutory references are to the Penal Code.
On May 31, 2007, defendant was charged in case No. 072903 (case No. 3) with the following offenses occurring on May 29, 2007: carrying a loaded firearm in public and with a prior felony conviction, possession of a firearm by a convicted felon, possession of property with serial numbers removed, and unlawful display of evidence of automobile registration. Defendant failed to appear in court, and on June 29, 2007, an additional count for failure to appear was added to the complaint in case No. 3.
On July 19, 2007, at the probation department’s request, the trial court revoked defendant’s probation in cases No. 1 and 2, and issued a warrant for defendant’s arrest.
On October 5, 2007, defendant entered into a negotiated plea in which he agreed to plead no contest to carrying a loaded firearm in public with a prior felony conviction in case No. 3 (§ 12031, subd. (a)(1)(2)(A)) on the condition that the remaining charges be dismissed. It was further agreed that he would serve concurrent low terms in all three cases for a total term of two years in prison. The trial court sentenced defendant to the two-year term as follows: the low term of 16 months for possession of methamphetamine and a consecutive eight months for failure to appear in case No. 1, a concurrent two-year term for transportation of methamphetamine in case No. 2, and a concurrent term of 16 months for the firearm conviction in case No. 3.
On November 6, 2007, defendant and another inmate were charged in case No. 076080 (case No. 4) with assault by means of force likely to cause great bodily injury, done for the benefit of a criminal street gang and with the infliction of great bodily injury; battery with great bodily injury, done for the benefit of a criminal street gang; conspiracy to commit a felony and infliction of great bodily injury; and criminal street gang activity with the infliction of great bodily injury.
On February 7, 2008, defendant pled no contest in case No. 4 to battery with great bodily injury and admitted the street gang enhancement (§§ 243, subd. (d), 186.22, subd. (b)(1)) in exchange for dismissal of the remaining charges and a stipulated term of eight years in state prison. It was also acknowledged that he would be resentenced in cases No. 1, 2, and 3 at the time of sentencing in case No. 4.
On February 22, 2008, over his objection, defendant was sentenced to an aggregate term of 11 years, consisting of eight years in case No. 4 (three years for the battery and five years for the enhancement), plus one year (one-third the midterm) for transportation of methamphetamine in case No. 2, eight months (one-third the midterm) in case No. 3 for carrying a loaded firearm, eight months (one-third the midterm) in case No. 1 for possession of methamphetamine, and eight months (one-third the midterm) in case No. 1 for failure to appear.
DISCUSSION
Defendant contends the trial court did not honor his plea agreement when it sentenced him to 11 years in prison because the term included a total of three years in cases No. 1, 2, and 3 rather than the two years to which he had agreed. The People concede the issue. We accept the People’s concession and remand for resentencing.
When defendant entered into the negotiated plea on October 5, 2007, agreeing to plead no contest to carrying a loaded firearm in public in case No. 3, he did so with the understanding that his probation would be revoked in cases No. 1 and 2, and he would receive concurrent low terms in all three cases for a total term of two years. Thereafter, he was sentenced to the two-year term.
Defendant’s subsequent plea agreement in case No. 4 carried with it the understanding that he would receive eight years in case No. 4 and be resentenced in cases No. 1, 2, and 3. This agreement comports with sections 1191 and 1170.1, subdivision (a), which require the trial court, in a subsequent case, to promptly recalculate a previously imposed prison term and aggregate the cases using the calculation of one-third the midterm for the subordinate sentences. (See, e.g., People v. Williams (2007) 156 Cal.App.4th 898, 907-908.)
Although the plea agreement in case No. 4 noted that the trial court would resentence in cases No. 1, 2, and 3, in doing so, the trial court was limited by the previously imposed two-year term. “When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) Here, defendant entered his plea in case No. 3 on the condition that the remaining charges would be dismissed and he would receive a two-year term on cases No. 1, 2, and 3. His plea in case No. 4 did not modify that agreement.
Moreover, California Rules of Court, rule 4.452(3) prohibits a later sentencing court from changing a prior sentencing court’s discretionary sentencing decision. (See In re Reeves (2005) 35 Cal.4th 765, 773.) “Such decisions include the decision to impose one of the three authorized prison terms referred to in section 1170(b), making counts in prior cases concurrent with or consecutive to each other, or the decision that circumstances in mitigation or in the furtherance of justice justified striking the punishment for an enhancement.” (Cal. Rules of Court, rule 4.452(3).) Thus, it was improper for the trial court to modify the previously imposed concurrent low terms.
Accordingly, we remand for resentencing in accordance with defendant’s plea agreements and California Rules of Court, rule 4.452.
Because we remand for resentencing, we do not reach defendant’s contention, to which the People concede, that the trial court should be ordered to delineate the fines and credits as they pertain to each of the underlying case numbers.
DISPOSITION
The convictions are affirmed, the sentence is vacated, and the matter is remanded for resentencing.
We concur: SCOTLAND, P. J., ROBIE, J.