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Name: People v. Toscano
Case #: B172387
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 11/22/2004

Appellant entered into a written plea agreement in which he admitted a prior “strike” with the understanding that he had a right to move to strike the prior. On the day the agreement was executed, appellant asked for date for “sentencing and a Romero motion.” As contemplated by the plea agreement, appellant filed a motion to strike the prior conviction based on an inadequate waiver of rights before the guilty plea in the prior case. At sentencing, the court advised appellant that if he wished to withdraw his plea (and face the additional original five felony counts), he could do so, but otherwise, he was going to be sentenced on his plea. The appellate court here reversed and remanded, with directions to hear and determine the constitutional issue raised in the motion to strike. The remedy was to hear appellant’s constitutional challenge, not to force him to choose between the deal and renewed exposure to greater charges.