P. v. Brooks

Filed 8/22/07 P. v. Brooks CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Reversed.

Rod Pacheco, District Attorney, and Jacqueline C. Jackson, Deputy District Attorney, for Plaintiff and Appellant.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Respondent.

Defendant pleaded guilty to one count of identity theft (Pen. Code, 530.5, subd. (a))^[1]and admitted that he had sustained four prior prison terms ( 667.5, subd. (b)). In return, defendant was promised a total term of seven years in state prison and the dismissal of an alleged prior strike conviction ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The People objected to the sentence and to the dismissal of the prior strike allegation based on the court engaging in illegal plea bargaining, the courts failure to send the matter for a presentence report to fully investigate defendants priors, and defendants failure to bring a motion to dismiss the strike. After the trial court commented that it was not a plea bargain and noted its reasons for dismissing the prior strike allegation, the court sentenced defendant pursuant to its agreement: the upper term of three years for the substantive offense, plus four consecutive one-year terms for each of the prior prison term allegations.

The People now appeal, contending that (1) the trial court engaged in illegal plea bargaining, and (2) the trial court abused its discretion in dismissing the prior strike allegation. As explained below, we agree and reverse the judgment.^[2]

I^[3]

DISCUSSION

At a hearing on December 1, 2006, the following colloquy occurred between defendant and the trial court:

THE COURT: [Defendant], I spoke with your counsel and Peoples counsel. And based upon our discussion, I have made an offer in this case. And by virtue of your counsel relaying that to you, you wish to go forward with the offer Imade. Is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Youre currently charged with one count in the Information. That is 530.5(a) of the Penal Code, using personal information of another person to obtain credit and defrauding that person, a felony. Is that your understanding?

THE DEFENDANT: Yes.

THE COURT: Under that there are four prison priors and one strike prior. Is that your understanding, sir?

THE DEFENDANT: Yes.

THE COURT: My offer is that if you plead guilty to Count 1 as a felony, I would sentence you to the mid term of two years in State prison; admit the four prison priors, I would run them consecutive to each other and consecutive to the charge; . . . thats not correct. [] . . . [U]pper term of three years and run them consecutive, for a total of seven years in State prison. Is that your understanding?

THE DEFENDANT: Yes.

THE COURT: And striking the strike. [] I would strike the strike based upon a number of reasons . . . . (Italics added.)

The court thereafter gave its reasons for striking the prior strike conviction, noting it was an old strike that occurred back in 1988, the current offer was substantially higher than the 18 months the People went along with previously, and the current offer was based on defendant serving 80 percent.

Subsequently, defendant pleaded guilty to the substantive offense and admitted the four prior prison term allegations. Defendant did not admit the prior strike allegation.

When the People objected to this plea bargain, the court stated, Its not a plea bargain . . . . The People also objected to the court striking the strike, arguing that defendant had not brought a motion to strike, nor had the People had an opportunity to respond to such a motion. The prosecutor also noted, [W]hat I stated in chambers during our conference was that [defendant] does have an extensive criminal history, and that it is, in our estimation, that â€‘‑ he has been out less than four years, free of prison custody, in the last 20 years. Based upon his extensive criminal history, we believe that he is an inappropriate candidate to have his strike struck. Over the Peoples objection, the court proceeded to strike the prior strike allegation.

At sentencing, the People again objected to the plea agreement. The prosecutor argued: As was mentioned at the time of the plea, Your Honor, the People are objecting to the plea. We believe it is an illegal plea. And were asking that the Court simply set this out so we can do a pre-sentence report and we can fully investigate his priors. [] Looking at my file, I show that he had been in custody for almost the past 20 years. And of those 20 years only four years has [he] been out of custody, out of prison. I think he is â€‘‑ when the [L]egislature looked at someone who is a recidivist and is deserving of the Three Strikes Law or the one strike sentencing scheme, I think he falls squarely within that parameter. Therefore, under the Williams^[4]case, we are asking the Court to put this over so we can get that record.

The court responded that it had stated its rationale on the record at the time of the striking of the strike and concluded it was a fair and just disposition under Williams and its progeny. The court thereafter sentenced defendant pursuant to the plea agreement.

The People claim the trial court engaged in unlawful plea bargaining based on the courts statements, defendants failure to admit the prior strike allegation, and the court striking the prior strike allegation without a presentence report. Defendant responds that the People forfeited this issue on appeal for failing to object below and, in the alternative, asserts there was no improper plea bargaining because the court merely gave an indicated sentence.

We disagree with defendant that the People waived or forfeited this issue on appeal. (See People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354; see also 1238, subd. (a)(10); People v. Orin (1975) 13 Cal.3d 937, 942-943; People v. Vergara (1991) 230 Cal.App.3d 1564, 1567-1569; People v. Trausch (1995) 36 Cal.App.4th 1239, 1247, fn. 9).^[5] Further, in view of the trial courts statements and defendants failure to admit the prior strike allegation, the record clearly supports the Peoples claim that the trial court engaged in illegal plea bargaining.

Plea bargaining generally refers to an agreement between the prosecution and defense that is approved by the court. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called plea bargaining, is an essential component of the administration of justice. Properly administered, it is to be encouraged. . . . [] Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons . . . . [] However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. . . . [] This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. (Santobello v. New York (1971) 404 U.S. 257, 260-262 [92 S.Ct. 495, 30 L.Ed.2d 427].)

Plea bargaining has become an accepted practice in American criminal procedure, an integral part of the administration of justice in the United States [citation], essential to the expeditious and fair administration of justice. [Citation.] . . . [] Both the state and the defendant may profit from a plea bargain. The benefit to the defendant from a lessened punishment does not need elaboration; the benefit to the state lies in the savings in costs of trial, the increased efficiency of the procedure, and the further flexibility of the criminal process. (People v. West (1970) 3 Cal.3d 595, 604.)

Thus, plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. (In re Alvernaz (1992) 2 Cal.4th 924, 933.) 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. [] [W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. [Citation.] [] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy. [Citations.] (People v. Walker (1991) 54 Cal.3d 1013, 1024.)

Section 1192.5 is the general plea bargaining statute. It provides that, upon a plea of guilty, the plea may specify the punishment. The defendant must be sentenced to the specified punishment if the plea is accepted by the prosecutor in open court and approved by the trial court. However, the statute also provides: If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. The section also provides: If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemedwithdrawn and the defendant may then enter the plea or pleas as would otherwise have been available. (Ibid,italics added.)

In People v. West, supra, 3 Cal.3d 595, our Supreme Court suggested four ways to document plea bargains as part of the record, including the preparation and use of forms for the recordation of plea bargains. (Id. at p. 610.) The form presented by the defense here is entitled felony plea form. (Capitalization omitted.) It states the terms of the agreement: defendant would plead guilty to the one substantive theft-related count and would admit the four prior prison term enhancements in return for a totalterm of seven years and the dismissal of the prior strike allegation. However, there is no signature of the prosecutor on the form that signifies the prosecutions agreement to the plea agreement; rather, it states Plea To Crt. In addition, the prosecutor opposed the agreement on the record.

The People thus argue that, since they did not agree to the proposed disposition, the trial court improperly negotiated an agreement with the defendant. We agree. It appears that the trial court did not give merely an indicated sentence, but rather stated to defendant that if he pleaded guilty to the substantive offense and admitted all of the prior prison term enhancements, the court would sentence defendant to a total term of seven years in state prison and strike the prior strike allegation. (Cf. People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1269.) As noted above, the courts statements clearly reflect that it made a promise in exchange for a guilty plea.

The difference between a plea bargain and an indicated sentence is that [p]lea bargaining . . . may be related to an indicated sentence but is a distinct way of compromising a case short of trial. When giving an indicated sentence, the trial court simply informs a defendant what sentence he will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea. [Citations.] An accused retains the right to reject the proposed sentence and go to trial. The sentencing court may withdraw from the indicated sentence if the factual predicate thereof is disproved. [Citation.] (People v. Superior Court (Ramos), supra, 235 Cal.App.3d at p. 1271.)

Thus, a guilty plea to allcharges with an indicated sentence is proper: [A] court may indicate to a defendant what its sentence will be on a given set of facts without interference from the prosecutor except for the prosecutors inherent right to challenge the factual predicate and to argue that the courts intended sentence is wrong. If the prosecutors argument does not persuade and if the facts as developed are as assumed for the purpose of indicating the sentence, that sentence may then be imposed. If not, then defendant has the option of going to trial or accepting harsher treatment on a guilty or nolo contendere plea. Unless form is exalted over substance, the facts which are the assumed basis of sentence may be expressed in the form of the basis of a conditional plea reserving the defendants right to withdraw the plea and go to trial in the event the court determines that the facts recited are not confirmed in a fashion which enables it to sentence the defendant in accord with the condition. Substance and not form must control. Hence, any construction of Penal Code section 1192.5 which requires prosecutorial consent to the permissible scope of judicial power in sentencing rather than consent to the defendants offer of a bargain of a plea for lenient treatment is an unconstitutional invasion by the executive of power reserved to the judicial branch. [Citation.] (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276-277, fn. omitted; see also People v. Superior Court (Ramos), supra, 235 Cal.App.3d at pp. 1270-1271; People v. Vessell (1995) 36 Cal.App.4th 285, 296.)

The record here shows that the trial court did not give an indicated sentence or have defendant plead guilty to all the charges. Rather, it clearly stated that if defendant pleaded guilty to the substantive offense and admitted the four prior prison term enhancements, the court would sentence defendant to a total term of seven years and strike the prior strike allegation. Hence, the court did not reserve discretion to change its sentencing decision. (Cf. People v. Delgado (1993) 16 Cal.App.4th 551, 555 [appellate court found that the trial court gave an indicated sentence based on the fact that the court retained its discretion to change its sentencing choice after review of the probation report and statement from the victim].) In addition, the court never responded to any of the aggravating factors raised by the prosecutor or even allowed the matter to be submitted for a presentence report as requested by the prosecutor.

The record here clearly shows that it was more than an indicated sentence, as defendant suggests: It was a judicial decision to impose a seven-year sentence on its own motion, regardless of subsequent facts, argument, or probation department recommendations. Section 1192.5 provides that the court shall inform the defendant that its approval of the plea bargain is not binding, and it may be set aside at the sentencing hearing in the light of further consideration of the matter . . . . A prosecutors agreement to a plea bargain may be withdrawn before a defendant pleads guilty or otherwise detrimentally relies on that bargain. (People v. Rhoden (1999) 75 Cal.App.4th 1346, 1353-1354, fn. omitted.) The same is true with an indicated sentence. An indicated sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made. (People v. Delgado, supra, 16 Cal.App.4th at p. 555.) But here, even though we understand the necessity for plea agreements at a time when both fiscal and judicial resources are limited, the trial court erred by inducing the guilty plea when it firmly committed that a seven-year sentence would be imposed and the prior strike allegation would be dismissed. And it appears that defendant pleaded guilty for that reason.

We acknowledge that when a defendant pleads guilty to all charges and admits all allegations, there is no need for the Peoples consent to the guilty plea. (People v. Allan (1996) 49 Cal.App.4th 1507, 1516.) However, the record here indicates that defendant did not admit the prior strike enhancement allegation; instead, the court, on its own motion, struck that allegation. The traditional role of the judge, as envisioned by Penal Code section 1192.5, is one of approving or disapproving dispositions arrived at by counsel for defendant and the district attorney, who is the duly elected representative of the People. When the judge steps out of that role and bargains directly with the defendant as to the manner in which the judges discretion will be exercised the dignity of the judiciary is impaired and public confidence in the judiciary is diminished. (People v. Superior Court (Smith)(1978) 82 Cal.App.3d 909, 914.)

While the practical aspect of defendants ultimate sentence is slight (and apparently substantially higher than that to which the People had originally agreed), we agree with the People that the transaction should properly be characterized as an illegal plea bargain by the trial court. The fundamental principles behind plea bargaining were violated.

In view of the foregoing, we find the judgment must be reversed with directions to grant defendant leave to withdraw his guilty plea. (See People v. Orin, supra, 13 Cal.3d at p. 951.)

II

DISPOSITION

The judgment is reversed, and the sentence is vacated. The matter is remanded to the trial court with instructions to allow defendant to withdraw his guilty plea.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] Because we reverse the trial courts finding that it engaged in illegal plea bargaining, we need not address the Peoples remaining contention.

^[3] The details of defendants criminal conduct are not relevant to the limited issues the People raise in this appeal. Those details are summarily set out in their opening brief, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.

^[4]People v. Williams (1998) 17 Cal.4th 148 (Williams).

^[5] Because the prosecutor objected to the plea in the trial court, we must reject defendants assertion that the People are precluded from challenging the plea bargain on appeal. The prosecutor made it clear that the People did not consent to the plea bargain based on illegal plea bargaining at the time defendant pleaded guilty and at the sentencing hearing.