PEOPLE v. GOODWILLIE

Filed 2/9/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STORY CONTINUED FROM PART II………

The cumulative corroborative effect of the unequivocal eyewitness testimony, Goodwillie's admissions, and this additional corroborating evidence is sufficient to give independent reliability to the eyewitnesses' identifications.  " Under these circumstances  .  .  .  we defer to the conclusion of the trial court that the probative value of the testimony in assisting the trier of fact   .  .  .  outweighed  .  .  .  its 'prejudicial effect  .  .  .  .'"   (Sanders, supra, 11 Cal.4th at p. 510.)

            Goodwillie contends that a recent decision of the United States Supreme Court supports his contention that the trial court's exclusion of expert testimony regarding eyewitness identification violated his constitutional right to a meaningful opportunity to present a complete defense, and casts doubt on the authority cited above, citing Holmes v. South Carolina (2006) ___ U.S. ____, 126 S.Ct. 1727, 1729 (Holmes).  In Holmes, the Supreme Court addressed " whether a criminal defendant's federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict."   (Ibid.)

            The defendant in Holmes sought to introduce evidence that another man had attacked the victim, proffering at a pretrial hearing the testimony of several witnesses who placed the other man in the victim's neighborhood on the morning of the assault, and the testimony of four additional witnesses who testified at the pretrial hearing that the other man had proclaimed the defendant's innocence or had admitted to having committed the crimes.  (Holmes, supra, 126 S.Ct at p. 1730.)  The trial court excluded the defendant's evidence of third-party culpability, concluding that such evidence was admissible if it " '" raise[s] a reasonable inference or presumption as to [the defendant's] own innocence" ' but is not admissible if it merely '" cast[s] a bare suspicion upon another" ' or '" raise[s] a conjectural inference as to the commission of the crime by another." '  [Citation.]"   (Id. at p. 1731.) 

            The South Carolina Supreme Court affirmed, holding that " 'where there is strong evidence of an appellant's guilt, especially where there is strong forensic evidence, the proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence.'  [Citation.]"   (Holmes, supra, 126 S.Ct. at p. 1731.)

            The United States Supreme Court explained why this holding was untenable:

" Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt.  Instead, the critical inquiry concerns the strength of the prosecution's case:  If the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues.  Furthermore, as applied in this case, the South Carolina Supreme Court's rule seems to call for little, if any, examination of the credibility of the prosecution's witnesses or the reliability of its evidence."   (Holmes, supra, 126 S.Ct. at p. 1729.)

            In considering whether the South Carolina evidentiary rule violated the Constitution, the United States Supreme Court stated, " 'Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants " a meaningful opportunity to present a complete defense." '  [Citations.]  This right is abridged by evidence rules that 'infring[e] upon a weighty interest of the accused' and are '" arbitrary" or " disproportionate to the purposes they are designed to serve." '  [Citations.]"   (Holmes, supra, 126 S.Ct. at p. 1731.)

            The Court ultimately concluded that South Carolina's rule of evidence pertaining to third-party culpability was " arbitrary" : 

" [B]y evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt.  Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is 'arbitrary' in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further.  Nor has the State identified any other legitimate end that the rule serves.  It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant's right to have '" a meaningful opportunity to present a complete defense." '  [Citations.]"   (Holmes, supra, 126 S.Ct. at p.  1735.)

            We do not read Holmes to require a result different from the result we would reach under California precedent relating to the admission or exclusion of eyewitness identification expert testimony.  Unlike the defense that the defendant in Holmes was prevented from presenting, the defense Goodwillie contends he was prevented from fully presenting appears to be one of mistaken identity.  Goodwillie was not prevented from presenting that defense to the same extent as the defendant in Holmes was prevented from presenting evidence of third-party culpability.  In Holmes, the defendant wanted to establish that a particular third party may have committed the offense.  His only method of doing so was through witness testimony.  By not allowing the defendant to call his witnesses, the South Carolina trial court entirely prevented the defendant from presenting his defense.  In contrast, while Goodwillie was not allowed to present expert testimony regarding the unreliability of eyewitness testimony, he was permitted to cross-examine the eyewitnesses to raise possible problems with their identifications of him.  The court's decision to exclude the expert testimony did not prevent Goodwillie from offering evidence, if such evidence existed, showing that some eyewitnesses failed to identify him as the perpetrator.  Thus, the California evidentiary rule regarding expert eyewitness identification testimony did not entirely prevent Goodwillie from presenting a defense of mistaken identification.

            The standard for establishing whether it is error to exclude eyewitness identification testimony is different from the standard the South Carolina court used to determine when a defendant would be allowed to present evidence regarding third-party culpability.  Trial courts in South Carolina applying the rule had concluded that where there was strong evidence of the defendant's guilt (particularly strong forensic evidence), evidence of a third party's culpability did not raise a reasonable inference as to the defendant's innocence, and thus was not admissible.  The Supreme Court explained that this type of evidentiary rule is problematic because the trial court does not focus on the probative value or the potential adverse effects of admitting that particular evidence, but rather, looks to see how strong the prosecution's case is.  If the prosecution's case is strong enough, then a South Carolina court would exclude a defendant's third-party culpability evidence even if that evidence had significant probative value and posed no undue risk of prejudice or confusion of the issues.  (Holmes, supra, 126 S.Ct. at p.  1732.)  The Supreme Court determined that such a rule violated the Sixth Amendment.

            The California rule pertaining to expert testimony regarding eyewitness identification that requires trial courts to examine whether there exists substantial corroborative evidence that lends independent reliability to the eyewitness testimony is not analogous to the evidentiary rule disapproved as " arbitrary" in Holmes.  First, as discussed above, the California rule does not contemplate the exclusion of direct witness testimony identifying a third party as the perpetrator (the issue in Holmes), nor does it preclude the admission of alibi testimony that conflicts with eyewitness identification of the defendant.  Additionally, as we have noted, a defendant may cross-examine any eyewitness to point out problems or inconsistencies in that witness's identification of the defendant. 

            Unlike the South Carolina rule pertaining to evidence of third-party culpability, the California rule pertaining to expert testimony regarding eyewitness identification testimony does not ask the court to weigh the prosecution's evidence as to the guilt or innocence of the defendant prior to deciding whether to admit the expert testimony.  Rather, the court looks to the body of evidence that corroborates the eyewitness identification, i.e., whether there is substantial evidence tending to show that the eyewitness identification is itself reliable, in order to assess the probative value of the expert witness testimony.  If there is substantial evidence showing that the eyewitness testimony is reliable, the trial court may conclude that the probative value of expert testimony would not outweigh any prejudicial effect caused by potential confusion of the issues and/or the amount of time that would be consumed by such testimony.  (See Sanders, supra, 11 Cal.4th at pp. 509-510 [" we defer to the conclusion of the trial court that the probative value of the testimony in assisting the trier of fact was outweighed by its 'prejudicial effect involving the amount of time consumed'" ].) The Constitution does not prohibit this type of rule.  (Holmes, supra, 126 S.Ct. at p. 1732 [" While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury" ].)

            Finally, unlike the rule in South Carolina, California's evidentiary rule regarding eyewitness identification expert testimony does not rely solely on " evaluating the strength of only one party's evidence  .  .  .  ."   (Holmes, supra, 126 S.Ct. at p. 1735.)  For example, in Sanders, the Supreme Court mentioned that the defendant presented no alibi defense, suggesting that if the defendant had done so, such evidence would have been considered in determining whether the trial court erred in excluding eyewitness identification expert testimony.  (Sanders, supra, 11 Cal.4th at p. 509.)  Like the defendant in Sanders, Goodwillie did not present an alibi defense in this case.  Nor did Goodwillie raise challenges to the evidence corroborating the multiple eyewitness identifications.  He thus cannot establish that the trial court failed to consider his challenges to the prosecution's evidence.  (Compare Holmes, supra, 126 S.Ct. at p. 1734 [" in evaluating the prosecution's forensic evidence and deeming it to be 'strong'--and thereby justifying exclusion of petitioner's third-party guilt evidence--the South Carolina Supreme Court made no mention of the defense challenges to the prosecution's evidence" ].)^[1]  

D.        Goodwillie's due process rights were violated when the trial court and the

            prosecutor misinformed him as to his eligibility for good conduct credits,

            causing Goodwillie to refuse the plea offer

            1.         Background

            At the February 28, 2005 hearing, Goodwillie, the prosecutor and the judge all discussed a potential plea bargain the People had offered.  Goodwillie told the court that he and the prosecutor had been discussing a possible plea bargain, and that he was willing to " sign a deal to 5 and a half right now if she was [sic] to offer it to me.  I have no strikes.  I never had a strike.  .  .  .  I talked to her and asked her this several times, and she says, no, due to the stipulation of something I didn't understand, so I just let it be.  I've asked her--I told her I would take 5 and a half right now."   Goodwillie also said to the judge, " No, I told her I would take 5 and a half.  I mean, you know, I would still have the strikes.  If it can be stricken, you can give me half, and that's what I would ask."   (Italics added.)

            The prosecutor then engaged in the following colloquy with the judge:

" Ms. Worden:      He doesn't understand that--he wants to do 50

                              percent instead of the 80 percent.  And I was trying

                              to convey to him that it's not--or 85 percent. 

                              Excuse me.

" The Court:           85.

" Ms. Worden:      It's 85 percent. I was trying to convey to him that

                              that's not an option.  You can't give somebody, you

                              know, 'I'll give you 50 percent.'  And I said I would

                              go and even ask him if that deal was still on the

                              table.  But it would never be on the table.  You

                              can't do 50 percent.

" The Court:           All right.  So in your talking, at least in terms of the

                              prior readiness plea to counts 2 and 5, each and

                              both of those would be qualifying strikes, right?

" Ms. Worden:      It was count 2 and count 5, your honor.

" The Court:           Right.  So each of those is a qualifying serious

                              felony or a strike, right?

" Ms. Worden:      Yes.

" The Court:           So if you pled out that way, Mr. Goodwillie, you'd

                              have two strikes on your record and there's no way

                              that you would qualify for 50 percent credit."

            Goodwillie attempted to negotiate a different deal, but the court stopped him and asked the prosecutor to go find out what the " last best offer" was so that Goodwillie and the prosecutor could try to reach a " meeting of the minds."   The prosecutor indicated that she had to check with someone else to find out what deal, if any, was still available to Goodwillie.

            After a brief recess, the prosecutor extended to Goodwillie an offer that had previously been made to him.  The prosecutor stated, " Your honor, I spoke with Mr. Mendez.  Mr. Mendez said for this morning only he will hold open the offer that was made at the readiness conference, which is count 2 and count 5, and stipulate to 5 years, four months, which is the mid-term on both of those, and then the people would be striking the prison priors.  Mr. Goodwillie has three prison priors."

            After clarifying that the other charges would be dismissed, the court responded, " All right.  So that would, then, for Mr. Goodwillie's benefit and full understanding, mean that if he were to accept that offer, he would acquire two serious felony convictions and/or violent felony convictions on his record.  That is to say, two qualifying strikes, correct?  .  .  .  [¶]  .  .  .  That would also mean that that stipulated sentence legally would have to be served out at 85 percent, meaning a maximum of 15 percent credits against that sentence, correct?"   (Italics added.)  The prosecutor replied, " Yes, your honor."  

            The court then asked Goodwillie if he wished to accept or reject the offer.  Goodwillie responded, " I'm going to reject it."

            At the sentencing hearing, after Goodwillie had been tried and convicted, the trial court realized that Goodwillie would in fact be eligible to receive 50 percent credit, even after having been convicted on all of the counts.^[2]  The court stated:

" The Court:  Parenthetically, for clarity of the record, the court does not view this case or any of these offenses as being on[es] that restrict the accumulation of credits under 2933.1.  That is to say, the court agrees with the probation officer's analysis in that regard, that Penal Code section 4019 does apply and that you can legally accrue credits within the Department of Corrections of up to 50 percent as against the sentence to be imposed.  That's not to say that you will necessarily be in a position to achieve one for one credits, but there will be no legal bar to your doing so."

" Mr. Goodwillie:  And I do this time or 80 or 85?

" The Court:  No. In this case you can do the time at as little as 50 percent."

            The prosecutor was still under the impression that Goodwillie would have to serve at least 80 or 85 percent of the sentence under the Three Strikes Law.  When asked whether she disagreed with the court's analysis of Goodwillie's eligibility for credit, the prosecutor replied, " We actually were just discussing it.  I wasn't sure.  We were going to go look it up when I got up.  I thought because of the nature of the three strikes, just being a serious felony it had to be served at either 80 or 85 percent."  

            The court then clarified its view of the matter:

" No.  I've looked at 2933.1 in the context of this particular case because I was concerned about that question, and it has to be an offense that is otherwise delineated and set out in the 667.5 (c), and none of the offenses in this case are.  So I'm confident that this is a 4019 case in which legally Mr. Goodwillie can earn up to one for one credit."

            The court and the prosecutor were thus mistaken when they informed Goodwillie prior to trial that he would not be eligible to receive 50 percent credit.

2.         Analysis

            The trial court correctly determined prior to sentencing that Goodwillie would be eligible to receive 50  percent conduct credits.  However, at the time Goodwillie was deciding whether to accept the offer of five years four months, the court and the prosecutor mistakenly informed him that he would not be eligible for 50  percent credits, and instead would have to serve, at a minimum, 85  percent of his sentence.  Goodwillie contends that the trial court and prosecutor had a duty to provide him with correct information regarding the consequences of the offered plea agreement, and that by misinforming him, the court and the prosecutor caused him to reject a plea offer he would have otherwise readily accepted. 

            We conclude that the court and prosecutor had a duty not to misinform Goodwillie as to his potential eligibility for 50  percent conduct credits.  We further conclude that their providing Goodwillie with inaccurate information on this matter prejudiced Goodwillie in that it caused him to reject an offer that was more favorable to him than the sentence he received after trial, and deprived him of the opportunity to reach any other plea bargain.

            Goodwillie claims that the fact that the court and prosecutor provided him with incorrect information as to the consequences of a guilty plea violated his right to due process.  This type of claim typically arises in the context of a claim of ineffective assistance of counsel.  Cases involving allegations of ineffective assistance of counsel with respect to advising the defendant to accept or reject a plea bargain thus provide a useful framework for considering Goodwillie's assertions. 

            In cases involving plea bargains that the defendant has accepted, reversal is generally required only if the court fails to inform the defendant of information that makes the plea bargain less attractive than it appeared to be without the omitted information.  (See People v. Cortez (1997) 55 Cal.App.4th 426, 430, citing People v. Hellgren (1989) 208 Cal.App.3d 854, 858.)  Extending that concept to the reverse situation where, as here, a defendant rejects the plea bargain and is subsequently convicted, reversal may be required if the omitted information makes the bargain more favorable to the defendant than it appeared to be without the information.

            In In re Alvernaz (1992) 2 Cal.4th 924, 928 (Alvernaz) the Supreme Court examined the defendant's contention that he rejected a plea agreement that was more favorable to him than the outcome of his trial, due to ineffective assistance of counsel.  The Court summarized its resolution of the issue in this way:

" In this case we must decide under what circumstances, if any, a criminal defendant who rejects an offered plea bargain prior to trial and thereafter is convicted and receives a sentence less favorable than the terms of the offer, may challenge that conviction and sentence on the ground of ineffective assistance of counsel in the decision to reject the offered plea bargain.  [¶]  As we shall explain, we conclude, in conformity with the decisions of the federal and state courts that have addressed the issue, that when a defendant demonstrates that ineffective representation at the pretrial stage of a criminal proceeding caused him or her to proceed to trial rather than to accept an offer of a plea bargain that would have been approved by the court, the defendant has been deprived of the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution, even if the defendant thereafter receives a fair trial.  We also conclude that when a defendant has established that such a constitutional violation has occurred, the appropriate remedy is either modification of the judgment consistent with the terms of the offered plea bargain, or a new trial with resumption of the plea negotiation process."

            In this case, it was not Goodwillie's counsel who misadvised him regarding the terms of the plea agreement, but rather, the trial court and the prosecutor.  Although a pro  per defendant is responsible for informing himself regarding the substantive and procedural law at issue in his case, the court and the prosecutor, as officers of the court, have a duty not to misstate the law, whether intentionally or not.^[3]  By misinforming Goodwillie as to the consequences of the proffered plea bargain, the court and the prosecutor caused him to reject an offer that was more favorable to him than the result after trial, and one that he had indicated a willingness to accept.^[4]

            The Attorney General suggests that the prosecutor might have withdrawn the offer if the prosecutor had realized during the plea negotiations that Goodwillie would be eligible to receive 50 percent good behavior credit, rather than 15 percent.  On this basis, the Attorney General challenges whether there was in fact a firm offer extended to Goodwillie that was more favorable to him.

            The misunderstanding on the part of the trial court and the prosecutor as to what percent of Goodwillie's sentence he would have to serve before he would be eligible for parole, and their misinforming Goodwillie as to that issue, induced Goodwillie to reject the offer that was made and to take his case to trial.  Even if the prosecutor would have revoked the offer if she had realized that Goodwillie's credit eligibility was other than what the prosecutor and judge understood it to be, it is likely that plea negotiations would have continued if the prosecutor and Goodwillie had not been under the misimpression that Goodwillie would have to serve 85  percent of any sentence he received.^[5]  The trial court and prosecutor's misunderstanding brought the plea bargaining process to a halt, and thus prevented Goodwillie from obtaining a plea offer more favorable to him than the

sentence he received after trial.  This violates notions of fundamental fairness assured by the due process clause of the Fourteenth Amendment.  (See California v. Trombetta (1984) 467 U.S. 479, 485.)

            Because we have concluded that the trial court's error violated Goodwillie's right to due process, the standard for assessing the prejudice to Goodwillie is that stated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).  (See, e.g., People v. Scheller (2006) 136 Cal.App.4th 1143, 1152 [error implicating due process requires " federal 'beyond a reasonable doubt' standard" of Chapman].)  Chapman provides that federal constitutional error requires reversal unless the People can prove that the error was harmless beyond a reasonable doubt.  (People v. Scheller, supra, 136 Cal.App.4th at p.  1152.)  The People have not made such a showing.  In fact, the evidence establishes that Goodwillie was prejudiced.

            Goodwillie can clearly establish that he would have accepted the plea offer that was made if he had been accurately advised of his credit eligibility.  He stated on the record that he was willing to accept five and a half years if, under the terms of the offer , he could receive 50 percent credit.  The offer was five years four months.  Further, there is evidence in the record that suggests that the trial court would have approved that plea bargain.  The court was engaged in the plea negotiations at the time the offer was made.  During that process, the court did nothing to suggest that the court would not approve the proffered plea deal.  In fact, the court's comments in presenting the offer to Goodwillie indicate that if Goodwillie were to have accepted the offer, the court would have implemented the terms of the offer.  The court said, " So if you pled out that way, Mr. Goodwillie, you'd have two strikes on your record, and there's no way that you would qualify for 50 percent credit."   Implicit in the court's statement is that if Goodwillie were to accept the terms of the offer, the court would approve it, and certain consequences would follow.  The court suggested that if the parties could agree, there would be no need for a trial:  " And if we can reach a meeting of the minds, wonderful.  If not, we're going to continue the trial date and Mr. Williams will be out of the picture."   The court never indicated that it would be unwilling to approve an offer of five years four months, by which Goodwillie would have been eligible for 50 percent credit rather than 85 percent credit.  Rather, the court's concern with the percentage of credit Goodwillie would be eligible to receive appeared to relate only to whether Goodwillie adequately understood the consequences of the proposed agreement.

            With respect to the suggestion that there may not have been a firm offer that Goodwillie would have accepted because the prosecutor might have revoked the offer if she had not been under the misimpression that he would be required to serve at least 85  percent of his sentence, as discussed above, the prejudice to Goodwillie goes beyond being deprived of the specific plea offer of five years four months.  The harm that the error caused Goodwillie includes the prevention of any further plea negotiations that might have otherwise taken place.  If a different plea agreement might have been reached, but was not because the judge and the prosecutor labored under a misunderstanding as to Goodwillie's eligibility for good behavior credits, Goodwillie was prejudiced.  The People have not demonstrated beyond a reasonable doubt that a plea agreement more favorable to Goodwillie than the sentence he received after trial would not have been reached in the absence of the error, either in the form of the original offer, or a different but still more favorable offer made with Goodwillie's actual credit eligibility in mind. 

            Because the People have not established beyond a reasonable doubt that the error did not prejudice Goodwillie, the next question is what remedy is appropriate in this situation.  Like the defendant in Alvernaz, Goodwillie seeks specific performance of the plea bargain that was previously offered.  In rejecting the appellant's request that the court order specific performance of the plea bargain previously offered him, the Alvernaz court noted that, " California courts  .  .  .  generally disfavor the remedy of specific enforcement of a failed plea agreement when 'specifically enforcing the bargain [will limit] the judge's sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing.'"   (Alvernaz, supra, 2 Cal.4th at p.  942, quoting People v. Mancheno (1982) 32 Cal.3d 855, 861; and citing People v. Calloway (1981) 29 Cal.3d 666 [" ordering specific performance would prevent the trial court from exercising its sentencing discretion" ].)  The Alvernaz court further noted that in Mabry v. Johnson (1984) 467 U.S. 504 (Mabry), the United States Supreme Court held that the federal Constitution does not bar the prosecution from withdrawing an offered plea bargain, even after the defendant has accepted it, explaining, " 'A plea bargain standing alone is  .  .  .  a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.'"   (Alvernaz, supra, 2 Cal.4th at p. 943, quoting Mabry, supra, 467 U.S. at p. 507.) 

            Based on the holdings in these cases, the Alvernaz court determined that " where ineffective assistance of counsel causes a defendant to reject the offer of a plea bargain, the remedy of specific enforcement of the plea offer following trial and conviction is neither constitutionally compelled nor consistent with the exercise of the trial court's broad discretion in determining the appropriate sentence for a defendant's criminal conduct."   (Alvernaz, supra, 2 Cal.4th at p. 943.)  For many of the reasons cited by the court in Alvernaz for rejecting the imposition of specific performance of the plea bargain, we too decline to require the prosecution to follow through with the specific plea bargain that was offered and rejected.  Rather, we take guidance from the Supreme Court's disposition in Alvernaz in fashioning an appropriate remedy.

            The Alvernaz court concluded:

" [T]he appropriate remedy for ineffective assistance of counsel that has resulted in a defendant's decision to reject an offered plea bargain (and to proceed to trial) is as follows:  After the granting of relief by the trial court (on a motion for new trial or in a habeas corpus proceeding) or by an appellate court, the district attorney shall submit the previously offered plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to retry the defendant and resume the plea negotiation process.  If the plea bargain is submitted to and approved by the trial court, the judgment shall be modified consistent with the terms of the plea bargain."   (Alvernaz, supra, 2 Cal.4th at p. 944.)

            The Supreme Court recognized that the remedy it devised in Alvernaz " does not return the parties to the status quo ante if the district attorney elects to resume the plea negotiation process or to proceed to trial" because " [u]pon resumption of plea negotiations, the prosecution has acquired as substantial bargaining leverage the circumstance of having obtained a conviction of the defendant following a trial."   (Alvernaz, supra, 2 Cal.4th at p. 944.)  However, the Court rejected the idea that affording the defendant the right to a new trial leaves the defendant with an " 'empty' remedy."   (Ibid.)   The Court concluded that a " defendant is in a better position, in preparing for a new trial following trial and conviction, to evaluate the strengths and weaknesses of both the prosecution's case and the defense's case."   (Ibid.)  Additionally, the defendant " is restored the bargaining leverage often afforded by the prosecutor's desire to avoid the time and expense of a new trial and the accompanying uncertainty as to the outcome of the proceedings."   (Ibid.)

            The rule the Supreme Court devised to remedy " the ineffective assistance of counsel that has resulted in a defendant's decision to reject an offered plea bargain" (Alvernaz, supra, 2 Cal.4th at p. 944), should similarly apply to remedy the denial of due process attributable to a source other than defense counsel that has deprived the defendant of the opportunity to enter into a plea bargain. 

IV.

DISPOSITION

            The judgment is vacated and the case is remanded to the trial court.  On remand, the district attorney may elect, within 30 days of the issuance of the remittitur, to:  (1)  submit the previous offer of five years four months to the trial court for its approval; or (2) set the case for retrial and, if the district attorney so chooses, resume the plea negotiation process.  If the district attorney chooses to submit the previously offered plea bargain to the court and the court approves the plea bargain, the judgment shall be modified consistent with the terms of the plea bargain and as so modified, reinstated.

CERTIFIED FOR PUBLICATION

AARON, J.

WE CONCUR:

                   HUFFMAN, Acting P. J.

                                   O'ROURKE, J.

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^[1]           The trial court in Holmes made the decision to exclude the defendant's proffered evidence of third-party culpability after a pre-trial hearing.  In contrast, the trial court in this case did not rule on the admissibility of the expert testimony until after the prosecution had presented its case.  Goodwillie had the opportunity to formally challenge the prosecution's evidence prior to the court's ruling on the admissibility of the proffered expert testimony, an opportunity that the defendant in Holmes, supra, 126 S.Ct. at page 1732, did not have.

^[2]           Under the plea agreement, some of the counts would have been dismissed. 

^[3]           We do not intend to suggest that either the trial judge or the prosecutor intentionally misinformed Goodwillie about the consequences of the plea offer.  The record demonstrates the opposite.  It appears that the court and the prosecutor were simply mistaken as to the percentage of good conduct credits Goodwillie would be eligible to receive under the terms of the plea offer.  However, the impact on Goodwillie is the same.

^[4]           The Supreme Court has concluded that a trial court's failure to advise a defendant of the collateral consequences of entering into a plea bargain, such as his eligibility for parole under the Three Strikes Law, does not entitle a defendant to withdraw his guilty plea.  (See People v. Barella (1999) 20 Cal.4th 261, 265.)  However, the holding in Barella does not apply in this situation because the trial court in Barella did not affirmatively misinform the defendant as to his eligibility for parole.  Rather, the court simply failed to inform the defendant that he would be required to serve at least 80 percent of his sentence as a result of the Three Strikes Law, rather than the usual 50 percent.  (Ibid.)  Here, the trial court and the prosecutor provided Goodwillie with incorrect information that was directly related to an issue with which he was concerned during the plea bargaining process, namely, when he might be eligible for parole as a result of good conduct.

^[5]           It is not at all clear that the District Attorney would in fact have revoked the offer upon finding out that Goodwillie would be eligible to receive 50 percent credit.  At oral argument, counsel for the Attorney General conceded that the prosecutor might have stood by the offer made to Goodwillie, regardless of his good behavior credit eligibility.