Filed 12/18/17 P. v. Martinez CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE JESUS MARTINEZ,

Defendant and Appellant.

F074079

(Super. Ct. Nos. 15CMS1060 & 16CMS1099B)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge.
Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This appeal involves two related criminal actions, Kings County Superior Court case numbers 15CMS1060 and 16CMS1099B (collectively the Underlying Matter). On April 28, 2016, appellant Jose Jesus Martinez appeared in court and the parties announced a negotiated deal to resolve the Underlying Matter (the Plea Agreement). Although appellant indicated his desire to take the Plea Agreement, he laughed while speaking with the trial court. The trial court, without addressing the merits of the Plea Agreement, ordered a scheduled preliminary hearing to commence. A little over two months later, appellant resolved the Underlying Matter for a longer sentence.
Based primarily on this court’s opinion in People v. Loya (2016) 1 Cal.App.5th 932 (Loya), appellant contends that the trial court abused its discretion in rejecting the Plea Agreement. We agree. Because the trial court failed to articulate why that deal was inappropriate, we reverse the judgment and remand for further proceedings consistent with this opinion.
BACKGROUND
I. Relevant Procedural History.
A. Case number 15CMS1060.
On September 30, 2015, appellant was placed on formal probation in case number 15CMS1060 following a no contest plea to inflicting injury on a cohabitant (Pen. Code, § 273.5, subd. (a)).
B. Case number 16CMS1099B.
On April 12, 2016, the Kings County District Attorney filed a complaint in case number 16CMS1099B charging appellant and codefendant Myra Monteverde with certain felonies and misdemeanors. Five charges were alleged against appellant:
(1) Unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a));
(2) Grand theft of an automobile (Pen. Code, § 487, subd. (d)(1));
(3) Receiving stolen property (Pen. Code, § 496d, subd. (a));
(4) Unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)); and
(5) Possession of a burglary tool (Pen. Code, § 466).
II. The April 28, 2016, Plea Agreement.
On April 28, 2016, the parties convened for a preliminary hearing in case number 16CMS1099B. Before the preliminary hearing commenced, the parties announced they had reached “a package deal” for appellant and Monteverde. Appellant agreed to admit a violation of probation in case number 15CMS1060 in exchange for a three-year sentencing lid and a dismissal of case number 16CMS1099B with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The parties also agreed that appellant could potentially be granted probation again, with a portion of that term to be served in an inpatient drug and alcohol treatment center. The trial court did not “have any problem with the three-year lid,” but needed a full report from probation before deciding on an appropriate sentence and there was no “guarantee probation is granted.” After a discussion regarding the agreement with Monteverde, the trial court had the following exchange with appellant:
“THE COURT: [Appellant], you understand that offer?
“[APPELLANT]: Yeah.
“THE COURT: You would like to accept that offer, sir?
“[APPELLANT]: Yeah.
“THE COURT: You don’t have to.
“[APPELLANT]: I do though.
“THE COURT: Well, you [sic] laughing when I ask you—
“[APPELLANT]: It is jut—I accept it though.
“THE COURT: I am not going to twist your arm. If you don’t want to take it, we have witnesses here, we can proceed on the prelim right now.
“[APPELLANT]: I accept it. I just laughed because it is just—I mean, kind of outrageous for me to sit here and take a deal that really ain’t a deal based on a whole little probation thing. Even with the previous—while I was on probation.
“THE COURT: Let’s go ahead and do the preliminary hearing.
“[APPELLANT]: That is neither here nor there though.
“THE COURT: Waive a reading of the Complaint for purposes of the preliminary hearing?”
The preliminary hearing proceeded in case number 16CMS1099B.
III. The Relevant Facts From The Preliminary Hearing.
Two police officers testified during the preliminary hearing in case number 16CMS1099B. Their testimony established that, on April 10, 2016, Monteverde and appellant were in possession of a stolen 1996 Honda Accord (the Honda). Monteverde had been driving and appellant was the passenger. Monteverde informed an officer that she did not know who owned the Honda. Appellant, however, told another officer that he had purchased the Honda for $1,500 after it was listed for sale on Craigslist. Appellant claimed to possess both a pink slip and registration, but they were not in the Honda. Appellant claimed that he had given the Honda to Monteverde to use. The key used to operate the Honda had no logo on it, and its teeth had been shaved down. When searched, appellant had a live round of ammunition in his pocket.
Following completion of the preliminary hearing, the court found appellant in violation of his probation in case number 15CMS1060. The court determined that appellant had possessed a round of ammunition and a shaved key (a burglar’s tool), which violated his previous terms of probation. Appellant was held to answer on the charges in case number 16CMS1099B.
IV. Appellant’s Subsequent Plea Agreement And Sentencing.
On June 8, 2016, appellant entered a negotiated guilty plea in the Underlying Matter based on a new deal. Appellant agreed that he violated probation in case number 15CMS1060 and he would receive a three-year prison term. In case number 16CMS1099B, he pled guilty to a violation of Penal Code sections 496d, subdivision (a), (receiving stolen property) and 30305, subdivision (a)(1), (unlawful possession of ammunition) for two consecutive terms of eight months. He admitted a prior prison term, resulting in a total prison term of five years four months. On July 6, 2016, the trial court sentenced appellant in accordance with the stipulated plea agreement.
V. Appellant Requests A Certificate Of Probable Cause.
On July 12, 2016, appellant’s trial counsel filed separate notices of appeal in case numbers 15CMS1060 and 16CMS1099B. Appellant also requested a certificate of probable cause (the Certificate) in case number 16CMS1099B on the grounds that the trial court erroneously refused to accept the Plea Agreement. On July 19, 2016, the trial court denied the Certificate because the declaration did not establish that appellant “admitted a violation of probation or entered a guilty or no contest plea which is a requirement under [Penal Code section] 1237.5.”
On August 23, 2016, appellant’s counsel refiled a notice of appeal and request for the Certificate, noting that appellant pled guilty. On September 1, 2016, the trial court, without comment, again denied the request for the Certificate.
VI. Consolidation On Appeal.
On September 15, 2016, this court consolidated the appeals in case numbers 15CMS1060 and 16CMS1099B into the present matter. On October 11, 2016, this court denied appellant’s motion to expand the scope of his appellate attorney’s appointment to file a petition for writ of mandate challenging the trial court’s denial of the Certificate. We stated: “To the extent this court determines appellant was required to obtain a certificate of probable cause in the above entitled matter to raise the issues discussed in the above mentioned motion, this court will deem the certificate of probable [cause] granted.”
DISCUSSION
I. The Trial Court Abused Its Discretion In Rejecting The April 28, 2016, Plea Agreement Without Any Stated Justification.
The parties disagree whether the trial court abused its discretion. Based on Loya, supra, 1 Cal.App.5th 932, this record establishes an abuse.
A. Standard of review.
An abuse of discretion standard is used to determine whether a trial court properly accepted or denied a negotiated plea agreement. (Loya, supra, 1 Cal.App.5th at p. 946.) We will not disturb the trial court’s decision on appeal unless “the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
B. Analysis.
“Plea negotiations and agreements are an integral, essential and accepted component of our criminal justice system. Such agreements promote speed, economy and the finality of judgments. The process involves an agreement negotiated by the People and the defendant, which requires judicial approval as an essential condition precedent to the bargain’s effectiveness.” (Loya, supra, 1 Cal.App.5th at p. 947, citing People v. Segura (2008) 44 Cal.4th 921, 929–930 (Segura).)
A trial court retains discretion to reject the terms of a plea agreement negotiated by the parties. (Loya, supra, 1 Cal.App.5th at p. 947.) “If the court believes the agreed-upon disposition is not fair, it may reject the bargain, but it cannot change the agreement without the consent of the parties. [Citation.]” (Ibid.) “[Penal Code] section 1192.5 impliedly vests a court with ‘broad discretion to withdraw its prior approval of a negotiated plea.’ ” (People v. Stringham (1988) 206 Cal.App.3d 184, 199.)
When exercising discretion to approve or reject proposed plea bargains, a trial court must protect and promote the public’s interest. (Loya, supra, 1 Cal.App.5th at p. 948.) “As a result, ‘a trial court’s approval of a proposed plea bargain must represent an informed decision in furtherance of the interests of society [citation]; as recognized by both the Legislature and the judiciary, the trial court may not arbitrarily abdicate that responsibility.’ [Citation.]” (Ibid.)
In Loya, the trial court entered into a protracted and mutually frustrating discussion with the defendant, who indicated his desire to take a negotiated plea agreement. Without offering any explanation, the trial court said it would not approve the plea and withdrew it from further consideration. (Loya, supra, 1 Cal.App.5th at pp. 942–944.) On appeal, we noted that the trial court never stated that the negotiated plea agreement was unfair or contrary to the public interest. Moreover, the trial court never indicated why the agreement was unacceptable. (Id. at p. 948.) We determined that the trial court arbitrarily rejected the negotiated plea agreement. (Id. at pp. 948–949.)
Here, appellant indicated his desire to take the April 28, 2016 Plea Agreement. He stated “yeah” when asked if he wanted the deal and he twice stated “I accept it” when speaking with the trial court. The court, however, focused on why appellant apparently laughed during this exchange. After appellant explained why he laughed, the trial court started the preliminary hearing.
The trial court made no record regarding why appellant’s acceptance was not valid or proper. At no time did the trial court explain why it found the Plea Agreement unsatisfactory. The trial court never stated that the proposed deal was unfair or contrary to public interest. As in Loya, the trial court rejected the negotiated plea deal without sufficient comment. Accordingly, based on this record, an abuse of judicial discretion occurred and we must address the appropriate remedy.
1. Loya’s remedy was based on In re Alvernaz (1992) 2 Cal.4th 924.
In Loya, the defendant’s case proceeded to trial after the trial court abused its discretion and rejected the plea agreement without stating any justification. (Loya, supra, 1 Cal.App.5th at p. 935.) In fashioning a remedy, we analyzed relevant California Supreme Court opinions and concluded that we could not divest the trial court of its sentencing discretion, and we had to protect the defendant’s rights while also providing prosecutorial discretion. (Id. at p. 951.) As such, we directed the district attorney to submit the previously negotiated plea bargain to the trial court for its approval, unless the district attorney elected to retry the defendant and resume the plea negotiation process. If the plea bargain was submitted to and approved by the trial court, then a modified judgment would be entered consistent with the terms of the plea bargain. (Id. at pp. 951–952.) However, if the district attorney elected not to submit the plea bargain to the trial court, or if the trial court did not approve it, then the defendant was to be retried. (Id. at p. 952.)
Here, the parties dispute the appropriate remedy. Because appellant never went to trial, he contends that Loya’s disposition is not appropriate in this situation because “no substantial change” occurred in the case. He argues that the prosecution should be required to resubmit the Plea Agreement for reconsideration. In contrast, respondent asserts that Loya’s remedy is proper.
The remedy that we fashioned in Loya was principally derived from In re Alvernaz, supra, 2 Cal.4th 924 (Alvernaz), wherein our Supreme Court decided under what circumstances a criminal defendant could challenge a conviction and sentence when claiming a pretrial plea bargain was rejected due to ineffective assistance of counsel. (Id. at p. 928.) Alvernaz held a Sixth Amendment violation is present when a defendant demonstrates that ineffective representation at the pretrial stage of a criminal proceeding caused the defendant to proceed to trial even if a fair trial resulted. When such a constitutional violation occurs, the judgment must either be modified consistent with the terms of the offered plea bargain, or a new trial is required with resumption of the plea negotiation process. (Ibid.)
It was noted in Alvernaz that the remedy of specific enforcement of a failed plea bargain is generally disfavored when it will limit the judge’s sentencing discretion in light of changed circumstances between the acceptance of the plea and sentencing. “Specific enforcement of a failed plea bargain is not a remedy required by the federal Constitution.” (Alvernaz, supra, 2 Cal.4th at p. 942.) Alvernaz held that specific enforcement of a plea offer following trial and conviction is neither constitutionally required nor consistent with the trial court’s broad discretion in determining the appropriate sentence for a defendant’s criminal conduct where ineffective assistance of counsel causes a defendant to reject the pretrial plea bargain. (Id. at p. 943.) Moreover, the Supreme Court noted that mandatory reinstatement of the plea bargain would be inconsistent with the legitimate exercise of the prosecutorial discretion involved in the negotiation and withdrawal of offered plea bargains. The prosecution could view the case very differently following a fair trial and conviction. The sentencing contemplated in the pretrial plea offer could no longer be consistent with the public interest and a prosecutor should not be locked into the proposed pretrial disposition. (Ibid.) Under its unique circumstances, Alvernaz concluded that it was not an appropriate remedy to either specifically enforce the offered plea bargain or to compel the prosecutor to reinstate the offer. (Id. at p. 944.) Instead, the district attorney was directed to submit the previously offered plea bargain to the trial court for its approval, unless the district attorney within 30 days elected to retry the defendant and resume the plea negotiation process. (Ibid.)
Here, after the trial court ignored the Plea Agreement, the prosecution proceeded with the preliminary hearing. During that hearing, it was learned that appellant was detained while riding in the Honda. Although he claimed to have purchased it, he did not have proof of ownership with him. The key used to operate the Honda was shaved down. Appellant had a live round of ammunition in his pocket.
The remedy first announced in Alvernaz and followed in Loya is appropriate in this unique situation. Although appellant did not go to trial, this record demonstrates that circumstances changed after the trial court ignored the Plea Agreement and before appellant was sentenced on July 6, 2016. Through the preliminary hearing, the parties gained insight into the strengths and weaknesses of the case. The testimony from the preliminary hearing established that appellant was in violation of the probation previously imposed in case number 15CMS1060.
Based on Alvernaz and Loya, specific enforcement of the Plea Agreement is neither constitutionally required nor consistent with the trial court’s broad discretion in determining the appropriate sentence for appellant’s criminal conduct. Further, a mandatory reinstatement of the Plea Agreement would be inconsistent with the legitimate exercise of prosecutorial discretion. (Alvernaz, supra, 2 Cal.4th at p. 943; Loya, supra, 1 Cal.App.5th at p. 951.) As such, we reject appellant’s contention that the prosecution, without any discretion, should be required to resubmit the Plea Agreement.
Accordingly, we follow the remedy used in Loya. Upon remand, the district attorney shall submit the Plea Agreement to the trial court for its approval, unless the district attorney within 30 days elects to try appellant and resume the plea negotiation process. If the Plea Agreement is submitted to and approved by the trial court, the judgment shall be modified consistent with its terms. If the Plea Agreement is either not submitted to the trial court or is not approved, then the Underlying Matter shall resume.
II. We Grant Appellant’s Request To Disqualify The Trial Judge.
The parties dispute whether a different judge should hear this matter upon remand. In the interests of justice, we agree with appellant that a new judge should resolve the Underlying Matter.
“At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.” (Code Civ. Proc., § 170.1, subd. (c).) The Courts of Appeal have held that disqualification under Code of Civil Procedure section 170.1, subdivision (c), should be done sparingly and only where the interests of justice require it. (Livingston v. Marie Callenders, Inc. (1999) 72 Cal.App.4th 830, 840; Kent v. Superior Court (1992) 2 Cal.App.4th 1392, 1395.)
A trial judge shall be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) To further the interests of justice, an appellate court need not determine whether actual bias exists in order to remand a matter for further proceedings before a new trial judge. (Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1024, disapproved on another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6.)
Here, without explanation, the judge ignored the Plea Agreement and proceeded with the scheduled preliminary hearing. Following resolution of the Underlying Matter, the judge twice denied the Certificate regarding this issue. In light of this record, a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial upon remand. In the interests of justice, we direct that further proceedings be heard before a new trial judge. (Code Civ. Proc., § 170.1, subd. (c).)
III. Appellant’s Custody Credits Were Improperly Calculated.
The parties agree, as do we, that appellant’s actual presentence custody credits were improperly calculated in case number 16CMS1099B. Appellant received 86 days of actual credit. However, he was entitled to credit of 87 actual days in presentence custody because his incarceration began on April 11, 2016, and he was sentenced on July 6, 2016. This period is 87 days and not 86 days as calculated in the probation report. In light of the remand, however, we take no action on this error.
DISPOSITION
The judgment is reversed. The sentences in case numbers 15CMS1060 and 16CMS1099B are vacated. These matters are remanded to the trial court for further proceedings consistent with this opinion. Upon remand, the Presiding Judge of the Kings County Superior Court shall assign another judge to conduct further proceedings in these cases. The district attorney shall submit the April 28, 2016, negotiated plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to try appellant and resume the negotiation process. If the previously negotiated plea bargain is submitted and approved by the trial court, judgment shall be entered consistent with the terms of the plea bargain. These cases shall resume in the trial court if the previously negotiated plea bargain is either not submitted to the trial court or not approved by the trial court.