Opinion
E074608
04-15-2021
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD BRYANT, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1903965) OPINION APPEAL from the Superior Court of Riverside County. Eric A. Keen and Gail A. O'Rane, Judges. Reversed and remanded with directions. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
In a plea to the court, defendant and appellant James Edward Bryant pleaded guilty to two counts of robbery (Pen. Code, § 211) and one count of making a criminal threat (§ 422). He also admitted that he had suffered one prior strike conviction (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (c)(1)) and one prior serious felony conviction (§ 667, subd. (a)). In exchange, the trial court indicated a sentence of 10 years four months. The matter was thereafter continued for sentencing with defendant waiving his right to be sentenced by the court taking the plea pursuant to People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle). When defendant appeared for sentencing, he requested the sentencing court strike the five-year prior serious felony conviction. After the sentencing court explained it had no ability to do so since the prior serious felony was part of defendant's negotiated plea with the court, the sentencing court sentenced defendant to 10 years four months in state prison.
All future statutory references are to the Penal Code.
On appeal, defendant contends the sentencing court erred when it mistakenly believed it had no discretion to deviate from the trial court's indicated sentence, and therefore the matter must be remanded to allow the sentencing court to exercise its discretion to strike the prior serious felony conviction pursuant to section 1385. The People concede that the sentencing court erred by finding it was bound by the previously indicated sentence. However, the People argue the record is ambiguous as to whether the trial court lawfully indicated a sentence, rather than an impermissible judicial plea bargain, and thus under these circumstances, the matter must be remanded. "We conclude that the record is ambiguous as to whether the sentence proposed by the trial court reflected what it believed was the appropriate punishment for this defendant and these offenses, regardless of whether defendant was convicted by plea or following trial, or instead reflected what it believed was necessary to induce defendant to enter a plea." (People v. Clancey (2013) 56 Cal.4th 562, 568 (Clancey).) We therefore remand the matter to the trial court to rehear and reconsider the plea.
FACTUAL AND PROCEDURAL HISTORY
On August 22, 2019, defendant entered a grocery store he had been banned from due to being a habitual shoplifter at that store. Defendant walked to the refrigerated section of the store, grabbed an alcoholic beverage, and drank it. He then walked to the freezer section, removed a bag from his pocket, filled it with frozen burritos, and tried to leave the store.
When a store clerk and a security officer made contact with defendant and told him that he needed to pay for the burritos, defendant shouted, " 'I ain't paying for shit' " and attempted to leave the store. Store employees attempted to take the stolen goods back, but defendant became irate and stated, " 'Oh you gonna regret that, I'm gonna hurt all of you.' " He also shouted, " 'Don't touch me,' " and " 'I'll kill all of you.' " The employees eventually recovered the frozen burritos from defendant. Afterwards, defendant grabbed a deli tray and said, " 'I'm not leaving here empty handed.' "
Defendant then walked out of the store with the deli tray and the employees followed him. When the employees tried to recover the tray, defendant got into a fighting stance and attempted to hit them with the tray. During the struggle, the deli tray fell on the ground. Thereafter, defendant fled the scene and the employees went back inside the store. The entire incident was recorded on the grocery store's surveillance cameras. Defendant was subsequently arrested.
On October 24, 2019, an amended felony complaint was filed charging defendant with two counts of robbery (§ 211; counts 1 & 2) and making criminal threats (§ 422; count 3). It was further alleged that defendant had suffered two prior strike convictions (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), to wit, a 1989 conviction for robbery with the personal use of a firearm and a 2000 conviction for robbery. It was also alleged that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)), to wit, the 2000 conviction for robbery.
On November 19, 2019, defendant's appointed counsel filed a motion to strike defendant's prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Defendant also submitted an ex parte letter directly to the trial court explaining why he believed his prior strikes should be dismissed. The People filed an opposition to the motion, arguing defendant did not fall outside the spirit of the Three Strikes law. The People noted that like the current offenses, defendant's prior strike convictions were both robberies (one of which involved the use of a firearm), and although the strikes were from 1989 and 2000, defendant had since been convicted of several crimes in multiple counties. The People also asserted that the nature of the current offenses—where defendant became threatening and physically abusive after being caught shoplifting—showed that defendant continued to pose a danger to society.
At a felony settlement conference hearing on December 4, 2019, with defendant and both counsel present, the trial court indicated that it would agree to strike one of defendant's prior strike convictions and impose a prison term of 10 years four months if defendant agreed to plead guilty in the instant case and his five open misdemeanor cases.
The reporter's transcript does not include transcripts of the felony settlement conferences.
When the parties next appeared before the trial court on January 9, 2020, the court explained to defendant that because victims have the right to be present at sentencing to address the court and the prosecutor had not been able to contact the victims in defendant's case, the court could not sentence defendant that day even if defendant agreed to plead guilty. The court also stated, "They're asking to bring the matter back for sentencing on January 22nd, which is just two weeks . . . . That's the only way that I can give you this Court's indicated." The court further informed defendant that his options were to either enter a plea that day and the court would "put sentencing over," or defendant "could come back for a prelim."
Defense counsel clarified, "And just to be clear, this is a Court-indicated based on the Romero that had been filed, which would only be valid if we take the indicated." The court responded, "I'm not gonna be in this assignment after tomorrow, and so if we bring the matter back, I don't know what another judge would indicate. My indicated—it's still a big number—it's ten years, four months. That would wrap up all six of [defendant's] cases and would include the Court having to strike a strike." When the court asked defendant what he would like to do, defendant indicated that he would like to be sentenced by the current court since the court was willing to strike his strike. The court replied, "So I would not be able to sentence you today. So we would have to . . . in order to make this work, I would have to take what's called an 'Arbuckle waiver,' meaning you would have to agree that a different judge can sentence you. Of course, that judge would sentence you pursuant to my indicated. They couldn't deviate from my indicated, but I would have to get your consent to do that as well." Defendant thereafter requested a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). --------
Following the Marsden hearing, defense counsel informed the court that defendant "would like to take the indicated from the Court." When the court asked if defendant needed more time to speak with his counsel, defendant's counsel indicated that defendant was "ready to take the pleas." The court then informed defendant, "I did have an opportunity to speak with your attorney and the district attorney on your case, and we discussed the Romero that was filed by your attorney. I indicated to your attorney that if you were going to plead guilty to the Court, . . . [¶] . . . [¶] . . . that I would strike one of your strikes, sir. And then you would be pleading guilty to all counts on all cases, that the Court would ultimately be sentencing you to ten years and four months in state prison." After defendant noted that he understood "the Court's indicated," the court asked if defense counsel had a preference as to which of the two strikes should be dismissed, and counsel picked "the oldest one" from 1989.
Thereafter, without having defendant admit the truth of his 1989 prior strike conviction, the court began its analysis of the Romero factors affecting its discretion to dismiss a strike under section 1385. The court found that (1) defendant's prior strike convictions were both robberies and were both remote; (2) defendant's 1989 strike prior involved a robbery with the use of a firearm; and (3) the current offenses were violent in nature, but were not an increase in seriousness given defendant's prior conviction for robbery with a firearm. The court also discussed the particulars of defendant's background, including that he was 48 years old, married, employed, and on medication for schizoaffective disorder, his lengthy criminal history consisting of several theft-related convictions, and the fact that he was facing a 25-year-to-life sentence if the court did not dismiss one of his strikes. Lastly, the court noted, " 'I do fear that [defendant] does pose a danger to society and that he has now committed three robberies.' " Nonetheless, the court exercised its discretion under section 1385 and dismissed defendant's 1989 prior strike conviction for robbery with a firearm.
Thereafter, defendant acknowledged that he had initialed and signed a plea form in each of his cases and that he had read and understood the rights he would be giving up by pleading guilty and the consequences of his pleas. Defendant then pleaded guilty to all three counts in the instant case and admitted the truth of the 2000 prior strike conviction and the prior serious felony conviction. He also pleaded guilty in his misdemeanor cases after the court dismissed several failure-to-appear counts on its own motion. The parties stipulated to the factual basis for the pleas in the instant case, and the court found the pleas to be knowing, intelligent, and voluntary. The change of plea form indicated that sentencing was continued "to 1/22/20 for Marsy's Law" and specified that the guilty plea was conditioned on the consideration that the "custody term will be 10 yrs 4 mos state prison." The plea form was not signed by the prosecutor and specified that it was a "plea to [the] court."
The court explained that when defendant returned for sentencing on January 22, 2020, his "sentence will be as follows"—the low term of two years on count 1, doubled to four years pursuant to the remaining prior strike; the same sentence on count 2, which would be stayed pursuant to section 654; one-third the middle term of two years on count 3, doubled to 16 months pursuant to the strike; and five years for the prior serious felony, plus concurrent sentences on all of the misdemeanor cases, for a total of 10 years four months in state prison. The court reminded defendant that he would no longer be the judge in that courtroom at the time of defendant's sentencing. In obtaining defendant's Arbuckle waiver, the court asked, "Do you agree that the judge who is here can sentence you pursuant to my indicated?" Defendant replied, "Yeah."
On January 22, 2020, defendant appeared for sentencing before another judge. Defense counsel indicated that defendant "would like to speak to the Court regarding the nickel prior that was part of the plea he entered." Defendant then asked the court to consider striking the prior serious felony conviction, claiming that the court had "that authority now." In response, the court stated, "The problem that I have is, you already entered your plea. I'm just going to be the sentencing judge. I can't change anything you've done with a different judge. I just get to honor his deal to you. This was a plea to the Court, is my understanding. . . . I can't change what you've already done with a different judge." The sentencing court noted that defendant's maximum exposure was 25 years to life, that he "made a plea to the Court," and "got a deal of ten years, four months," and that number was "based on the negotiated plea with the Court." The court explained that it did not have the ability to strike defendant's prior serious felony because it could not change the plea he had accepted with another judge. The sentencing court thereafter sentenced defendant to 10 years four months in prison according to the plea court's "breakdown" of the sentence for each count in each of defendant's cases.
Defendant timely filed a notice of appeal on January 27, 2020.
DISCUSSION
Defendant contends the sentencing court erred when it mistakenly believed it had no discretion to deviate from the trial court's indicated sentence and, therefore, the matter must be remanded to allow the sentencing court to exercise its discretion to strike the prior serious felony conviction. The People acknowledge that the sentencing court erred by finding it was bound by the previously indicated sentence, but believe the trial court engaged in an impermissible judicial plea bargain. The People also assert that to the extent the record is unclear whether the trial court lawfully indicated a sentence, the matter must be remanded to resolve the ambiguity.
It is undisputed here that the sentencing court erred when it mistakenly believed it had no discretion to deviate from the trial court's indicated sentence and consider defendant's request to strike his prior serious felony. However, we must first resolve whether the trial court impermissibly engaged in judicial plea bargaining.
"We review allegations of judicial plea bargaining for abuse of discretion. This is because we may void the act of a trial court that is 'in excess of the trial court's jurisdiction' [citation], and ' "judicial plea bargaining in contravention of existing law [is an act] in excess of a court's 'jurisdiction' " . . .' [citation]." (People v. Labora (2010) 190 Cal.App.4th 907, 914.)
In Clancey, supra, 56 Cal.4th 562, the California Supreme Court set forth the legal distinction between unlawful plea bargains and lawful indicated sentences. The trial court in Clancey, following off-the-record discussions among the parties, recited the details of the defendant's plea bargain on the record. The defendant was to plead to the allegations as charged, including an admission to a prior serious felony conviction under the Three Strikes law. The trial court stated it anticipated that at sentencing, it would grant the defendant's request pursuant to Romero, supra, 13 Cal.4th 497, to strike the prior serious felony allegation and sentence the defendant to prison for five years. (Clancey, at pp. 570, 572-584.)
In Clancey, the People objected to the proposed disposition, arguing a reasonable disposition would be a state prison sentence of eight or nine years. (Clancey, supra, 56 Cal.4th at pp. 570-571.) Despite the objection, the trial court obtained the appropriate waivers from the defendant, the parties stipulated to a factual basis for the plea, and the defendant pleaded no contest to all of the allegations and admitted the prior serious felony allegation. During sentencing as the trial court considered the defendant's Romero request, the People again objected to the proposed disposition of a five-year sentence. The trial court explained that the purpose of the early resolutions calendar was to dispose of cases. (Clancey, p. 571.) The court struck the prior serious felony allegation pursuant to Romero and sentenced the defendant to a prison term of five years. (Clancey, at p. 572.)
Our Supreme Court in Clancey proceeded to discuss the doctrine of separation of powers between the courts and the executive branch of government represented by the prosecutor, especially the executive's prerogative to conduct plea negotiations. (Clancey, supra, 56 Cal.4th at pp. 572-575.) The Clancey court stated four basic limitations on the courts toward this end: (1) the trial court generally should refrain from announcing an indicated sentence while the parties are still negotiating a potential plea bargain; (2) the trial court should consider whether the existing record concerning the defendant and the defendant's offense or offenses is adequate to make an informed and reasoned judgment as to the appropriate penalty; (3) a court cannot offer any inducement in return for a plea of guilty or nolo contendere, treating the defendant more leniently because he or she forgoes his or her right to trial or more harshly because he or she exercises that right; and (4) the court cannot bargain with a defendant over the sentence to be imposed. (Clancey, at pp. 574-575.)
The Clancey court further noted that an indicated sentence is not a promise from the court or a promise that a particular sentence will in fact be imposed at sentencing and it does not divest the trial court of its ability to exercise its discretion at the sentencing hearing. (Clancey, supra, 56 Cal.4th at pp. 575-576.) By indicating a sentence, "the court has merely disclosed to the parties at an early stage—and to the extent possible—what the court views, on the record then available, as the appropriate sentence so that each party may make an informed decision." (Id. at p. 575.) Accordingly, if the factual predicate underlying an indicated sentence is disproved at trial, the court may withdraw that indicated sentence. (Id. at p. 576.) Furthermore, the court retains broad discretion to modify an intended sentence even if its factual predicate is not disproved. (Id. at pp. 576-577.) In particular, "[t]he development of new information at sentencing may persuade the trial court that the sentence previously indicated is no longer appropriate for this defendant or these offenses. Or, after considering the available information more carefully, the trial court may likewise conclude that the indicated sentence is not appropriate." (Id. at p. 576.) Therefore, a trial court retains its "full discretion" at sentencing to select a fair and just punishment despite any previous indicated sentence and a court may sentence a defendant differently than an indicated sentence based on additional new information or a reexamination of the relevant circumstances. (Ibid.) The Clancey court concluded the record in that case did not clearly show whether the indicated sentence represent the trial court's considered judgment as to the appropriate punishment for the defendant. When both conditions are met, the proper remedy is a conditional reversal with directions to the trial court on remand to resolve the ambiguities in the record. (Id. at p. 578.)
An indicated sentence reflects "the trial court's considered judgment as to the appropriate punishment in the case, regardless of whether [the] defendant is convicted by plea or at trial . . . ." (Clancey, supra, 56 Cal.4th at p. 576, italics added.) If " 'the defendant pleads "guilty to all charges . . . so all that remains is the pronouncement of judgment and sentencing," ' " the court may proceed to carry out its indicated sentence. (Id. at p. 570, italics added.) In contrast, unlawful judicial plea bargaining occurs when a court offers the defendant more lenient treatment or another inducement to enter a guilty plea. (Id. at p. 575.) An indicated sentence offers no such inducement.
In this case, although the prosecutor, unlike in Clancey, never objected to any aspect of the plea agreement, including the trial court's proposed disposition, we agree with the People that the record is nonetheless ambiguous and it appears the trial court may have engaged in unlawful judicial plea bargaining. Defendant did not plead to the sheet and admit all charges and allegations as is typically required for the court to properly indicate a sentence. (See, e.g., Clancey, supra, 56 Cal.4th at p. 577; People v. Allan (1996) 49 Cal.App.4th 1507, 1516.) Further, it is unclear whether the parties were "still negotiating a potential plea bargain" at the time. (Clancey, at p. 574.) Moreover, the trial court went beyond merely promising to dismiss the prior strike conviction if he pleaded guilty; the court actually did so prior to taking defendant's pleas and admissions, but only after securing defendant's commitment to plead guilty that day in the current case and the other cases to "wrap up all six" of his cases. In other words, the court offered defendant an inducement to plead guilty, knowing defendant was facing 25 years to life.
Additionally, although "an indicated sentence is not a promise that a particular sentence will ultimately be imposed at sentencing" (Clancey, supra, 56 Cal.4th at p. 576), the trial court guaranteed defendant that the sentencing court would sentence him "pursuant to [the trial court's] indicated" and "couldn't deviate from" it. The trial court purported to bind the sentencing court to its indicated sentence of 10 years four months. Indeed, the sentencing court's comments at the sentencing hearing demonstrate that the sentencing court thought it had no option but to sentence defendant to 10 years four months. Defendant's change of plea form also indicates that the "custody term will be" 10 years four months in state prison. Although our supreme court in Clancey explained that trial courts may not bargain with a defendant over the sentence to be imposed (Clancey, supra, 56 Cal.4th at p. 574), the plea form reflects defendant's understanding that his "plea to the court" was in exchange for a certain term to be imposed in accordance with the indicated sentence.
On the other hand, the record also demonstrates that the court considered itself fully informed as to the relevant facts about defendant and his crimes at the time the court indicated its sentence. And after considering all of the evidence and argument, the court continued to believe the indicated sentence was appropriate in this case. However, "[w]hat is missing is a clear statement, whether made by the court or otherwise discernible from the record, that the court's indicated sentence reflected its best judgment as to the appropriate sentence based on defendant's criminal history and his current offenses and regardless of whether defendant was convicted by plea or at trial." (Clancey, supra, 56 Cal.4th at p. 577.)
Defendant contends that the trial court merely announced an indicated sentence, and that the court's dismissal of the 1989 prior strike conviction "does not lend credence to a claim of judicial plea bargaining." We disagree. Given that he did not admit the 1989 prior strike conviction before pleading guilty, i.e., " 'plead to the sheet' " (Clancey, supra, 56 Cal.4th at p. 569), defendant's indicated-sentence argument fails.
DISPOSITION
We conditionally reverse the judgment with directions to the trial court on remand to rehear and reconsider defendant's plea in accordance with the views expressed herein. (Clancey, supra, 56 Cal.4th at pp. 587-588.) If the plea is accepted, defendant shall be sentenced accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.