Opinion
C084389
03-09-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY DAVID WARREN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16NCR11471, 16NCR11472, 16NCR10791, 16NCR11322, 16NCR11395, 15PRCS080)
Defendant Timothy David Warren negotiated the disposition of a number of pending cases against him in return for certain sentencing recommendations from the prosecutor. When the time came for sentencing, the prosecutor did not make the agreed-upon recommendations, and instead advocated for an even greater sentence. The trial court sentenced defendant to a greater sentence than contemplated by the three felony plea agreements.
Defendant now contends, and the Attorney General agrees, that the People violated the plea agreements by failing to recommend the agreed-upon sentences for the three felony charges at issue here. The parties also agree that remand should be to a different judge. We agree with the parties and remand for specific performance and resentencing before a different judge.
BACKGROUND
The underlying facts are not relevant to the issue raised on appeal. It suffices to say that defendant was charged with numerous crimes in three felony cases, as well as a separate misdemeanor case and (misdemeanor) probation and community supervision violations; he negotiated a plea agreement with the district attorney to resolve all the pending charges and violations.
As relevant here, in case No. 16NCR11395 (the burglary case), defendant pleaded guilty to second degree commercial burglary. (Pen. Code, § 459.) In case No. 16NCR11471 (the transporting case), defendant pleaded guilty to transporting methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) In case No. 16NCR11472 (the maintaining case), defendant pleaded guilty to maintaining a place for trafficking in controlled substances. (Health & Saf. Code, § 11366, subd. (a).) In additional cases not part of defendant's claim on appeal, he pleaded guilty to misdemeanor resisting a peace officer and admitted (misdemeanor) probation and community supervision violations.
In (partial) exchange for his three felony pleas, the People agreed to recommend that defendant's sentence in the burglary case be served concurrent to the principal term, although the plea agreement did not specify the term for the burglary or an agreement as to what the principal term would be. The People also agreed to recommend that defendant be sentenced to the low terms in the transporting and maintaining cases (two years and 16 months, respectively). The trial court accepted defendant's pleas and referred the case to the probation department for a report. The report recommended defendant be sentenced to the upper term of four years on the transporting case as the principal term (rather than the agreed-upon two years) and eight consecutive months as to both the burglary and maintaining cases (one-third the middle term, consecutive, on each, rather than the agreed-upon concurrent sentence for the burglary and "lower term" sentence for maintaining).
The low term sentence for the maintaining count was 16 months, as the plea agreement for that charge correctly noted. However, the plea agreement did not explicitly note an agreement to run the maintaining sentence concurrently to the principal term, as did the plea agreement for the burglary charge. An agreement to the low term on a subordinate count would generally signal an agreement to a concurrent sentence on that count, as a consecutive sentence would require imposing one-third the middle term on any subordinate count. In any event, the People clearly failed to recommend the lower term on this count, as the plea agreement had specified they would do. --------
At the December 2016 sentencing hearing, the trial court indicated its intention to sentence defendant to an aggregate term of five years four months in state prison, as recommended by the probation department and set forth immediately above. The prosecutor agreed with the court's indicated as to the three felonies at issue here. He also asked for additional (consecutive) custody time on the three misdemeanors at issue despite a concurrent recommendation, stating defendant "doesn't deserve any kind of break" and "deserves to be locked up." The prosecutor added that the longest possible sentence would "get [defendant] out of here, out of Glenn County, so [people] can breathe a little bit and relax a little bit and [not] have the worry about this guy being out on Christmas, doing whatever thieving things he has to do or whatever drugs he's running around all over this particular county. At least Glenn County will be safer for the holidays."
When defense counsel argued that the prosecutor had agreed to recommend the low term and that this agreement "was part of the reason [defendant] made an admission of guilt," the prosecutor stood silent. Nor did the court directly address this assertion or mention any agreement.
DISCUSSION
Defendant contends the prosecutor violated the plea agreement and thus defendant's right to due process by failing to recommend the agreed upon sentence. He requests remand for a new sentencing hearing before a different judge, arguing reassignment is appropriate as the prosecutor exacerbated the failure to adhere to the plea agreement by enthusiastically arguing for an even higher sentence than the judge had proposed, affirmatively arguing against "any kind of a break" for defendant.
The Attorney General agrees with both contentions and so do we. We remand the matter for a new sentencing hearing before a different judge.
When a plea agreement is not implemented according to its terms, due process principles are implicated. (People v. Villalobos (2012) 54 Cal.4th 177, 182; accord, People v. Mancheno (1982) 32 Cal.3d 855, 860.) "[W]here a district attorney has, on the record, accepted a plea bargain and it has been approved by the court, both the prosecution and the defendant are entitled to the benefits for which they have bargained." (People v. Rutledge (1982) 140 Cal.App.3d 955, 962.)
Defendant's plea forms included the prosecutor's agreement to recommend the sentences for the three felony counts of conviction set forth above. The prosecutor did not do so, and in fact advocated for an even greater sentence than the court imposed, arguing that defendant did not "deserve any kind of a break." This was a breach of the plea agreement.
"Specific enforcement [of a plea bargain] is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances." (People v. Mancheno, supra, 32 Cal.3d at p. 861; see also People v. Kaanehe (1977) 19 Cal.3d 1, 14.) Here, the plea forms made clear that the prosecution's recommendations were not binding on the trial court, thus specific enforcement of the agreement will not obligate the sentencing court to impose the recommended sentence. Accordingly, we remand the matter for resentencing and specific performance by the People.
The parties agree that given the prosecutor's arguments at sentencing, a different judge should hear this case on remand. We agree that under these particular circumstances, remand to a different judge would ensure that defendant receive the benefit of his bargain for a good faith recommendation of a lower sentence than that previously received. The prosecutor's advocacy against that which the People had previously agreed to advocate and statements to the court that defendant is undeserving of a lower sentence have ensured that the People's recommendation for the agreed-upon sentences should not be made to the same judge. (See, e.g., People v. Kaanehe, supra, 19 Cal.3d at p. 15 ["We do not deem it likely that any judge, however objective and disciplined he may be, can wholly remove from consideration in resentencing defendant the matters improperly communicated to him by the prosecutor"]; Santobello v. New York (1971) 404 U.S. 257, 263 [ordering that where specific performance is the remedy, "petitioner should be resentenced by a different judge"]; People v. Daugherty (1981) 123 Cal.App.3d 314, 323 [same].)
DISPOSITION
The matter is remanded for specific performance of the plea agreement, at a sentencing hearing to be held before a different judge.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.