Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kern County, Ct. No. KF003171A, Colette M. Humphrey, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J. and Poochigian, J.
In January 2008, in the instant case, appellant Raymond Leroy Becker pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a felony, and admitted enhancement allegations that he had served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). In May 2008, the court placed appellant on three years’ probation pursuant to the Substance Abuse and Crime Prevention Act of 2000 (§ 1210 et seq.).
All further statutory references are to the Penal Code.
In July 2008, appellant admitted an allegation that he violated his probation, and the court reinstated appellant’s probation.
In November 2008, the following occurred: Pursuant to a plea agreement, appellant pled no contest to a charge of possession of a billy club (§ 12020, subd. (a)(1)) in Kern County Superior Court case No. BF125608A (case No. BF125608A), and, in the instant case, admitted an allegation that in committing that offense he violated the term of his probation that he obey all laws. He entered his plea and admission on the condition that he would receive concurrent 16-month sentences in the two cases. The court revoked appellant’s probation and imposed a prison term of 16 months in the instant case and a concurrent term of 16 months in case No. BF125608A. The court made no mention of the two prior prison term enhancements appellant admitted the previous January.
On appeal, appellant contends the court violated an implied term of the plea agreement by failing to strike the two prior prison term enhancements. Appellant further argues that the appropriate remedy for this error is specific performance of the plea agreement, i.e., he contends this court should either strike the two enhancements or direct the trial court to do so. As we explain, we agree with appellant’s claim of error but we reject his proposed remedy. We will vacate the sentence and remand with directions to the trial court to consider whether to strike the prior prison term enhancements pursuant to section 1385.
DISCUSSION
At the outset we seek to clarify two points not at issue. First, as indicated above, appellant admitted the prior prison term enhancement allegations, but the court neither imposed nor struck the enhancements. This, as the parties do not dispute, was error. “The trial court had a duty to impose sentence in accord with the law. [Citations.] The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.)
Second, as the parties also do not dispute, the court’s failure to strike the prior prison term enhancements constituted a violation of the plea agreement. Given that (1) the parties entered into a plea agreement, one of the terms of which was that appellant would receive a prison sentence of 16 months; (2) appellant admitted the prior prison term enhancement allegations; and (3) the agreed-upon 16-month prison term could not be imposed without striking the enhancements, an implied term of the plea agreement was that appellant’s plea was conditioned on the court striking the prior prison term enhancements. The court’s failure to do so violated the plea agreement.
The parties part company on the issue of the appropriate remedy. As indicated above, appellant contends he is entitled to specific performance of the plea agreement. He argues that “[e]nforcement of the implied terms of the agreement, i.e., striking [the] sentence for the enhancements[,] will meet the reasonable expectation of appellant without impinging on the court’s sentencing discretion.” (Italics added.) The Attorney General counters that the matter must be remanded for resentencing at which, he suggests, the court may, in the exercise of its discretion under section 1385, strike the enhancements. In our view, the Attorney General is correct.
“‘The remedy for violation of a plea agreement depends on the circumstances of each case. [Citation.]’” (People v. Brown (2007) 147 Cal.App.4th 1213, 1224.) Although “‘[u]nder certain circumstances, specific performance of the agreement is warranted, … it is not a favored remedy for violation of a plea bargain. [Citation.]’” (Ibid.) “California courts … generally disfavor the remedy of specific enforcement of a failed plea bargain 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.’” (In re Alvernaz (1992) 2 Cal.4th 924, 942.)
“‘[J]udicial approval is an essential condition precedent to any plea bargain worked out by the defense and the prosecution.’ [Citation.] The parties’ negotiated disposition is ineffective unless and until it is approved by the court. [Citation.] This principle is recognized in numerous statutes (e.g., §§ 1192.1, 1192.2, 1192.4), the most important of which is section 1192.5.” (People v. Stringham (1988) 206 Cal.App.3d 184, 194, fn. omitted.) “‘[I]mplicit in the language of section 1192.5 is the premise that the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea.’ [Citation.] That statute ‘provides that the court’s approval of a plea bargain is not binding on the court and that approval may be withdrawn at the time of sentencing if the court, after further consideration and in the exercise of its inherent discretion in sentencing, concludes that the bargain is not in the best interests of society’ [citation] or ‘upon [the court] being more fully informed about the case.’ [Citations.] A change of the court’s mind is thus always a possibility.” (Ibid.)
Section 1192.5 provides, in relevant part: “Where [a plea of guilty or no contest] is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] 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 … plea if he … desires to do so.… [¶] If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn.…”
A sentencing court may, in the exercise of its discretion under section 1385, strike enhancements “in furtherance of justice.” (§ 1385, subd. (a); People v. Bonnetta (2009) 46 Cal.4th 143, 145 (Bonnetta).) As appellant asserts, in all probability the court meant to strike the prior prison term enhancements here and its failure to do so was simply an oversight. This factor notwithstanding, because, under the principles summarized above, the trial court may, in the exercise of its discretion, change its mind on remand, directing the court to strike the enhancements would, contrary to appellant’s contention, impermissibly limit the court’s discretion. Accordingly, we will remand to permit the court to exercise that discretion.
Our conclusion finds support in Bonnetta. In that case the trial court, over the prosecutor’s objection, accepted pleas of guilty and admissions of multiple enhancements from the two defendants, after indicating, as to each defendant, it would impose a particular sentence. At sentencing, the court reached the indicated terms by striking most of the enhancements, and the court stated on the record its reasons for striking those enhancements. However, although the court’s decision was reduced to an order entered upon the minutes, the written order did not set forth any of the court’s reasons for striking the enhancements.
As our Supreme Court pointed out: “Penal Code section 1385, subdivision (a) provides in relevant part: ‘The judge … may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.’ The discretion thereby conferred on the trial courts includes the discretion to dismiss or strike an enhancement in the furtherance of justice. [Citations.] But whether the decision is to dismiss the entire action or, as here, only an enhancement allegation, Penal Code section 1385 requires that the reasons for the dismissal be set forth ‘in an order entered upon the minutes.’ [Citation.]” (Bonnetta, supra, 46 Cal.4th at pp. 145-146, fn. omitted.)
The court held the provisions of section 1385 are mandatory and that because of the failure to comply with the requirement of a written statement of reasons for the order dismissing the enhancements, that order was ineffective. And notwithstanding that the court stated on the record its reasons for dismissing the enhancements, our Supreme Court further held that remand was necessary. The court reasoned as follows: “[A]s the trial court’s order of dismissal is ineffective, the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason. In such cases, the court must also have the power to take action such as reconvening the sentencing hearing or allowing a defendant to withdraw a plea entered on the understanding a count or an enhancement would be dismissed.” (Bonnetta, supra, 46 Cal.4th at p. 153, italics added.) Thus, in Bonnetta, where the trial court failed to effectively dismiss enhancements despite clearly expressing the intention to do so in the exercise its statutory discretion, the Supreme Court concluded that remand was necessary to allow the court to exercise that discretion. Here, under similar circumstances, remand for that purpose is likewise appropriate.
To summarize, we conclude as follows: The trial court’s failure to either strike the prior prison term enhancements under section 1385 or impose them resulted in an unauthorized sentence. In addition, the court’s failure to strike those enhancements violated the plea agreement. Specific performance of the plea agreement is inappropriate. The appropriate disposition is remand to allow the trial court to exercise its discretion under sections 1385 and 1192.7. And as indicated above, a defendant has the “established right to withdraw his or her guilty plea if the plea bargain is not honored.” (People v. Casillas (1997) 60 Cal.App.4th 445, 450; accord, Bonnetta, supra, 46 Cal.4th at p. 153.)
DISPOSITION
The sentence is vacated and the matter remanded for proceedings consistent with the views expressed in this opinion. The judgment is otherwise affirmed.