Opinion
A148406
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. LEON GOLDEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC083807)
Leon Golden appeals from a judgment of conviction and sentence imposed after he entered a plea of nolo contendere to felony assault with a deadly weapon. He contends that the one-year sentence referenced in his plea form was a negotiated sentence rather than an indicated sentence, and he is therefore entitled to a one-year term rather than the three-year term imposed by the court. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
In September 2015, Golden was charged in an information with two counts of assault with a deadly weapon, threat to commit great bodily injury, and vandalism. (Pen. Code, §§ 245, subd. (a)(1); 422, subd. (a); § 594, subd. (a).) It was also alleged that Golden was ineligible for probation because he had committed four prior felonies within the meaning of section 1203, subdivision (e)(4). Golden entered a plea of not guilty and denied the enhancement allegations.
All statutory references are to the Penal Code. The Probation Officer's Report and Recommendation set forth the circumstances of the offense as follows: ". . . [T]he victim was standing in front of the yard of his neighbor when [Golden] drove up and nearly struck the victim with his vehicle. [Golden] exited the vehicle holding a metal bat and started swinging at the victim approximately three times, but he missed. The victim was able to get a hold of the bat and tackled [Golden] to the ground. [¶] During the altercation, [Golden] threatened to kill the victim. In addition, during the scuffle, [Golden] also partially hit the neighbor's leg when he was swinging at the victim with the bat. On the same date, [Golden] returned to the victim's residence and punctured the rear tire of the victim's vehicle. [¶] When the police made contact with [Golden], he was found in possession of a bat, a broken pool stick, and he admitted to approaching the victim in an aggressive manner but denied making any verbal threats to the victim." --------
On December 31, 2015, Golden entered a plea of no contest to one count of assault with a deadly weapon, and the other counts were dismissed. His plea form, signed by Golden, his attorney, and the prosecutor, stated that he had not been induced to plead by any promise of a lesser sentence except "1 YEAR (TOP) COUNTY JAIL/REFER FOR PROBATION REPORT DISMISS COUNT 2 FOR INSUFFICIENT EVIDENCE DISMISS COUNTS 3 + 4 PURSUANT TO PLEA," noting that the prosecutor sought a two-year "top" and acknowledging that the court would not decide his sentence until after consideration of the probation report. For sentencing purposes, Golden entered a "Harvey waiver." (See People v. Harvey (1979) 25 Cal.3d 754.)
At the sentencing hearing on April 22, 2016, after considering the probation officer's report, the court decided against the sentence referenced in the plea agreement, denied probation, and imposed the middle term of three years in state prison. The court noted Golden's "lack of remorse and lack of acceptance of responsibility" and stated that it selected "the midterm based upon the numerous parole violations, the escalation and behavior."
This appeal followed.
II. DISCUSSION
As mentioned, Golden contends he entered into a negotiated plea for a one-year sentence in county jail, this term of his plea agreement was not honored at sentencing, and he is entitled to specific performance of the plea bargain. We begin with a more detailed account of the relevant part of the proceedings.
A. Background
At the change-of-plea hearing on December 31, 2015, before the Honorable Mark R. Forcum, Golden confirmed to the court that no one promised him anything with respect to his plea except for what was on the plea form, and he understood that the maximum sentence for the offense was four years in prison.
Line 11 of the plea form stated, in relevant part: "I HAVE NOT been induced to plead [...] nolo contendere by any promise of representation of a lesser sentence [...] or anything else except: "1 YEAR (TOP) COUNTY JAIL/REFER FOR PROBATION REPORT DISMISS COUNT 2 FOR INSUFFICIENT EVIDENCE DISMISS COUNTS 3 + 4 PURSUANT TO PLEA." (Italics added.) In the corner of that same line was the notation "People seek 2 y top." (Italics added.) In addition, line 13 of the plea form stated: "I DO understand that the matter of probation and sentence is to be determined solely by the Court and will not be decided until the report and recommendation by the Probation Department has been considered. [¶] The Court reserves the right to withdraw its consent to any sentence imitation [sic] agreement, and in that event, I will be permitted to withdraw my plea(s) of guilty or nolo contendere and all charges will be reinstated." (Italics added. Strike-through in original.) A notation in the margin read, "Prop 8 case indicated sentence."
At the plea hearing, Judge Forcum remarked: "So the contemplation of Judge Davis was that there is a year top, and the matter would be referred to probation for a sentencing report, and I assume then it would go back to Judge Davis; is that correct?" Defense counsel, asserting that Golden had already served almost half a year in jail, asked the court if it would be willing to sentence him to one year, or consider releasing Golden on his own recognizance. The court inquired of the prosecutor, who replied: "The People had sought to—generally speaking in terms of the resolution of the case, we sought a two-year top. In light of the Court's—Judge Davis's position, we would submit on either of the two alternatives preserving our request for a two-year top sentence." The following exchange ensued: "THE COURT: Right. So I think we should honor Judge Davis's intent since it's his case, and that would be to have a probation report, but I also understand your position, Miss Andrews [defense counsel], and I'm comfortable with releasing the defendant on a Kemp OR at [this] point. [¶] MS. ANDREWS: Thank you, your Honor. [¶] THE COURT: Since he is coming up right against the year plea bargain top. So, the Kemp OR means, sir, that you must cooperate with probation, come back for sentencing on the day that we give you. Please don't commit any new crimes. If any of those things are violated, the Judge Davis's plea bargain doesn't need to be followed and he can go higher than a year, okay. [¶] THE DEFENDANT: Yes, sir."
At the sentencing hearing on April 22, 2016, before Judge Davis, Golden's attorney announced that she was prepared to submit on the "indicated sentence," and the court replied that Golden "was advised that the Court is not going to follow the indicated sentence." Golden's attorney responded, "Oh, I understand, your Honor. Right, the Court's indicated. Correct, we understand." The prosecutor later represented that "the People's offer at the time of the pretrial was an indicated low term of 2-year top and refer [to the probation officer] and the Court gave an indicated [sentence] of no state prison and the Court referred this to Probation." Defense counsel did not object to the prosecutor's characterizations.
Noting the contents of the probation report, the prosecutor asked for the imposition of the midterm of three years. Defense counsel requested a sentence of two years, "if he is going to prison." The court remarked, "There's absolutely no accountability; no acceptance of responsibility; no expression of remorse. I mean, I'm hard-pressed to find any reason to give the low term here."
After further argument and an in-chambers conference, the court commented on its referral to the Probation Department: "I did indicate 1 year top and refer. The purpose of the referral to the Probation Department to get a report and that report gives me a sense of the individual that is to appear before me for sentencing because I'm presented, when I discussed the case with one perspective from your attorney, another perspective from the district attorney, and in order for me to make a reason[ed] and well-thought-out decision with respect to an appropriate sentence, I'd like to get a word from an independent person. That's the purpose of the referral to Probation." (Italics added.)
The court denied probation based on Golden's lack of remorse and acceptance of responsibility, and sentenced him to three years in state prison based on "his numerous parole violations, the escalation and behavior."
B. Negotiated Sentence or Indicated Sentence
In arguing the difference between a plea bargain and an indicated sentence, or a negotiated sentence and an indicated sentence, both Golden and respondent rely almost exclusively on People v. Clancey (2013) 56 Cal.4th 562 (Clancey). Clancey, however, involved a different issue than the one before us.
Clancey distinguished between an unlawful plea bargain (where the court negotiates with the defendant over the charges without prosecutorial consent) and an indicated sentence (where the court indicates a possible sentence if the defendant ends up being convicted). The essential point in Clancey is that the court cannot bargain with the defendant over the charges or induce a plea by offering the defendant a more lenient sentence than what the prosecutor would offer, but it can indicate to the parties what the court views to be a reasonable sentence if the defendant is convicted of the charges, so the parties may make an informed decision in their negotiations. (Clancey, supra, 56 Cal.4th at pp. 562-563, 569-570.) In the matter before us, Golden does not contend the court improperly engaged in plea bargaining, and there is no evidence that it did; to the contrary, Golden urges that the sentence reflected in the plea form should be enforced.
In light of the relief Golden seeks, the issue here is whether the court was bound by the plea form to impose a one-year sentence, or free to impose some other sentence such as the three-year middle term it ultimately entered. Theoretically, this gives rise to two questions. First, did Golden enter into a negotiated, conditional plea, such that he could withdraw his plea if he did not receive his promised sentence (see § 1192.5); or did he enter into an open, unconditional plea, such that the court retained its sentencing discretion? Second, if Golden entered into an open plea, could the court deviate from the sentence the court had indicated when the parties negotiated their plea agreement?
The second question is not really an issue in this case. Golden does not contend that the court lacked authority to impose the three-year term if, in fact, the one-year term was merely an indicated sentence, and on this point Clancey does offer relevant instruction: "When a trial court properly indicates a sentence, it has made no promise that the sentence will be imposed. Rather, 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." (Clancey, supra, 56 Cal.4th at p. 575, italics omitted.) Further, the court explained: "To be sure, an indicated sentence is not a promise that a particular sentence will ultimately be imposed at sentencing. Nor does it divest a trial court of its ability to exercise its discretion at the sentencing hearing, whether based on the evidence and argument presented by the parties or on a more careful and refined judgment as to the appropriate sentence. . . . The 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. Thus, even when the trial court has indicated its sentence, the court retains its full discretion at the sentencing hearing to select a fair and just punishment." (Id. at p. 576, italics added.)
We turn, therefore, to the only real issue before us: the nature of Golden's plea and the proposed one-year sentence.
1. Open Plea with Indicated Sentence
For several reasons, the record clearly shows that Golden entered into an open plea with an indicated sentence, not a negotiated plea with a promised sentence.
First, the language of the plea form shows an open plea with an indicated sentence. The plea form referred to a "1 YEAR (TOP) COUNTY JAIL/REFER FOR PROBATION REPORT DISMISS COUNT 2 FOR INSUFFICIENT EVIDENCE DISMISS COUNTS 3 + 4 PURSUANT TO PLEA," with a notation "People seek 2 y top." (Italics added.) Golden acknowledged his understanding "that the matter of probation and sentence is to be determined solely by the Court and will not be decided until the report and recommendation by the Probation Department has been considered." (Italics added.) From this language, it is clear that Golden entered into an agreement with the prosecutor to enter a plea as to count one, with the other counts dismissed; and while the prosecutor had proposed a two-year sentence, Golden instead agreed that the court would choose the sentence - having indicated a top sentence of one year in county jail - with the understanding that the actual sentence would not be determined until after the court considered the probation report.
Furthermore, the plea form stated: "The Court reserves the right to withdraw its consent to any sentence imitation [sic] agreement, and in that event, I will be permitted to withdraw my plea(s) of guilty or nolo contendere and all charges will be reinstated." (Italics added. Strike-through in original.) Why was a line placed through those words? Because while a negotiated and conditional plea allows the defendant to withdraw the plea if the sentence is harsher than what was promised, an open and unconditional plea does not allow the defendant to withdraw the plea if the court imposes a sentence harsher than the indicated sentence. (See People v. Hoffard (1995) 10 Cal.4th 1170, 1181-1182.) Indeed, although not entirely legible, a note in the margin next to the stricken language appears to refer specifically to an "indicated sentence."
Second, the discussion at the plea hearing evinces that the plea was open with an indicated sentence. When defense counsel requested that Golden be released on his own recognizance given his incarceration for nearly a year, she never stated that a one-year term was a promised or negotiated part of the plea agreement. And when the prosecutor advised that it had "sought a two-year top" and agreed to Golden's release on his own recognizance while "preserving our request for a two-year top sentence" - a position that would have made no sense if the one-year term had been promised - defense counsel never objected to the prosecutor's characterizations. (Italics added.)
Third, the discussion at the sentencing hearing confirms that Golden pled open with an indicated sentence. Golden's attorney said she was prepared to submit on the "indicated sentence," the court replied that it was "not going to follow the indicated sentence," and Golden's attorney stated "we understand" without objection. (Italics added.) The prosecutor then represented that "the People's offer at the time of the pretrial was an indicated low term of 2-year top and refer [to probation] and the Court gave an indicated [sentence of] no state prison and the Court referred this to Probation," and no objection was made to the prosecutor's characterization of the plea arrangement. (Italics added.) Finally, the court stated that it "did indicate 1 year top and refer," and explained that the referral to the probation department was to obtain further information about Golden in order to "make a reason[ed] and well-thought-out decision with respect to an appropriate sentence." (Italics added.) In short, the record demonstrates consistently and unequivocally that the sentencing court, defense counsel, and the prosecutor all understood and agreed that the one-year county jail term was merely an indicated sentence from which the court could deviate after reviewing the probation report, and there is no hint in the record that Golden ever understood otherwise.
2. Appellant's Arguments
Golden nonetheless insists that his plea included a negotiated sentence rather than an indicated sentence. First, he argues, it could not have been an indicated sentence because he did not plead guilty to all the charges. (Citing Clancey, supra, at p. 570; People v. Feyrer (2010) 48 Cal.4th 426, 434, fn. 6 ["A trial court may provide the defendant an 'indicated sentence' if he or she pleads guilty or no contest to all charges and admits all allegations"].) The argument is unavailing. There is no rule precluding the court from indicating a sentence with respect to charges to which the defendant is pleading with prosecutorial agreement, even if they do not constitute all the charges in the case. The point Clancey was making is that it cannot be the court that negotiates what charges the defendant will plead to; if the defendant has pled guilty to all the charges, there is no possibility the court negotiated anything away, so the court's proposed sentence must be an indicated sentence rather than part of an impermissible judicial plea bargain. As respondent asserts, a defendant may plead to one or more of the charges, benefit from the dismissal of other charges, and leave the sentence to the discretion of the court, under the circumstances of this case.
Second, Golden argues, the court did not provide a "contingency for imposition of the one-year sentence—'a given set of facts' that would justify the sentence if 'confirmed'—a hallmark of an indicated sentence." (Citing Clancey, supra, 56 Cal.4th at p. 570.) Instead, Golden insists, his plea "contained an inducement, by offering a more lenient sentence than what could be obtained through plea negotiations with the prosecuting authority-wholly inconsistent with an indicated sentence." (Citing id. at p. 575.)
Golden is incorrect. There was a contingency for imposition of the one-year sentence: that Golden enter a no contest plea to count one and the probation report support the sentence. And certainly the court was not offering a more lenient sentence than what could be obtained through plea negotiations with the prosecutor, since the prosecutor signed the plea form and agreed that Golden could plead no contest to count one and the sentence would be whatever the court decided after review of the probation report. (Indeed, the sentence turned out to be what the prosecutor sought at the hearing.)
Third, Golden points to Judge Forcum's statement at the plea hearing that if Golden violated the terms of his release on his own recognizance, "Judge Davis's plea bargain doesn't need to be followed and he can go higher than a year." (Italics added.) But this statement was not made by the judge who presided over the plea negotiations and the sentencing, but the judge who was releasing Golden on his own recognizance. As such, his point was to admonish and encourage Golden to abide by the terms of his release, not to provide a legal definition of the nature of the plea agreement. In any event, regardless of Judge Forcum's statement, it is plain from the plea form and the statements of the prosecutor, defense counsel, and sentencing court, that the one-year term was an indicated sentence and not a promise as part of a judicial plea bargain.
C. Specific Performance
Golden contends that he is entitled to specific performance of his one-year term under section 1192.5. "Under section 1192.5, if a plea agreement is accepted by the prosecution and approved by the court, the defendant 'cannot be sentenced on the plea to a punishment more severe than that specified in the plea.' " (People v. Masloski (2001) 25 Cal.4th 1212, 1217.) But because Golden's plea form reflected an open plea with an indicated sentence, Golden was not sentenced to more than what was specified in the plea form, and he is not entitled to enforcement of the one-year term. (Or, to put it a little differently, specific performance of the plea form would not entitle him to a sentence less than what he received from the court.) (See also Hoffard, supra, 10 Cal.4th at pp. 1181-1182 [§ 1192.5 does not apply to open pleas].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.