Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF162894A & TCF124538, Gerald F. Sevier, Judge.
Phillip J. Cline, District Attorney, Don Gallian and Carol B. Turner, Assistant District Attorneys, Barbara Greaver and Todd Hayward, Deputy District Attorneys; Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
HILL, J.
INTRODUCTION
Over the prosecutor’s objection, defendant Baltazar Gomez entered no contest pleas, in superior court case no.VCF162894A, to two counts of assault with a firearm, one count of criminal threats, and one count of negligent discharge of a weapon, and admitted a violation of probation in superior court case no. TCF124538 in exchange for a court offered prison sentence of 11 years. In taking defendant’s pleas to the charges in case no. VCF162894A, the trial court had defendant admit some but not all the enhancements alleged by the People. When the prosecutor pointed this out, the trial court suggested that it did not make any difference since defendant’s sentence was going to be 11 years in any event. The court never formally dismissed the unpled enhancements and subsequently sentenced defendant, over the prosecutor’s objection, to 11 years in prison on the pled offenses and enhancements. It appears the trial court later tried to rectify its failure to dispose of all the enhancement allegations by issuing an order recalling defendant’s sentence and ordering defendant returned for resentencing. The trial court later withdrew its order and took the matter off calendar based on objections by the parties.
Both sides have filed separate appeals. In appeal no. F050649, the People contend the trial court improperly “dismissed” the unpled enhancements without giving a statement of reasons on the record, engaged in unlawful plea bargaining with defendant, and erroneously stayed the gang enhancement when sentencing defendant on count 1 assault with a deadly weapon. In appeal no. F050799, defendant contends the trial court erred in imposing a $400 restitution fine in his probation violation case. For reasons discussed below, we agree with the People’s contention that the trial court’s actions in this case amounted to improper judicial plea bargaining and therefore conclude the judgment must be reversed and remanded with directions to allow defendant to withdraw his pleas and corresponding admissions and to reinstate the charges.
On the court’s own motion, in the interests of judicial economy, we consolidate appeal nos. F050649 and F050799 for purposes of decision.
FACTUAL AND PROCEUDRAL BACKGROUND
The following factual summary is taken from the probation officer’s report and is presented solely for informational purposes as the facts underlying the offenses are not directly relevant to the issues raised on appeal:
“Circumstances of the current offense indicate the defendant and co-defendant [Lolesio] Tonga, went to a residence [on April 11, 2006] in an attempt to contact a subject who had beaten up Tonga’s brother. The defendant became involved in a verbal altercation with victims Shelly Bullard and Shelly Howard. The defendant returned to the residence at a later time and threatened the victim with a firearm stating he would shoot them and he would be back to shoot their homes. In another incident [on October 30, 2005], the defendant and co-defendant Tonga made contact with victims Joey Battiste and Lasha C[a]rolina at their residence. The defendant attempted to retrieve a television that he stated he had purchased. The defendant involved himself in a verbal altercation with victim Battiste and during the incident; he pulled a gun from his waistband and pointed it at the victims. He then discharged the firearm into the air. The defendant denied possession of a firearm in both incidents.”
On April 18, 2006, a complaint was filed charging defendant with two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1 & 3), one count of criminal threats (§ 422; count 2), and one count of negligent discharge of a firearm (§ 246.3; count 4). With respect to each count, the complaint alleged defendant had suffered one prior strike conviction (§ 1170.12, subd. (c)(1)) and one prior serious felony conviction (§ 667, subd. (a)(1)), and that the current offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). With respect to counts 1 and 3, the complaint alleged defendant personally used a firearm in the commission of the offenses (§ 12022.5, subds. (a), (d)).
Further statutory references are to the Penal Code unless otherwise specified.
The preliminary hearing was held on May 2, 2006. At the conclusion of testimony, the trial court indicated a sentence of 11 years and allowed defendant until the next day to decide whether to enter a plea.
At the beginning of the hearing on May 3, 2006, the defense announced its desire to enter a plea. The prosecutor interjected, “Your Honor, before you do that, I believe there is going to be a reversible error.” The prosecutor then cited section 1192.7, subdivisions (a) and (b), and argued that, under this statute, the court was “not to plea bargain a felony strike case.” The trial court responded: “[Prosecutor], you’re entitled to your opinion, but the Court has not plea bargained. The Court has sentenced using the Penal Code. Thank you for your opinion, but go ahead and state your other objections.”
The prosecutor noted that count 1 included a personal firearm use enhancement, which would add to defendant’s sentence an additional 3, 4, or 10 years. The trial court responded: “I agree. That is the potential consequence if [defendant] is convicted at trial.” The prosecutor then asserted that “mathematically” the trial court could not arrive at its indicated sentence of 11 years “without striking a strike” and argued the court had no justification for doing so. The court replied that it was “not striking the strike.”
The prosecutor then returned to the personal firearm use enhancement: “The 12022.5, the Court cannot strike that, and that has to be mandatory consecutive.” The court asked why it could “not stay the sentence.” The prosecutor responded, “Under 12022.5, my understanding is that the court – that’s one of the allegations the Court cannot at this stage strike.” The court then asked the prosecutor what authority he had for his position. The prosecutor replied, “The language itself.” The court was unconvinced, as reflected in the following exchange:
“THE COURT: What’s your authority for that? I can read as well as anyone else in the courtroom. I would like to see the authority you’re citing.
“[THE PROSECUTOR]: 12022.5(a) indicates –
“THE COURT: Just a moment, please. Thank you. All right. Go ahead.
“[THE PROSECUTOR]: It indicates that defendant shall be punished to an additional and consecutive term of imprisonment in state prison for three, four, or ten years.
“THE COURT: Yes.
“[THE PROSECUTOR]: It does not give discretion to the Court.
“THE COURT: Where is that not given to the Court?
“[THE PROSECUTOR]: It says ‘shall be punished.’ That is mandatory, your Honor.
“THE COURT: You don’t have any other authority other than that? Is that right or wrong?
“[THE PROSECUTOR]: At this time, no. I’ll tell you within our office it’s common knowledge, and I am sure I can give that authority—
“THE COURT: I’ll tell the Fifth District that. Certainly trial judges are obligated to take judicial notice of opinions of any internal laws of the District Attorney’s office. Come on, [prosecutor], you can do better than that.
“[THE PROSECUTOR]: Okay. There’s one last thing. The People don’t understand why this Court is trying to get this defendant back on the streets as soon as possible.
“THE COURT: [Prosecutor], unless you have something lawyerlike to present to the Court, the Court’s going to send somebody to prison for 11 years. Please, go ahead.
“[THE PROSECUTOR]: He’s looking at a midterm of 30 years and eight months.
“THE COURT: Is there anything else?
“[DEFENSE COUNSEL]: Your Honor, just briefly, I think the way the Court got to the indicated sentence was Count 1 is –
“THE COURT: I assume that wasn’t intentional, [prosecutor]?
“[THE PROSECUTOR]: That’s correct.
“[DEFENSE COUNSEL]: “Two, three and four, the midterm would be doubled, plus the Court was going to impose five, and that totals 11 years. I think it is mathematically possible.…”
The trial court then took defendant’s plea. The court began by advising defendant:
“THE COURT: I’ve indicated for your early plea, considering the circumstances, and I took the time to hear the preliminary hearing in this matter as well as the People’s offer of proof in the preliminary hearing. I am taking that all into consideration.
“I’m telling you if you plead guilty or no contest, I would not sentence you for such a plea at this stage in the proceedings to any more than 11 years. Do you understand this does not mean you will be released to the streets? This means you’re looking at 11 years in state prison.
“THE DEFENDANT: Yes, sir.”
Thereafter, defendant entered no contest pleas to the four felony counts and admitted the probation violation. With respect to the enhancement allegations, defendant admitted the personal firearm use allegations in counts 1 and 3. He also admitted the prior conviction allegations and gang allegation in count 1.
Defendant did not admit the prior conviction and gang allegations in counts 2 through 4, leading to another exchange between the court and the prosecutor:
“[THE PROSECUTOR]: What about the special allegations in Counts 2, 3, and 4?
“THE COURT: As I understand it, they can only be used once.
“[THE PROSECUTOR]: No, they can be used more than once. These are separate 654 crimes. The gang allegations can apply to each. The strike can apply to each. The 667(a)(1) can only be used once.
“THE COURT: Given my indicated sentence, it really doesn’t serve any purpose if the Court has err[ed] in some way, that doesn’t prejudice the People .…”
On May 10, 2006, the People filed a brief entitled “People’s Brief Re Status of Negotiated Plea,” which was essentially a written objection to the trial court’s actions. The People therein argued that the trial court violated section 1192.5 by entering a plea bargain with defendant without the requisite consent of the prosecutor, and requested that the court set aside the plea bargain and permit defendant to enter new pleas. With respect to the unpled enhancements, the People argued: “The Court did not purport to dismiss pursuant to Section 1385 any of the specific enhancements charged against Gomez. Nor has the Court articulated any reasons for the dismissals, as would be required under Section 1385. (Cal. Pen. Code § 1385(a), (c).) Moreover, Section 1385 does not authorize dismissal of the personal-use allegation in Count 3. (Id. § 12022.5(c).) Accordingly, the Gomez bargain cannot be explained by reference to Section 1385.”
The matter came on for sentencing on June 5, 2006. A different prosecutor appeared on behalf of the People. After the trial court denied defendant’s motion to strike his prior strike conviction, the prosecutor noted that it did not appear the court had taken defendant’s admissions to all the enhancement allegations at the previous change-of-plea hearing. The following discussion ensued:
“THE COURT: Let’s see. Well, I didn’t, and if [defendant] wants to withdraw his plea and go to trial, we can do that because I didn’t take admissions. If he wants to make admissions –
“[DEFENSE COUNSEL]: So that would – that would be for the indicated sentence; is that what the recommendation of the probation officer is?
The probation officer’s report reflects a recommended sentence of 11 years based on defendant’s plea and calculated as follows: a total of nine years for count 1 (the midterm of three years, doubled to six years as a second strike, plus three years for the personal firearm use enhancement, with the two five-year prior conviction and gang enhancements stayed), three consecutive eight-month terms for counts 2 through 4 with the three-year firearm use enhancement in count 3 stayed, and a concurrent two-year term for the probation violation case.
“THE COURT: Well, I can’t arrive at the indicated sentence without admissions. If he wants to take – if he wants to submit the plea, then I’m in a position to determine whether or not I’m going to follow my indicated. So if he wants to withdraw his plea and go to trial, that’s fine. If he has to make the admissions, then I’ll consider whether or not I’ll give him the indicated. If I decide not to give him the indicated, then, of course, he’d have a right to withdraw his plea.
“[DEFENSE COUNSEL]: So the court’s saying if he wants to take the risk of getting more than 11, he would then enter a plea?
“THE COURT: No, no.
“[DEFENSE COUNSEL]: Oh.
“THE COURT: I’ve given an indicated.
“[DEFENSE COUNSEL]: Right.
“THE COURT: For whatever reason, I didn’t take admissions.
“[DEFENSE COUNSEL]: Right.
“THE COURT: I’m certainly not going to give him any less than 11 years, what I indicated. So what I’m saying is if he wants to withdraw his plea and go to trial, fine. If he wants to make the admissions at this time, then I’m legally in a position to tell him whether or not I’m going to follow my indicated.
“(Whereupon, the defendant was conferring with his attorney off the record.)
“[DEFENSE COUNSEL]: His question is, your Honor, if he enters pleas, will the court be in a position if the court does not want to give him the 11 years then to withdraw that plea?
“THE COURT: Well, if – I’ve told him, I told him that if he pled as charged, I – my indicated was 11 years.
“[DEFENSE COUNSEL]: Correct.
“THE COURT: If he admits, makes the admissions that I should have taken and didn’t and I go beyond 11 years, then, of course, he has the right to withdraw his plea.”
After consulting with defendant, defense counsel stated that defendant was “going to go ahead and enter pleas to the special allegations on the other counts that appear to be missed last time.” However, after the trial court started reviewing the pleas it had taken previously, the court appeared to reconsider its position and decided it was not necessary to take defendant’s admissions to the remaining enhancement allegations in counts 2 through 4:
“THE COURT: All right. It doesn’t look like I took a plea to the strike.
“[DEFENSE COUNSEL]: You did on Count 1.
“THE COURT: I did?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Well, so then I didn’t take a plea as to the 186.22(1)(b) apparently.
“[DEFENSE COUNSEL]: On Count 1, you took pleas to all the special allegations. It’s just the trailing counts, I don’t believe.
“THE COURT: I see. Oh, I see what I did. I was looking at the plea transcript for [defendant’s codefendant]. [¶] All right. Then really, it doesn’t make any difference, okay.” (Italics added.)
The trial court did not take defendant’s admissions on the special allegations but proceeded to sentence defendant as follows:
“THE COURT: …[Defendant], this is a close call. You – the District Attorney has aptly described your conduct and aptly and properly described a concern that any person would have with somebody like you who’s a bully and you’re a bully.
“I heard the preliminary hearing in this matter, and while legally, there’s certainly a basis to proceed to trial on the gang allegations, and it might well be that a trier of fact would find that the special gang allegations were true beyond a reasonable doubt, given the totality and the fact 11 years is a long time, I’m going to follow my indicated sentence. [¶] … [¶]
“This is certainly not an appropriate case for a grant of probation. You were on probation at the time of the commission of the offense. So probation is denied.
“Count 1, you’re committed to state prison for the midterm of three years. I’m not finding that the – I’m not finding any mitigating circumstances in this case other than you did acknowledge responsibility at an early stage.
“There are certainly aggravating circumstances that are well documented in the record. I’m choosing the midterm after weighing both. I find that that’s the appropriate term. Because of the strike, it’s doubled, six years.
“I’m imposing an additional and consecutive five years pursuant to Penal Code Section 667(a)(1). I’m imposing three years on the 12022.5(a). While you did have a firearm, at least it was discharged in the air. Most certainly, you displayed it in a menacing and intimidating manner and threatened to use it in the future. That three years is stayed. The 186.22(b)(1), it’s five years. That’s stayed.
“Count 2, two years concurrent with Count 1; the 245, three years concurrent with Count 1.
“Count 4, two years concurrent with Count 1, and in case number 124538 [the probation violation case], in Count 1, two years concurrent with Count 1 in the other case; on the misdemeanor, one year concurrent; total term is 11 years. [¶] … [¶]
“[THE PROSECUTOR]: Your Honor, just note for the record the People would object to the staying of 12022.5 and the 186.22 and would have requested the court to impose the sentencing on the remaining counts under the strike law of doubling the base term, and the People feel because they are separate incidences [sic] and separate victims – there are separate victims in each of the charges, but separate instances as to – believe it’s Count 3 is a separate date from Counts 1 and 2, that there should be consecutive sentencing as opposed to concurrent.
“THE COURT: Yes, I understand the People’s position, and the bottom line is the reason I’m not imposing more than 11 years in totality is that while Mr. – this is not to mitigate, but it’s – it’s a factor in the court’s consideration, while he armed himself with a weapon, while he threatened people, while he bullied them and engaged in the other conduct that’s been described, he certainly had the opportunity to go beyond that, and he did not impose any actual harm, although certainly great psychological harm was inflicted that is immeasurable, but at least he didn’t take the next step, and that’s the only reason that I’m going with this ultimately.…”
It appears from the augmented record that, after both sides timely filed notices of appeal, the trial court issued an order, dated August 30, 2006, recalling defendant’s sentence, and ordering defendant be returned to the trial court for resentencing. The order explained: “It has been brought to the court’s attention that the court did not resolve the allegations in Count 1 as to the Special Allegations of Penal Code section 186.22(b)(1)(B) or the Strike allegations in Counts 2, 3 and 4. The court is required to do so and for this reason the court issues this order.” However, at a subsequent hearing on September 22, 2006, the trial court withdrew its order recalling defendant’s sentence, and ordered the matter off calendar noting both sides had raised objections and did not consent to the trial court resentencing defendant. Accordingly, the trial court determined that the matter would have to “be resolved by the Court of Appeal.”
DISCUSSION
I. Unlawful plea bargaining
The central question on appeal is whether the trial court engaged in unauthorized judicial plea bargaining or gave defendant an indicated sentence which did not require the prosecutor’s consent.
Section 1192.7, subdivision (b) provides that “‘plea bargaining’ means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.” (Italics added.)
“The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604-608.) Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. (People v. West, supra, 3 Cal.3d at p. 604.) This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People’s acceptance of a plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or kind (People v. West, supra, 3 Cal.3d at p. 608), or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the ‘bargain’ worked out by the defense and prosecution. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West, supra, 3 Cal.3d at pp. 607-608.) But implicit in all of this is a process of ‘bargaining’ between the adverse parties to the case – the People represented by the prosecutor on one side, the defendant represented by his counsel on the other – which bargaining results in an agreement between them. (See People v. West, supra, 3 Cal.3d at pp. 604-605.)” (People v. Orin (1975) 13 Cal.3d 937, 942-943.)
The trial court “has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor’s consent to the proposed disposition, [fn. omitted] would detract from the judge’s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge’s participation in the matter. [Citation.]” (People v. Orin, supra, 13 Cal.3d at p. 943.)
Although it appears the trial court originally intended to give defendant an indicated sentence, other aspects of the case bring defendant’s plea more within the framework of a traditional plea bargain. To obtain an indicated sentence, a defendant admits all charges and special allegations such that “all that remains is the pronouncement of judgment and sentencing.” (People v. Vessell (1995) 36 Cal.App.4th 285, 296; see also People v. Allan (1996) 49 Cal.App.4th 1507, 1516.) An indicated sentence involves no bargaining because no charges are reduced or dismissed that require the prosecutor’s consent; the prosecutor is still allowed to contest the indicated sentence. (People v. Allan, supra, 49 Cal.App.4th at p. 1516; People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271.) Here, defendant clearly did not plea to all charges. He did not admit the prior conviction and gang enhancement allegations in counts 2 through 4, and the prosecutor strongly objected to the dismissal of any of the enhancements.
In addition, the trial court’s comments during the change-of-plea hearing reflect a commitment to imposing an 11-year sentence on its own motion, regardless of subsequent facts, argument, or probation department recommendations. These comments violated the principles of an indicated sentence. “An indicated sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made.” (People v. Delgado (1993) 16 Cal.App.4th 551, 555 (Delgado) [appellate court found that the trial court gave an indicated sentence based on the fact that the court retained its discretion to change its sentencing choice after review of the probation report and statement from the victim]; italics added.) In contrast to Delgado,the court’s failure to take defendant’s admissions to all the enhancements effectively prevented further review by the probation department of the court’s sentencing choice; when the case was forwarded to the probation officer for sentencing recommendation, she was limited to reviewing the pled charges and enhancements.
The trial court’s sentencing comments do appear to reflect a realization by the court that it should have taken defendant’s admissions to all the allegations and admonished defendant that if it took his admissions, the court had the discretion to impose a higher sentence, in which case defendant could withdraw his plea. At the same time, however, the court appeared to make statements reassuring defendant it would not exercise such discretion but would stand by its indicated sentence if defendant admitted the allegations (“Well, if – I’ve told him, I told him that if he pled as charged, I – my indicated was 11 years”) and it appears defendant was prepared to admit the allegations for this reason. However, the trial court went on to determine it was unnecessary to take defendant’s admissions because it was going to impose 11 years in any event, thus demonstrating further the trial court’s commitment to a predetermined result and showing this was something more than an indicated sentence.
“The traditional role of the judge, as envisioned by Penal Code section 1192.5, is one of approving of disapproving dispositions arrived at by counsel for defendant and the district attorney, who is the duly elected representative of the People. When the judge steps out of that role and bargains directly with the defendant as to the manner in which the judge’s discretion will be exercised the dignity of the judiciary is impaired and public confidence in the judiciary is diminished.” (People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 914.)
On this record, the fundamental principles behind plea bargaining were violated. Accordingly, the judgment must be reversed and the parties returned to the status quo ante. The matter therefore is remanded with directions to allow defendant to withdraw his pleas and corresponding admissions and to reinstate the charges.
II. Other contentions of error
Since we find an improper plea bargain, we need not discuss the People’s contention the trial court improperly stayed (rather than striking or imposing) the gang enhancement in count 1, or defendant’s argument that a $400 restitution fine was improperly imposed in his probation violation case. These, and similar matters which may arise on remand, may more appropriately be addressed by the trial court at that time.
Although the People concede the merit of defendant’s argument with respect to the restitution fine, we are unable to accept the concession because the record reflects that defendant’s admission in the probation violation case (case no. TCF124538) was not entered separately but pursuant to the trial court’s 11-year “indicated sentence” in case no. VCF162894A, which, for reasons explained above, we have concluded amounted to an improper plea bargain. Accordingly, the judgment as to both cases must be reversed.
DISPOSITION
The judgment of conviction in superior court case nos. VCF162894A and TCF124538 is reversed and remanded with directions to allow defendant to withdraw his pleas and corresponding admissions, to reinstate the original charges, and conduct such further proceedings as may be appropriate.
WE CONCUR: GOMES, Acting P.J., KANE, J.