Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, David. J. Danielsen, Judge. Reversed and remanded with directions. No. SCD191772
O'ROURKE, J.
Jamon Hampton was charged with conspiracy to commit burglary (Pen. Code, § 182, subd. (a)(1); count 1) and attempted burglary (§§ 459; 664; count 2). In both instances it was alleged he was an unarmed principal who committed the offense in association with a criminal street gang (§§ 186.22, subd. (b)(1), 12022, subd. (a)(1)). He pleaded guilty to the count 1 conspiracy charge and admitted a gang enhancement (§ 186.22, subd. (b)(1)) and a strike prior conviction (§ 667, subd. (b)) based on a juvenile court adjudication of conspiracy to commit murder. The court sentenced him to six years in prison as follows: double the midterm of two years for the conspiracy, and a two-year enhancement for the gang enhancement.
All statutory references are to the Penal code unless otherwise specified.
Hampton contends the court: (1) violated his plea agreement when it did not impose a lesser sentence it had referenced in a pre-sentencing hearing; and (2) violated his due process rights when it used a juvenile adjudication as a strike prior conviction. We reverse the judgment and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying crime are not relevant to the limited issues raised in this appeal.
In June 2005, police officers responding to a call to a local market and gas station, found Hampton and three other men near a Ford Expedition. The officers found a pry bar on the ground several feet from the entrance to the market, and wire cutters in the pocket of one of the men. Inside the Expedition, officers found a crow bar, flashlights, and a notebook containing addresses of markets in the area. They also found a.25-caliber handgun under the vehicle. On the market's roof, officers discovered the alarm system wires exposed, a damaged alarm box, and a repositioned surveillance camera.
At a June 26, 2006 change of plea hearing, the following exchange between Hampton and the court occurred:
"[The Court:] I see you are going to plead guilty to the charge Count One. And you are going to be admitting the truth of the gang allegation and admitting the truth of the strike prior. And in exchange for that plea, everything else, then, gets dismissed, and in exchange for that plea, the District Attorney's Office has agreed that they will not argue for more than six years prison at the time of the sentencing hearing. That's the deal with the D.A.
"I told your lawyer that, from me, I think the worst that it would be would be four years eight months state prison but that I would consider less, based upon everything that's presented.
"Is that your understanding of what the deal is with the D.A. and what I told your lawyer I was prepared to do?
"[Hampton:] Yes."
The court pointed out that Hampton faced a maximum penalty of 8 years in prison because of the gang enhancement allegation and reiterated: "And the D.A. has already said it's not going to be worse than six. And I said it's not going to be worse than four years eight months."
The "plea of guilty/no contest" form states "I have not been induced to enter this plea by any promise or representation of any kind." Handwritten beneath that statement is a crossed out clause — "court indicates 4 y 8 m lid (16 months low term count 1, doubled for prior strike, plus 2 years for gang allegation)" — which is replaced with, "6 year lid." The court accepted Hampton's guilty plea to conspiracy to commit burglary and the admissions to the gang allegation and the strike prior based on a juvenile adjudication.
At the October 11, 2007 sentencing hearing, a different prosecutor was present and held this exchange with the court:
"[Prosecutor:] With regard to the term that is appropriate in this case, understanding that the Court gave an indicated [sentence], it is my understanding that as far as I – the People's promises were made, it was not a stipulation or lid given to by the People? Correct, Your Honor?
"[The Court:] I would interpret this agreement that [another prosecutor] authorized as being a six-year-lid. It didn't say that it was a Court-indicated lid."
DISCUSSION
I.
Hampton contends the court violated the plea agreement when it sentenced him to a six-year prison term after "promising" him a term of four years and eight months. He asserts the lesser sentence was an inducement to enter into the plea bargain, and the court's failure to impose it was a breach of contract. He seeks specific enforcement of a sentence of four years and eight months or an opportunity to withdraw his plea.
A plea agreement is a contract between the defendant and the prosecutor to which the court consents to be bound. (People v. Segura (2008) 44 Cal.4th 921,931 (Segura).) Interpretation of a plea agreement is guided by contract principles; the courts look to the language and circumstances of the agreement to ascertain the parties' intent and with a view to carrying out the parties' reasonable expectations. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) " 'When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." (Segura, supra, at pp. 930-931.) "The [United States] Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy." (People v. Mancheno (1982) 32 Cal.3d 855, 860; accord, People v. Walker (1991) 54 Cal.3d 1013, 1024 ["When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement"].)
"[T]he 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, 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." (People v. Orin (1975) 13 Cal.3d 937, 943, footnote omitted.) "A court may not offer any inducement in return for a plea of guilty or nolo contendere.... Leniency in return for a plea of guilty or no contest must be negotiated by the defendant with the prosecutor." (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276.)
"[T]he trial court may decide not to approve the terms of a plea agreement negotiated by the parties. [Citation.] If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' " (Segura, supra, 44 Cal.4th at p. 931.)
Hampton and the People were the sole parties to the plea bargain. They expressly agreed to a maximum sentence of six years. Nonetheless, the trial court impermissibly interjected itself in the plea bargain process and offered Hampton a different — and more lenient — sentence, which was slightly more than one-half of the maximum possible 8-year sentence. The trial court even held out the promise that it "would consider [a] less[er]" final sentence. We conclude that the substantial difference between the People's offer and the trial court's offer was a material term of the plea negotiations. The trial court's offer likely induced Hampton to agree to the plea agreement, which was made more attractive because it originated from the trial court's direct involvement in the negotiation. (Accord, People v. Orin, supra, at p. 943 [warning that judicial activity in the plea negotiation process "would present a substantial danger of unintentional coercion of defendant who may be intimidated by the judge's participation in the matter"].)
"Specific enforcement of a particular agreed upon disposition must be strictly limited because it is not intended that a defendant and prosecutor be able to bind a trial court which is required to weigh the presentence report and exercise its customary sentencing discretion." (People v. Kaanehe (1977) 19 Cal.3d 1, 14.) Here, specific performance is not appropriate because it would deprive the trial court of the discretion to take into account all the circumstances contained in the presentence report. We note that the crossed out clause on the plea form makes it ambiguous whether the change to a 6-year lid was made at the entry of the plea, while the trial court was orally promising the maximum lid would be four years 8 months. Under these circumstances, we remand to give Hampton an opportunity to withdraw his plea.
II.
Hampton's sentence was doubled pursuant to the "two strikes" law (§ 667, subd. (e)(1)) based on his admission of a prior juvenile court adjudication of conspiracy to commit murder (§ 667, subd. (d)(3)). Hampton argues the use of his prior juvenile court adjudication denied him his due process and trial by jury rights guaranteed under the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution. After briefing was completed in this case, the California Supreme Court decided People v. Nguyen (2009) 46 Cal.4th 1007, and held that those constitutional Amendments "do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial." (Id. at p. 1019.)
DISPOSITION
The judgment is reversed and the cause remanded to the trial court with directions to permit Jamon Hampton to withdraw his guilty plea within 30 days after the remittitur is filed in the trial court. If no such motion is filed, the trial court shall reinstate the original judgment.
WE CONCUR: McDONALD, Acting P. J., IRION, J.