Opinion
A149774
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. DESHAWN K. JOHNSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR313506)
When he was 17 years old, Deshawn K. Johnson was charged with second degree robbery (Pen. Code, § 211) and other offenses relating to two armed robberies of pizza restaurants in Fairfield, California. Johnson was charged in adult criminal court and convicted upon his plea of no contest to one count of second degree robbery (§ 211), and one count of assault with a semiautomatic firearm (§ 245, subd. (b)). His sentence included a 10-year enhancement for personal use of a firearm (§ 12022.53, subd. (b)), and he was sentenced to 15 years in state prison.
All undesignated statutory references are to the Penal Code.
While Johnson's appeal was pending, two statutory changes took effect which, when applied retroactively, potentially ameliorate his punishment. First, the electorate passed the Public Safety and Rehabilitation Act of 2016 (Proposition 57), which eliminated a prosecutor's authority to file criminal charges against a juvenile directly in adult court. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) Second, the Legislature amended Penal Code section 12022.53, subdivision (h), to permit courts to strike or dismiss a firearm enhancement in furtherance of justice. (People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 (Robbins).) These changes apply retroactively to Johnson and, therefore, we conditionally reverse the judgment. However, we reject Johnson's arguments that he is entitled to withdraw his plea.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts relevant to the issues on appeal. We provide additional factual and procedural details in the discussion of Johnson's specific claims.
On January 27, 2015, an armed robbery occurred at a Mary's Pizza Shack restaurant, and a Round Table Pizza restaurant was robbed on February 28, 2015. Johnson was a former employee of Mary's Pizza Shack, and he was a Round Table Pizza employee at the time of the second robbery. Johnson was arrested the day of the Round Table Pizza robbery, after a traffic stop in Vallejo, California, for traffic violations. In Johnson's car, police located a handgun and ammunition. The handgun found in the car was alleged to be the gun used in both robberies.
On March 2, 2015, the Solano County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602) against Johnson alleging, among other charges, misdemeanor possession of metal knuckles (§ 21810), and felony possession of a firearm by a minor (§ 29610). On March 6, 2015, Johnson admitted those allegations, and the other charges were dismissed. Johnson's dispositional hearing was continued several times due to the pendency of the adult charges at issue here. Nothing in the record indicates Johnson's dispositional hearing has occurred to date.
On March 23, 2015, the Solano County District Attorney directly filed charges relating to the two robberies against Johnson in adult court. As a result of the Mary's Pizza Shack robbery, the prosecutor charged Johnson with second degree robbery (§ 211; count 1), second degree commercial burglary (§ 459; count 2); and criminal threats (§ 422; count 3). Based on the Round Table Pizza robbery, the prosecutor charged Johnson with second degree robbery (§ 211; count 4), second degree commercial burglary (§ 459; count 5), assault with a semiautomatic firearm (§ 245, subd. (b); count 6), criminal threats (§ 422; count 7), and two counts of exhibiting a firearm (§ 417, subd. (a)(2); counts 8, 9). Counts 1 to 7 were alleged to be serious and violent felonies. (§§ 1192.7, subd. (c); 667.5, subd. (c).) As to these counts, it was alleged Johnson personally used a firearm (§§ 1203.06, subd. (a)(1); 12022.5; 12022.53, subd. (b)).
Based on his pending juvenile case, Johnson filed a motion to dismiss the adult charges pursuant to Kellet v. Superior Court (1966) 63 Cal.2d, 822, 825-827, which precludes multiple prosecutions for the same course of conduct. The trial court denied the motion.
Appearing before Judge Robert C. Fracchia, on August 12, 2015, Johnson pleaded no contest to second degree robbery (§ 211; count 4), assault with a semiautomatic firearm (§ 245, subd. (b); count 6), and he admitted personally using a firearm during the February 28, 2015 robbery (§ 12022.53, subdivision (b)). The court granted the prosecutor's motion to dismiss the remaining charges and allegations.
Almost six months later, on February 8, 2015, Johnson moved to withdraw his plea. The prosecutor opposed the motion. A different judge, Judge E. Bradley Nelson, held two evidentiary hearings on the motion in June and July 2016. In September 2016, Judge Nelson denied the motion to withdraw. In October 2016, Judge Nelson sentenced Johnson to 15 years in state prison.
Johnson timely appealed. The court granted Johnson's request for a certificate of probable cause to appeal the court's denial of his motion to withdraw his plea.
DISCUSSION
On appeal, Johnson makes five arguments. First, he argues the judgment should be reversed based on Proposition 57. Second, Johnson contends he was "denied the ability to be sentenced by the judge who took his plea in violation of his . . . rights" under People v. Arbuckle (1978) 22 Cal.3d 749, 756-757 (Arbuckle). Third, Johnson argues he is entitled to withdraw his plea because the court denied him "the benefit of his plea agreement by imposing a five-year parole period." Fourth, Johnson argues the court abused its discretion by denying his motion to withdraw his plea, and his trial counsel was ineffective. Fifth, Johnson contends his case must be remanded "to permit the court to exercise its discretion to strike the firearm enhancement."
We find the trial court did not abuse its discretion in denying Johnson's motion to withdraw his plea, and Johnson is not entitled to withdraw his plea based on the sentencing court's statement regarding Johnson's parole. Nonetheless, we agree with Johnson that, as a result of Proposition 57, his convictions must be conditionally reversed and the case remanded to the juvenile court to determine whether he is suitable for trial in adult court. If the juvenile court so determines, then, as a result of Senate Bill No. 620 (2017-2018 Reg. Sess.), at Johnson's resentencing hearing before Judge Fracchia, the trial court shall determine whether to exercise its discretion to strike Johnson's firearm enhancement.
I.
Johnson Is Not Entitled to Withdraw His Plea Based on the Sentencing Court's Statement
Regarding the Length of Johnson's Parole Period
Johnson argues he is entitled to withdraw his plea because it "included the agreement that he would be subject to a three-year parole period after his release from prison," but the sentencing court stated his parole period would be five years. Johnson contends that by "imposing" an additional two years of parole, the trial court deviated significantly from the agreed plea bargain. In his reply brief, Johnson also argues that, at sentencing, he was "misadvised . . . of the parole consequences" of his sentence. We are not persuaded the sentencing court's statement entitles Johnson to withdraw his plea.
A. Johnson's Change of Plea and Sentencing Hearings
On August 12, 2015, Judge Fracchia advised Johnson he "would be subject to parole supervision upon . . . release from custody . . . for a period of three years," and accepted Johnson's plea. Johnson's change of plea form indicated Johnson would be subject to parole supervision for a period of three years. The form stated Johnson was promised a sentence of 15 years in prison, and "[i]f the court withdraws approval of these promises before judgment and sentence, I have the right to withdraw my plea(s)."
At Johnson's sentencing hearing, which occurred over a year later on October 5, 2016, Judge Nelson sentenced Johnson to 15 years in state prison with custody credits totaling 652 days. After imposing various fines and fees, Judge Nelson told Johnson that "following completion of the State prison sentence I just imposed, you'll be subject to parole for a period of five years."
B. Governing Law
Based on Judge Nelson's statement regarding the length of his parole period, Johnson argues he is entitled to withdraw his plea. Resolution of this contention "requires consideration of two related but distinct legal principles." (People v. Walker (1991) 54 Cal.3d 1013, 1019-1020 (Walker), overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183.)
"The first principle concerns the necessary advisements whenever a defendant pleads guilty, whether or not the guilty plea is part of a plea bargain. . . . [T]he defendant must be advised of the direct consequences of the plea." (Walker, supra, 54 Cal.3d at p. 1020.) "[A] mandatory term of parole is a 'direct consequence' of a plea and thus a matter of which a trial court is obligated to advise a defendant . . . ." (In re Moser (1993) 6 Cal.4th 342, 351-352.) "[A] defendant . . . is entitled to relief based upon a trial court's misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement." (Id. at p. 352.)
"The second principle is that the parties must adhere to the terms of a plea bargain." (Walker, supra, 54 Cal.3d at p. 1020.) "A violation of a plea bargain is not subject to harmless error analysis." (Id. at p. 1026.) Generally, if the trial court imposes a sentence that deviates significantly from the plea bargain, then the defendant should be allowed to withdraw his or her plea. (Id. at pp. 1026-1027.)
C. Johnson Is Not Entitled to Withdraw His Plea Based on Judge Nelson's Statement Regarding the Length of His Parole Period
"[P]arole terms are not the proper subject of negotiated plea agreements." (Berman v. Cate (2010) 187 Cal.App.4th 885, 895.) Thus, a trial court's statements regarding the length of parole are not enforceable terms of a negotiated plea agreement. (Id. at pp. 894-895; see In re Moser, supra, 6 Cal.4th at p. 357 ["length of a parole term is not a permissible subject of plea negotiations"].) As both parties acknowledge, the Board of Parole Hearings determines the length of a defendant's parole period, not the trial court. (§ 3000, subd. (b)(8) ["the board shall be considered the parole authority"].) As explained in Berman, supra, 187 Cal.App.4th at page 899, "permitting the prosecution or court to negotiate the conditions and/or length of parole would usurp the board's statutory authority and negate any consideration of factors relating to a defendant's postjudgment conduct. In essence, it would ascribe a prescient ability to the court and/or prosecutor to foresee a defendant's suitability for a specific term of a parole years or even decades in the future. We cannot believe that either the Legislature or the California Supreme Court intended to condone such a result." Johnson's discussion of Berman in his reply brief fails to address this point. Because Judge Nelson's statement is not an enforceable term of Johnson's plea bargain agreement, Judge Nelson did not impose a sentence that deviated from Johnson's plea bargain.
In his reply brief, Johnson also argues that Judge Nelson "misadvised" him of the consequences of his plea. We decline to consider this argument because Johnson makes it for the first time in his reply brief and has not demonstrated good cause "for the delay in raising the point." (Simpson v. The Kroger Corp. (2013) 219 Cal.App.4th 1352, 1370.) Moreover, Johnson waived this argument because he did not object to Judge Nelson's statement at the sentencing hearing. (See Walker, supra, 54 Cal.3d at p. 1023 [failure to correctly advise of consequences of plea is waived if not raised at or before sentencing].) In any event, assuming, without deciding, that Judge Nelson misadvised Johnson regarding the length of his parole period, Johnson cannot establish prejudice because Judge Nelson's statement is not part of his sentence. The Board of Parole Hearings will determine the length of his parole period. (§ 3000, subd. (b)(8).) Johnson's abstract of judgment contains no statement regarding the length of his parole when released from prison. Judge Nelson sentenced Johnson to 15 years in state prison, which is the sentence to which the parties agreed.
II.
No Abuse of Discretion in Denying Johnson's Motion to Withdraw His Plea
Next, Johnson argues the trial court abused its discretion by denying his motion to withdraw his plea. We disagree.
A. Johnson's Motion to Withdraw His Plea
Johnson entered his plea on August 12, 2015, and, on February 8, 2015, Johnson moved to withdraw it, filing a declaration in support of his motion. Dora M. Rios, the attorney who represented Johnson when he entered his plea, filed a declaration in support of the prosecutor's opposition to the motion and testified at hearings on the motion.
Judge Nelson denied the motion to withdraw. He stated: "In terms of the motion to withdraw the plea, it's a very interesting case. We heard from Ms. Rios. We heard from Mr. Johnson [in his] declaration, but I'm going to deny [the] motion . . . . [¶] . . . Going over the reports, going over the issues, Ms. Rios was thorough in her coverage with Mr. Johnson of the risks and the benefits. He's the one that didn't want to do anything that would increase his exposure. And, you know, I get the one case was stronger than the other potentially. He pled to the stronger case. You're talking about eyewitness testimony in both cases, which is problematic for both sides. There is a risk if the plea is withdrawn he'll go to trial and get convicted on both robberies. . . . So I don't think Ms. Rios misled him. She clearly was empathetic to him and at the end of the day this just seems like a case of buyer[']s remorse. So I'm going to deny the motion to withdraw [the] plea."
Later, during Johnson's sentencing hearing, the trial court also noted that Johnson "didn't deny that he was involved in either of these crimes in his declaration. [¶] And I remember noting Ms. Rios discussed with him that he didn't show up for his Round Table shift the same day of the robbery."
B. Standard of Review and Governing Law
Section 1018 allows the trial court to grant a defendant's request to withdraw a plea of guilty or no contest "before judgment . . . for a good cause shown." "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) Other factors overcoming a defendant's free judgment include "inadvertence, fraud or duress." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The defendant must demonstrate the required "good cause" by clear and convincing evidence. (Cruz, at p. 566.) "When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion." (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.)
C. No Abuse of Discretion
Johnson argues there was good cause for the trial court to withdraw his plea because he did not see the police reports or the surveillance video until after he entered his plea, his attorney misinformed him about significant facts revealed by the police reports, and he was "under duress" when forced to make a decision regarding the prosecutor's offer within one week.
We cannot conclude the trial court abused its discretion when it denied the motion to withdraw. With regard to the Mary's Pizza Shack robbery, Johnson points out the prosecutor's case was weak, but, as part of Johnson's plea bargain, the prosecutor dismissed all of the charges relating to that robbery. Rios declared she spoke with Johnson about the contents of both the police reports and the surveillance video associated with the Round Table Pizza robbery. Indeed, Rios testified she had "long conversations" with Johnson about the contents of the police reports. Accordingly, based on Rios's testimony, the trial court could reasonably conclude she adequately informed him of both "the risks and the benefits" of going to trial. (See People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 [" 'reviewing court must adopt the trial court's factual findings if substantial evidence supports them' "].)
Johnson contends he was "misinformed" by Rios because, when he reviewed the police reports, he learned that neither the Round Table Pizza manager nor the two other employees recognized him on the day of the incident. However, the manager later told police that "the suspect had the same physical descriptors and demeanor as . . . Johnson." And Rios testified she did tell Johnson that "other than the manager, there was nobody else who could identify him" as the person who robbed the Round Table Pizza restaurant. Thus, the trial court could reasonably conclude Rios did not misinform Johnson about the manager's or the other employees' statements to police. (People v. Harvey (1984) 151 Cal.App.3d 660, 667 (Harvey) [" '[w]here two conflicting inferences may be drawn from the evidence it is our duty to adopt the one supporting the challenged order' "].)
Next, Johnson points out that, when he saw the police reports, he learned that the Round Table Pizza manager said the backpack retrieved from Johnson's car was probably not the same as the backpack used during the robbery because their interior designs were different. Assuming Rios did not tell Johnson what the manager said about his backpack, the trial court did not abuse its discretion by refusing to permit Johnson to withdraw his plea based on this omission. Johnson relies primarily on People v. Harvey, supra, 151 Cal.App.3d 660, but in Harvey, defense counsel failed to advise the defendant of anticipated testimony by a certified forensic psychiatrist which, "if believed by the trier of fact, would have precluded any conviction for either first or second degree murder." (Id. at p. 668.) Here, the manager's testimony regarding the interior of the backpacks would not have precluded Johnson's conviction for second degree robbery, especially where the masked robber on the surveillance video matched Johnson's "height, weight, physical [build,] . . . age and gait," and there was other evidence linking Johnson to the crime. (People v. Breslin, supra, 205 Cal.App.4th at p. 1417 [" 'rule that a plea must be intelligently made to be valid does not require that . . . the defendant . . . correctly assess every relevant factor entering his . . . decision' "].)
Johnson next argues he was "under duress" when he accepted the plea offer of 15 years. At the time, Johnson had just turned 18 years old and, as Rios stated in her declaration, he "was not an experienced or hardened criminal who could quickly absorb the full impact of a 15-year sentence." Nonetheless, the prosecutor initially informed Rios of the 15-year offer on June 2, 2015, over two months before Johnson entered his plea. Rios succeeded in obtaining additional time for Johnson to consider the offer, and Johnson did not enter his plea until August 12, 2015. Johnson's reliance on People v. McGarvy (1943) 61 Cal.App.2d 557, is unavailing because that defendant pleaded guilty to manslaughter two days after his arrest, one day after his arraignment, and where the defendant spoke with an attorney sent by the district attorney for only 20 or 30 minutes before entering his plea. (Id. at pp. 558-560.) Where Johnson had over two months to consider the offer, the trial court did not abuse its discretion in determining Johnson's plea was not entered under duress. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208 [affirming denial of motion to withdraw plea where "[n]othing in the record indicates [defendant] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain"].)
Johnson asserts the offer was made on June 30, 2015, not June 2, 2015. This claim is based on a statement by Rios at the June 30, 2015 hearing. But in her declaration, Rios stated—unequivocally—that she received the prosecutor's offer on June 2, 2015. She also testified the offer was first conveyed on June 2, 2015.
III.
Johnson Fails to Show Prejudice from the Claimed Ineffective Assistance of Counsel
Johnson argues he is entitled to withdraw his plea because Rios was ineffective. He claims Rios "misadvised him about the evidence against him," and that he pleaded guilty "under a misapprehension of material facts and without knowledge of his legal options." We are not persuaded.
"[I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
As explained ante, substantial evidence supports the trial court's finding that Rios went over the police reports and surveillance video with Johnson, and "was thorough in her coverage of the risks and benefits" of going to trial. Even if Rios did not inform Johnson about the manager's statement regarding the backpack, Johnson has not established it is reasonably probable he would not have pleaded guilty to counts 4 and 6 but for this omission. Other circumstantial evidence linked Johnson to the Round Table Pizza robbery, including his failure to show up for work on the day of the robbery, his resemblance to the masked robber seen on the surveillance video, the resemblance of his gun to the one seen in the surveillance video, and Johnson's cell phone records indicated he was close to the Round Table Pizza restaurant at the time of the robbery. Moreover, Johnson, in his declaration, did not deny he was involved in the robberies.
In his declaration, Johnson stated that if he had known the contents of the police reports, he "would never have accepted the plea." However, "a defendant's self-serving statement . . . is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." (In re Alvernaz, supra, 2 Cal.4th at p. 938.) Johnson fails to do so. Rios testified Johnson told her "many times he did not want to do anything that would increase the time that he may have to accept." We reject Johnson's argument based on Rios's alleged ineffective assistance.
IV.
Under Proposition 57, Johnson's Convictions Must Be Conditionally Reversed
Even though Johnson is not entitled to withdraw his plea, we nonetheless conclude that, under Proposition 57, Johnson's convictions must be conditionally reversed and the case remanded to the juvenile court to determine whether Johnson should be in adult court.
On November 8, 2016, a little over one month after Johnson was sentenced and while his appeal was pending, California voters approved Proposition 57, which repealed a prosecutor's ability to charge juveniles directly in adult court. (Lara, supra, 4 Cal.5th at p. 303.) Though a district attorney may bring a motion to transfer certain cases to adult court, the juvenile court is charged with deciding whether a transfer is appropriate and may order a transfer only after it holds a hearing to consider such factors as the minor's maturity, degree of criminal sophistication, prior delinquent history, and potential for rehabilitation. (Welf. & Inst. Code, § 707, subd. (a).) In Lara, our Supreme Court concluded that Proposition 57's elimination of direct filing by the district attorney is an ameliorative change in the law that applies retroactively to cases not yet final on appeal. (Lara, supra, 4 Cal.5th at pp. 303-304.) Since Johnson's judgment of conviction is not yet final, Proposition 57 applies.
The Lara opinion tacitly endorses a remand procedure which requires a conditional reversal of the criminal convictions and a remand of the case for a transfer hearing before the juvenile court. (Lara, supra, 4 Cal.5th at pp. 310, 312-313.) Accordingly, Johnson's convictions and sentence must be conditionally reversed, and the matter remanded so the juvenile court can conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707. " 'If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [Johnson] to a court of criminal jurisdiction, . . . then [his] convictions . . . are to be reinstated. ([Welf. & Inst. Code,] § 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred [Johnson] to a court of criminal jurisdiction, then it shall treat [his] convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, at p. 310.)
V.
If the Juvenile Court Transfers Johnson to a Court of Criminal Jurisdiction, then Johnson
Shall Be Resentenced by the Same Judge Who Accepted Johnson's Plea
Johnson argues he was denied the ability to be sentenced by the judge who took his plea in violation of his rights under Arbuckle, supra, 22 Cal.3d at pages 756-757. The Attorney General concedes there was no Arbuckle waiver, and that the case should be remanded for resentencing by Judge Fracchia. Accordingly, if Johnson is resentenced in criminal court, then he must be resentenced by the same judge who accepted his plea. As our Supreme Court recently reiterated, "we adhere to the plain and original understanding of Arbuckle that in every plea in both adult and juvenile court, an implied term is that the judge who accepts the plea will be the judge who pronounces sentence. Should the People wish to allow a different judge to preside at sentencing (or, in juvenile cases, disposition), they should seek to obtain a waiver from the pleading defendant or juvenile." (K.R. v. Superior Court (2017) 3 Cal.5th 295, 312 (K.R.).) If Judge Fracchia is not available for sentencing purposes, then Johnson "must be given the option of proceeding before the different judge available or of withdrawing his plea." (Arbuckle, supra, 22 Cal.3d at p. 757, fn. 5.)
VI.
If the Juvenile Court Transfers Johnson to a Court of Criminal Jurisdiction, then the
Court Shall Consider Whether to Strike Johnson's Firearm Enhancement
Johnson's final argument is that, in light of Senate Bill No. 620 (2017-2018 Reg. Sess.), his case should be remanded to permit the trial court to exercise its discretion to strike the firearm enhancement imposed in this case. We agree.
Johnson's sentence includes 10 years for personal use of a firearm under section 12022.53, subdivision (b). Senate Bill No. 620, effective January 1, 2018, affects a sentencing court's discretion to strike or dismiss various firearm enhancements. (Robbins, supra, 19 Cal.App.5th at pp. 678-679.) Previously, a court could not strike an enhancement under section 12022.53. (Former § 12022.53, subd. (h).) Now, the statute provides that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
This amendment to section 12022.53 applies retroactively to cases not yet final. (Robbins, supra, 19 Cal.App.5th at pp. 678-679.) The Attorney General concedes the amendment applies to Johnson's sentence. Nevertheless, relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), the Attorney General contends a remand is unnecessary because, based primarily on the sentencing court's comments, it is "unlikely . . . the trial court would exercise its discretion to strike or dismiss the firearm enhancement."
We are not persuaded. Under Gutierrez, which concerned a trial court's discretion to strike prior strike convictions, the court stated a remand is required "unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion . . . ." (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) Here, we cannot conclude Judge Fracchia would not exercise his discretion based on Judge Nelson's comments.
We acknowledge that Johnson's sentence was the result of a plea bargain. Nonetheless, "[n]o bargain or agreement can divest the judge of the sentencing discretion he inherently possesses." (Arbuckle, supra, 22 Cal.3d at p. 756.) "As a rule, trial courts accepting a plea always retain discretion over sentencing. Should the court later decide not to impose the negotiated sentence, the court can withdraw its prior approval of the bargain and allow the pleading defendant (or juvenile) to withdraw his or her plea." (K.R., supra, 3 Cal.5th at p. 312.)
Similarly, section 1192.5 provides: "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 or her plea if he or she desires to do so."
Here, nothing in the record suggests Judge Fracchia would impose a sentence that is less than the 15-year sentence to which Johnson agreed, which includes a 10-year firearm enhancement. Certainly, if he did so, then the prosecutor should have the opportunity to rescind the plea agreement. (People v. Kim (2011) 193 Cal.App.4th 1355, 1361-1362.) But Johnson was not sentenced by Judge Fracchia, and section 12022.53, subdivision (h) now authorizes Judge Fracchia to "strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." Here, as explained ante, Johnson must be resentenced by Judge Fracchia, the judge who accepted his plea. (Arbuckle, supra, 22 Cal.3d at pp. 756-757; K.R., supra, 3 Cal.5th at p. 312.) Hence, upon remand, and if the juvenile court transfers this case to criminal court, then Judge Fracchia should consider whether to strike Johnson's firearm enhancement. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [" '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court' "].)
DISPOSITION
The judgment is conditionally reversed. Within a reasonable time from the filing of the remittitur, the juvenile court shall hold a hearing pursuant to Welfare and Institutions Code section 707. If the juvenile court declines to transfer Johnson to adult court, it shall treat his convictions in adult court as juvenile adjudications and make an appropriate disposition.
If, however, the juvenile court determines Johnson is suitable for trial in adult court, then Johnson must be resentenced by Judge Fracchia, the judge who accepted Johnson's plea, or, if Judge Fracchia is not available, then Johnson must be given the option of proceeding before a different judge or withdrawing his plea. We express no opinion as to how Judge Fracchia should exercise his sentencing discretion.
/s/_________
Jones, P. J. I concur: /s/_________
Needham, J.
BRUINIERS, J., concurring and dissenting.
I agree with my colleagues that conditional remand to the trial court is required by Public Safety and Rehabilitation Act of 2016 (Proposition 57) and People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, to permit consideration of Johnson's suitability for transfer from juvenile to adult court. I respectfully disagree with the conclusion that remand is required by the provisions of Senate Bill No. 620 (2017-2018 Reg. Sess.).
The majority correctly notes that Senate Bill No. 620, effective January 1, 2018, granted discretion to the trial court to strike the previously mandatory 10-year sentencing enhancement for personal firearm use under Penal Code section 12023.53, subdivision (b). I agree that the amendment to section 12022.53, subdivision (h), granting such discretion, applies to sentences not yet final on its effective date. (People v. Robbins (2018) 19 Cal.App.5th 660, 679.) In my view, the amendment to the statute has no relevance here.
Undesignated statutory references are to the Penal Code. --------
The 15-year sentence imposed in this instance was the result of a plea bargain, a provision of which was the term of imprisonment, including the firearm use enhancement. Judge Robert C. Fracchia accepted the plea—and the agreed sentence—on August 12, 2015. " '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.' " (People v. Panizzon (1996) 13 Cal.4th 68, 80; see People v. Cuevas (2008) 44 Cal.4th 374, 384.)
The majority notes that a court always retains discretion to reject the terms of a plea agreement. (K.R. v. Superior Court (2017) 3 Cal.5th 295, 312.) While true, this ignores the fact Judge Fracchia accepted a plea calling for a stipulated sentence as an integral term. Even assuming the court could still reject the plea bargain in its entirety, it would have no discretion to now selectively strike the section 12023.53, subdivision (b) firearm use clause. In other words, even if amended section 12023.53, subdivision (h) had been in effect at the time of Johnson's original sentencing, the court would not have been able to simply strike the enhancement, and it cannot do so now. I dissent to the extent that the majority suggests otherwise. I concur in part and dissent in part.
/s/_________
BRUINIERS, J.