Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, Super. Ct. Nos. 06CM2282 & 06CM4567, Peter M. Schultz, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
At a trial confirmation hearing, Steven Moroles asked the trial court to consider a negotiated disposition of his criminal case. The trial court, however, refused to consider the plea agreement on the merits and instead rejected it as untimely pursuant to a “rule” that it does not take “last minute plea agreements except in exceptional circumstances.” Moroles contends his conviction must be reversed because the trial court refused to consider the negotiated disposition solely because it was presented at the “last minute.” As we shall explain, since we conclude the record is unclear whether a rule prohibiting last minute plea agreements existed of which Moroles and his attorney had notice, and in the absence of notice of such a rule the trial court’s rejection of the plea agreement would constitute an abuse of discretion, we will remand for a limited hearing.
FACTUAL AND PROCEDURAL SUMMARY
Moroles was charged in case number 06CM2282 with possession of methamphetamine for sale. The information alleged that the crime was committed for the benefit of a criminal street gang, Moroles had a prior conviction for Health and Safety Code section 11378, and at the time of the commission of the offense, Moroles was personally armed with a firearm and released from custody on bail in case number 05CM3618. Moroles was later charged in case number 06CM4567 with possession of methamphetamine (count 1), possession of methamphetamine for sale (count 2), and possession of ammunition having been previously convicted of a felony (count 3). The information also alleged, with respect to counts 1 and 2, Moroles had a prior conviction for Health and Safety Code section 11378, and with respect to all counts, at the time of the commission of the offenses he was released from custody on bail in case numbers 05CM3618 and 06CM2282.
Both cases were assigned to the Honorable Peter M. Schultz for all hearing purposes. The minute orders reveal that offers were conveyed to Moroles on December 1, 2006, which were to remain open until January 5, 2007, and again on March 1, 2007. The details of these offers are not reflected in the minute orders and Moroles rejected them on March 2, 2007. On March 14, 2007, Moroles’s court-appointed attorney asked to be relieved as his attorney due to a conflict. The court granted the request and appointed a new attorney for Moroles.
At the May 7, 2007, pretrial settlement conference, the prosecutor conveyed another offer to Moroles, the terms of which are not reflected in the record. The court granted a continuance so defense counsel could review the offer. The trial readiness hearing was held on June 1, 2007, before the Honorable Lynn C. Atkinson. The prosecutor informed the court the People were ready for trial. The prosecutor explained an offer had been extended to Moroles that would give him nine years, four months, which was reduced substantially from the nearly 30 years he could receive, but it appeared he would be rejecting the offer, which would be withdrawn if he did not accept it that day and would not be renewed. Defense counsel responded he would be confirming and was ready for trial. The prosecutor informed the court he intended to file a motion to join the two cases for trial. The court stated it would summon a jury panel for trial with the expectation that the cases would be tried concurrently, and calendared June 15 for the confirmation hearing and June 18 for trial.
At the June 15 confirmation hearing before Judge Schultz, the court noted the jury trial was scheduled to start on Monday. Defense counsel did not oppose the prosecutor’s motion to consolidate the two cases for trial. At the prosecutor’s request, the court dismissed the gang enhancement alleged in case number 06CM2282. The prosecutor said he was ready for trial. The court asked defense counsel if he was ready for trial on Monday. The following exchange ensued:
“[DEFENSE COUNSEL]: We would be. I did convey to my client our conversation -- well, a summary of our conversation in chambers trying to resolve this even at this late date, and conveyed the message that you would be receptive to, I believe you said, correct me if I’m wrong, but a maximum of 11 years or thereabouts. The People and I had worked out a possible settlement where the total term would have been seven years, four months, I had not yet conveyed that to my client, and he is receptive to that this morning. I believe, your Honor, that it is warranted because of the dismissal of the gang allegations that he would get some benefit from the original approximate -- I believe it was nine years, four month, offer
“THE COURT: The Court doesn’t take last minute plea agreements except in exceptional circumstances. I don’t see any exceptional circumstances that would merit that.
“[DEFENSE COUNSEL]: Okay.
“THE COURT: If we do that, then everybody wants to wait till the last minute to try to solve -- resolve their case, and we summon jurors needlessly. Presumably Mr. Moroles was well aware of this rule all along and the time to settle the case was two weeks ago before we summoned a jury. At this point we’re going to trial.
“[DEFENSE COUNSEL]: Okay.
“THE COURT: Okay, anything else on the matter?
“[DEFENSE COUNSEL]: No, your Honor, thank you.”
The jury trial began on June 18. In case number 06CM2282, the jury found Moroles guilty of the sole charge of possession of methamphetamine for sale and found the three allegations true. In case number 06CM4567, the jury found Moroles guilty of counts 1 and 3, but not guilty on count 2, and found true the allegations that he committed the offenses while on release from custody in case numbers 06CM2282 and 05CM3618.
Moroles was sentenced to 15 years in prison, comprised as follows: (1) a total term of nine years in case number 06CM2282; (2) a total term of five years, four months, in case number 06CM4567; and (3) eight months in case number 05CM3618.
DISCUSSION
Moroles contends the judgment must be reversed because (1) the trial court wrongly refused to consider a negotiated disposition after the readiness conference, and (2) the CALCRIM instructions the trial court gave, specifically CALCRIM 220, 223, 224 and 300, were improper and trial counsel was ineffective on the first issue for failing to object to them. Because we conclude remand for a limited hearing is required, we do not address the instructional issues.
By implication, Respondent acknowledges the existence of a plea agreement. The process of plea bargaining contemplates an agreement negotiated by the prosecution and the defendant and approved by the court. (People v. Orin (1975) 13 Cal.3d 937, 942.) The defendant agrees to plead guilty to obtain a reciprocal benefit, which generally is a less severe punishment than that which could result if he or she were convicted of all offenses charged. (Ibid.) “Judicial approval is an essential condition precedent to the effectiveness of the ‘bargain’ worked out by the defense and prosecution.” (Id. at pp. 942-943.) The plea agreement may specify the punishment and the court’s exercise of other powers legally available to it. (Pen. Code, § 1192.5, para. 1.) If the plea is accepted by the prosecutor in open court and approved by the court, the punishment may not be more severe than was specified. (Pen. Code, § 1192.5, para. 2.)
Although a trial court has wide discretion in accepting or rejecting a plea agreement under Penal Code section 1192.5, “the court may not arbitrarily refuse to consider the offer.” (People v. Smith (1971) 22 Cal.App.3d 25, 30.) Here, the trial court refused to consider the plea bargain presented at the confirmation hearing because it did not take “last minute” plea agreements, except in exceptional circumstances not present here, and the time to settle the case was two weeks before, at the trial readiness hearing. The court presumed Moroles was aware of “this rule.” Moroles argues this was an improper reason to reject the plea, therefore the court abused its discretion in refusing to accept it.
This court has held, however, that plea bargains are subject to reasonable time constraints on their delivery to the court. (People v. Cobb (1983) 139 Cal.App.3d 578, 587 (Cobb).) In Cobb, despite the defendant’s notice and awareness of the trial court’s policy that any plea after the readiness conference would have to be “‘straight up to the charges as alleged without any conditions,’” the prosecutor and defendant attempted to obtain court approval of a plea bargain entered into after the readiness conference. (Cobb, supra, 139 Cal.App.3d at pp. 581-582.) The presiding judge, who with the agreement of the court’s judges had instituted a policy that no plea bargain would be considered after the trial readiness conference, rejected the plea bargain as untimely. (Id. at pp. 581, 582.)
On appeal, the defendant argued the trial court was obligated to consider a plea bargain on the merits at any time. (Cobb, supra, 139 Cal.App.3d at p. 580.) In rejecting this argument, this court explained that deadlines on plea bargaining are viewed as a means of reducing problems relating to calendars, because the priority of criminal cases and the frequency of pleas place civil litigants in a trailing position, and late pleas “may well have a domino effect on other cases,” leaving courtrooms vacant. (Id. at p. 581.) The court noted it was an “unpleasant judicial task” to excuse unused jurors or, if expected pleas do not materialize, to announce there are insufficient judges or courtrooms. (Ibid.) The court also recognized, however, that “successful judicial administration depends upon a positive attitude toward plea bargaining.” (Id. at p. 584.) The court noted these competing interests could be accommodated while reasonably restricting pleas to certain time periods, and “[t]he purpose of improving calendar management justifies the setting of deadlines beyond which no conditional plea may be taken.” (Id. at p. 585.) Accordingly, the court concluded a trial court may limit “the preclusion period to that reasonable time which follows the readiness conference and ends upon the completion of trial,” but was not precluded from exercising its discretion to consider a plea at any time under exceptional circumstances. (Ibid.) In reaching this conclusion, the Cobb court found “no inconsistent constitutional or statutory law or rule which would nullify the standard and local rule to which appellant objects.” (Id. at p. 582.)
The People rely on Cobb as support for their contention the trial court acted reasonably when it rejected the negotiated disposition as untimely. As the People note, in Cobb, the defendant and counsel had notice of the policy that no plea bargains would be considered after the readiness conference and apparently there was a local rule setting forth that policy. (Cobb, supra, 139 Cal.App.3d at p. 582.) On this basis, the People assert that if there was a local rule in place here that precluded the acceptance of plea bargains after the trial readiness hearing and Moroles was aware of the rule, the trial court did not abuse its discretion in rejecting the plea as untimely.
The People acknowledge that the Kings County local rules do not contain a policy limiting the time for consideration of plea bargains in felony cases. While the Kings County local rules do state with respect to misdemeanor trial readiness hearings that “[a]bsent exceptional circumstances the court will not accept negotiated plea agreements after the trial readiness hearing” (Super. Ct. Kings County, Local Rules, rule 533), this language is conspicuously absent from the rule that governs felony trial readiness hearings. (See Super. Ct. Kings County, Local Rules, rule 525).
Rule 533 provides in its entirety: “Misdemeanor Trial Readiness Hearing [¶] The purpose of a trial readiness hearing is to verify that the parties will be ready on the trial date and that jury summons should issue. The court may combine the trial readiness hearing with the pre-trial hearing. It is the duty of counsel to determine by the trial readiness hearing that all necessary witnesses will be available on the trial date and that there are no impediments to trial on the assigned trial date. [¶] Absent exceptional circumstances the court will not accept negotiated plea agreements after the trial readiness hearing.” (Super. Ct. Kings County, Local Rules, rule 533.)
Rule 525 provides in its entirety: “Felony Trial Readiness Hearing [¶] A trial readiness hearing shall be scheduled in every felony case and shall be calendared at least two (2) weeks prior to the trial date. It shall be the duty of all counsel to prepare their cases so that by the trial readiness hearing they are able to represent that (1) all non-in-limine pre-trial motions have been heard, (2) all witnesses are subpoenaed and available, (3) trial counsel is prepared for trial and has no conflicts, and (4) the defendant knows of no reason why the case should not go to trial as scheduled. Additionally, trial counsel shall notify the court of any non-perfunctory in-limine motions to be brought at trial and provide a time estimate for such motions.” (Super. Ct. Kings County, Local Rules, rule 525.)
Despite the absence of a written local rule precluding the acceptance of plea bargains after the trial readiness hearing in felony cases, the People argue we can infer from the record both that (1) there was such a rule, since the trial court referred to a “rule” and stated “the time to settle the case was two weeks ago before we summoned a jury,” and (2) Moroles and his attorney were aware of the rule, as his attorney did not object to the court’s presumption that Moroles was aware of the rule. Other than the court’s statements during the exchange at the trial confirmation hearing, there is nothing in the record to show whether there was in fact such a rule, the exact parameters of the rule, or whether Moroles or his attorney had notice of the rule. No mention of a rule limiting consideration of plea bargains was made at the time of the readiness hearing or in the minute orders.
On this record, we decline to draw the inferences the People suggest. The record, however, is also not certain enough to allow us to infer that there was no rule or that, if there was one, neither Moroles nor his attorney had notice of it. Under Cobb, in the absence of any statute, rule of court, or local rule restricting the time period in which plea bargains will be entertained, or some other form of notice, rejection of a negotiated disposition simply because it is presented for consideration after the readiness hearing is an arbitrary refusal to consider the offer. (Cobb, supra, 139 Cal.App.3d at pp. 585-586.) Since the record is unclear as to whether there was a rule or whether Moroles and his attorney had notice of it, we cannot say whether the trial court abused its discretion in refusing to consider the plea bargain.
This leaves us with the question of the appropriate remedy. The People analogize the situation to cases involving unheard Marsden and Pitchess motions, where the remedy was to remand the case with directions to conduct a hearing on the motions (see, e.g. People v. Hustead (1999) 74 Cal.App.4th 410, 418-423 [after finding trial court erred in failing to provide in camera review of police officer’s personnel file in response to Pitchess motion, this court reversed the judgment and remanded with directions to conduct an in camera hearing; if the hearing revealed no discoverable information, we directed the trial court to reinstate the original judgment, but if the hearing revealed discoverable information, we directed the court to allow the defendant an opportunity to demonstrate prejudice and if the defendant did so, to order a new trial]; People v. Minor (1980) 104 Cal.App.3d 194, 199-200 [after finding the trial court erred in refusing to hear defendant’s Marsden motion, appellate court reversed the judgment and remanded with directions to conduct Marsden hearing and, if the trial court determined good cause to do so, appoint new counsel and set the case for retrial, otherwise the trial court should reinstate the judgment or take other lawful proceedings to give effect to the verdicts]). Based on these authorities, the People suggest the appropriate remedy where, as here, the record is ambiguous about the existence of a rule on plea bargaining or whether the parties had notice of it, is to remand the case for a limited hearing on these issues.
People v. Marsden (1970) 2 Cal.3d 118.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Moroles does not argue that a remand would be inappropriate. Instead, he urges us to reconsider and reject Cobb, which he contends was wrongly decided, and instead hold that a trial court must consider a plea bargain offered at any time. Moroles asserts “there is no legitimate reason for setting an arbitrary time line on the settlement of cases by plea bargain,” since (1) the state benefits monetarily from last minute settlements because it is no longer necessary to spend state resources to try the case, (2) the jury in this case could easily have been released since it had not made it to the courtroom, (3) trial congestion is reduced and civil cases are more likely to get to trial when a courtroom is freed up, (4) an appeal is less likely or if taken, is less involved, and (5) late pleas may be more reasoned because ample time has been given to investigate and evaluate the case. Moroles asks us to adopt the reasoning of the dissenter in Cobb, who believed the court’s rule restricting the time for plea bargains must yield to the defendant’s statutory right, contained in Penal Code section 1192.5 and construed by California cases, to have the court consider the bargain, and enforcement of the rule denied the defendant the equal protection of the laws as required by the 14th Amendment of the United States Constitution and the California Constitution (arts. IV, § 16; I, §§ 11, 21). (Cobb, supra, 139 Cal.App.3d at p. 588 (dis. opn. of Franson, A.P.J.).)
Since it is unclear on this record whether a rule limiting the time for consideration of plea bargains even existed, the parameters of that rule, or whether the parties had notice of the rule, we see no reason to determine whether Cobb was correctly decided or we should continue to follow it. Instead, we agree with the People that a special disposition is required in this case and the appropriate remedy is to reverse the judgment and remand the case to the trial court to conduct a hearing on the following issues: (1) whether there is a local rule limiting the time for consideration of plea bargains in felony cases; (2) if so, what are the parameters of that rule; (3) whether the rule, if any, is inconsistent with any constitutional or statutory law or rule which would nullify it; and (4) whether Moroles and his attorney had notice of the rule when his attorney presented the plea bargain for consideration at the trial confirmation hearing. If the trial court concludes either there was no rule, the rule should be nullified, or that Moroles and his attorney did not have notice of the rule, then the trial court should consider the plea agreement on the merits. If the trial court accepts the plea agreement, the parties shall be bound by it. If the trial court rejects the plea agreement on the merits, or if the trial court concludes there was a valid rule of which Moroles and his attorney had notice, the trial court may reinstate the judgment or proceed otherwise as authorized by law.
In deference to the common law doctrine of ripeness, we do not address the instructional issues Moroles has raised since the facts in an action that is not founded on an actual controversy are not yet sufficiently congealed to permit an intelligent and useful decision to be made. (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22; see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65, fn. 6.) Whether the instructional issues Moroles argues will arise after remand is speculative. The parties shall have the right on appeal from any ensuing judgment to incorporate by reference the briefing now on file for later adjudication of those issues together with new issues, if any, arising from proceedings after remand. (See Cal. Rules of Court, rule 1.5(a) [“The rules and standards of the California Rules of Court must be liberally construed to ensure the just and speedy determination of the proceedings that they govern.”].)
DISPOSITION
The judgment is reversed and the matter remanded. The trial court shall hold a hearing, consistent with this opinion, on the issues concerning the existence of a valid rule limiting the time within which the court may consider plea bargains in felony cases and whether Moroles and his attorney had notice of such a rule. After the hearing, the trial court shall reinstate the judgment or proceed otherwise as authorized by law.
WE CONCUR: Wiseman, Acting P.J., Levy, J.