P. v. Ramirez

Filed 3/3/06 P. v. Ramirez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Eugene L. Huseman, Judge. (Retired Judge of the Santa Barbara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

Grover Trask, District Attorney, and Elise J. Farrell, Deputy District Attorney, for Plaintiff and Appellant.

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Respondent.

Defendant pleaded guilty to four counts of making a criminal threat (Pen. Code, § 422)^[1] (counts 1, 8, 10, 11), four counts of dissuading a witness (§ 136.1, subd. (c)(1)) (counts 2, 7, 12, 13), and one count of spousal battery (§ 273.5, subd. (a)) (count 9) in return for an indicated low term of two years in state prison and the dismissal of two counts of residential burglary (§ 459) (counts 3 and 4), one count of carjacking (§ 215, subd. (a)) (count 5), and one count of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) (count 6). The People objected to the sentence and to the dismissal of the remaining four counts based on the court engaging in illegal plea bargaining.

Prior to sentencing, the court heard testimony from the victim and her daughter. The court thereafter reconsidered its indicated sentence and noted it was inclined to give defendant the middle term of three years as well as the possible dismissal of counts 3 through 6 in the interest of justice (§ 1385). The People again renewed their objections to the court's indicated sentence of three years and the dismissal of the four remaining charges. Following defendant's acquiescence in the court's indicated sentence, the court sentenced defendant pursuant to its agreement.

The People now appeal, contending that (1) the trial court erred when it dismissed the four remaining allegations (counts 3‑6), as it failed to state its reasons as required by section 1385; (2) the trial court abused its discretion in dismissing counts 3 through 6 prior to trial in the interest of justice, over the People's objection; and (3) the trial court engaged in illegal plea bargaining. As explained below, we agree the trial court engaged in unlawful plea bargaining and violated the tenets of section 1385. We will therefore reverse the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Defendant and victim A.P. had been married for over 13 years and had several children together, including 11-year-old Rachel.^[3] In 2002, defendant punched his wife several times and was subsequently arrested. He later pleaded guilty to a violation of section 273.5, was sent to county jail for 365 days, and was then deported to Mexico. Defendant was not seen again until he appeared at A.P.'s residence in August 2003.

On August 14, 2003, about 6:00 p.m., defendant appeared at A.P.'s residence, where she had been residing for the previous three years. Defendant came into the house and walked into a bedroom. A.P. told defendant he could not stay. He left to get beer, and A.P. called the police. However, the police did not come.

Defendant returned and began drinking beer and yelling profanities at A.P. He threatened to kill A.P. for previously having him arrested. He told Rachel that he had come back to get even with her mother for having him put in jail. Rachel began dialing 911 but hung up. The 911 operator telephoned back, but because A.P. was afraid of defendant, she told the 911 operator that everything was all right. Defendant then threatened several times to hurt A.P. if she called the police. He said he was not afraid of going to jail, but if he was going to jail it would be for â€