P. v. Wardlaw

Filed 6/18/08 P. v. Wardlaw CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James A. Edwards, Judge. (Retired judge of the San Bdno. Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed and remanded with directions.

Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney for Plaintiff and Appellant.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant Wardlaw.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant, Barbee.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Kristine A. Gutierrez and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

The police apprehended the two defendants, Denise Anne Barbee and Arminetta Elaine Wardlaw, outside a University Avenue liquor store in Riverside, in possession of 60 pieces of rock cocaine, packaged for sale.

The defendants each pleaded guilty to one count of possessing cocaine base for sale. (Health & Saf. Code, 11351.5.) In addition, Barbee admitted to 10 previous drug convictions and six prison priors. Wardlaw admitted to three previous drug convictions and four prison priors.

The court sentenced Barbee to 15 years in state prison and dismissed seven prior drug convictions and five prison priors. The court sentenced Wardlaw to nine years in state prison and dismissed two prior drug convictions and three prison priors.

The district attorney appeals, contending the trial court engaged in illegal plea bargaining and improperly struck the various sentence enhancements. Defendants have filed respondents briefs and, in the alternative, a cross-appeal challenging the courts order denying their pretrial motion to suppress. The Attorney General has filed a respondents brief to the cross-appeal. Every party has filed a reply. We affirm the judgment but remand so the court may state fully its reasons for striking the enhancements.

2. Factual and Procedural Background

a. The Pretrial Hearing and the Suppression Motion

The facts are derived from the preliminary hearing and the hearing on defendants motion to suppress evidence.

Riverside police officer, Camillo Bonome, testified that he was on patrol on December 28, 2005, in the area of University and Ottawa. He saw the defendants at approximately 10:00 p.m. in front of Western Liquor, an area known for narcotics transactions. The two women appeared to conduct a furtive hand-to-hand transaction, an exchange of a small item or package. Bonome also saw a man, a known cocaine user, walking away from the women. Bonome parked his patrol car next to the women and they both appeared to be alarmed and each put a hand in her pocket.

It was a cool night and both women wore jackets. Barbee acted evasively and Bonome detained her for questioning. Meanwhile, Wardlaw began fiddling with her clothing and her pockets. Bonome questioned Wardlaw, who explained she lived in Los Angeles and her car was parked down the street. Bonome touched Wardlaws pocket and felt a large bag. He also touched her purse and felt a large lump with smaller interior granules and consistent with cocaine. Wardlaws agitation increased. Bonone handcuffed her and returned his attention to Barbee. He seized her hand, pulling it out of her pocket. He located another lump, which he recognized as cocaine. He arrested Barbee.

Barbee had possession of nine grams of cocaine, including packaging. Wardlaw had possession of 10.4 grams, including packaging. Barbee also was holding $362 and three cell phones. Wardlaw had $265 and one cell phone.

The court denied defendants suppression motion.

b. The Guilty Pleas

At the mandatory settlement conference in November 2006, the court proposed an indicated sentence of 12 years for Barbee. As trial commenced in December 2006, the following transpired. Defense counsel mentioned the 12-year indicated sentence for Barbee and commented that her potential exposure was more than 40 years. At the courts suggestion, the parties conducted an unreported chambers conference. The court then recited: The Court had indicated that if the defendants were to plead guilty, as charged, the Court would give the . . . prison term of 15 years to Miss Barbee and of nine years to Miss Wardlaw.

The prosecutor objected to the proposed sentences on the grounds that the court was engaging in illegal plea bargaining. Specifically, the prosecutor explained: This is a situation where the Court said, My indicated would be 20. Defendants were unwilling to take 20 and nine. They said, Well take 15 to nine. The Court said, We can do 15 to nine, which seems to me, procedurally, to be plea bargaining, which is not permitted. Additionally, the prosecutor objected to the sentences as being no different than those proposed at arraignment before there had been additional costly proceedings.

The court responded, commenting, Yes, you correctly recited whatbriefly what our discussion was in chambers, and I can only say in response that the 15 years I agreed to offer Miss Barbee was what I felt was in thewas a reasonable offer within the realm of reason. 20 would have been reasonable. [] I understand that this was the initial offer at the time of arraignment, and I understand that another offer was made of 12 years by Judge Hanks not that long ago after the 1538.5 motion was denied, but I feel that 15 years offered Miss Barbee and the nine offered Miss Wardlaw are reasonable, even considering their extensive background, particularly the background of Miss Barbee.

The court then proceeded to receive defendants pleas of guilty and to pronounce defendants sentences, after striking seven prior drug convictions and five prison priors for Barbee and two prior drug convictions and three prison priors for Wardlaw.

3. Discussion

The district attorney urges on appeal that the courts indicated sentence for each defendant was actually an illegal plea bargain, citing People v. Orin (1975) 13 Cal.3d 937, 942: 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.

As elaborated by the court in People v. Vessell (1995) 36 Cal.App.4th 285, 296: [P]lea bargains reached between the court and the defendant in which the court has struck a criminal charge over the objection of the prosecutor have been uniformly overturned, . . . In each of those cases, the People did not agree to the arrangement by which the charges against the defendant were disposed, objected to the plea bargain at the time it was entered, and stated that the People were ready to proceed to trial. [Citations.]

It is true that under a plea bargain, the defendant may bargain with the People to be permitted to plead to a lesser charge and such a bargain requires the approval of the court. [Citations.] However, where the defendant pleads guilty to all charges, all that remains is the pronouncement of judgment and sentencing; there is no requirement that the People consent to a guilty plea. [Citations.] In that situation, the trial court may give an indicated sentence which falls within the boundaries of the courts inherent sentencing powers. [Citation.]

Here, as in Vessell, the record shows that the court announced an indicated sentence affording some leniency. When confronted with the prosecutors objection, the court expressly rejected the prosecutors characterization of the indicated sentences as plea bargaining and asserted the indicated sentences were based on an objective analysis of reasonableness. Each defendant then pleaded guilty to the charged offense and the related enhancements before the court pronounced the sentences. (People v. Marsh (1984) 36 Cal.3d 134, 140.)

A guilty plea made in consideration of an indicated sentence is not an unlawful judicial plea bargain. (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1268-1270.) There is no bargaining involved because no charges are reduced and the prosecutors consent is unnecessary. (People v. Allan (1996) 49 Cal.App.4th 1507, 1516.) The prosecutor may certainly argue for a different sentence but the trial court has the discretion to offer an indicated sentence within the statutory range. (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276.)

It does not matter that the court did not rely on probation reports because a probation report may be waived as defendants did here. (People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432; 1203, subd. (b)(4).) Furthermore, the statute governing the preparation of probation reports applies only to defendants who are eligible for probation, not to defendants like these with extensive criminal records. (People v. Llamas (1998) 67 Cal.App.4th 35, 39-40.)

Additionally, while the court may not have expressly given its reasons for striking the enhancements, the court did include a concise statement about the seriousness of each defendants prior record in imposing the five-year upper term for the primary offense. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1774-1775;  1385, subd. (a); Cal. Rules of Court, rule 4.420(c) and former subd. (e) (eff. 2006).) The written order could be corrected by amendment to cure the omission of the courts statement of its reasons for striking the enhancements. (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) But we deem it to be the better practice here to remand for the court to express fully its reasons for striking the enhancements and to amend the written minute order accordingly. Additionally, defendants shall have the option to withdraw their guilty pleas if they so desire. (People v. Orin, supra, 13 Cal.3d at pp. 948-951.)

4. Disposition

We conclude that the trial court did not participate in an illegal judicial plea bargain. We do not consider the alternative cross-appeals concerning the denial of the suppression motion. But our holding in this respect is without prejudice to raising the issue in subsequent proceedings.

We affirm the judgment but remand to permit the court to amend the written order stating the courts statement of reasons for striking the enhancements.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/Miller

J.

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^[1] All statutory references are to the Penal Code unless stated otherwise.