P. v. Alvarez
Filed 4/2/13 P. v. Alvarez CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
BOBBY ANGEL ALVAREZ,
Defendant and Appellant.
G046490
(Super. Ct. No. 08HF1565)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Gregg L. Prickett, Judge. Reversed and remanded with directions.
Christian C. Buckley,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry Carlton and Teresa Torreblanca,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Bobby Angel
Alvarez appeals from the judgment of
conviction entered against him after a jury trial. Before trial, the prosecution had offered
defendant a negotiated disposition by which defendant would plead guilty to an
assault offense and, inter alia, be placed on formal probation under terms and
conditions including that he serve 365 days in jail. Defendant accepted the prosecution’s offer,
but the trial court refused to accept the agreement.
We reverse. Based on the record before us and for the
reasons we explain in detail, the trial court erred by not accepting the
negotiated disposition agreement reached by defendant and the prosecution. The only suitable remedy is specific
enforcement of defendant’s written negotiated disposition agreement with the
prosecution; therefore, on remand, we direct the trial court to accept that
agreement.
PROCEDURAL BACKGROUND
Defendant and
codefendant Richard Anthony Fuentez III (Fuentez) were charged in an
information with (1) assault with a deadly weapon in violation of Penal
Code section 245, subdivision (a)(1)
(count 1); (2) assault by means of force likely to produce great
bodily injury in violation of section 245, subdivision (a)(1)
(count 2); and (3) battery inflicting serious bodily injury in
violation of section 243, subdivision (d) (count 3). Defendant alone was charged in the
information with possession of a deadly weapon, namely, brass knuckles in
violation of former section 12020, subdivision (a)(1)
(count 4). As to counts 1 and
2, the information alleged, pursuant to section 12022.7,
subdivision (a), and within the meaning of sections 1192.7 and 667.5,
defendant and Fuentez personally inflicted great bodily
had not been an accomplice during the commission and attempted commission of
those offenses.
title="">[2] The charges arose out of a fight in a
restaurant and bar.
On the date set for
trial, defendant and Fuentez agreed to the prosecution’s offer in which defendant
and Fuentez would each plead guilty to a single count of assault, and be placed
on probation under certain terms and conditions. (Defendant’s negotiated disposition agreement
was conditioned on, inter alia, his serving 365 days in jail.) The trial court started to take their pleas,
reviewing with defendant and Fuentez the rights they were giving up by pleading
guilty as set forth in the completed Tahl
forms they had submitted to the court.
Defendant’s Tahl form, which
sets forth his negotiated disposition agreement with the prosecution, is part
of our record. The trial court confirmed
with defendant the statement in his Tahl
form, setting forth the factual basis for his plea, was a true statement. After the court confirmed with Fuentez the
truth of the factual basis statement in his Tahl
form, the court asked Fuentez, “how do you plead?†Fuentez responded, “[g]uilty, Your
Honor.†The court then stated, “[w]e are
off the record.â€
Upon resuming
proceedings on the record, the trial court asked Fuentez if he had any
questions about what he was doing, and Fuentez said, “[n]o.†The court also asked, “Mr. Fuentez, do
you wish me to accept your plea of guilty?â€
Fuentez responded, “[y]es, Your Honor.â€
The court then found a knowing, intelligent, voluntary waiver of
Fuentez’s constitutional rights and a
factual basis for the plea. Fuentez
waived arraignment and time for sentencing; the court, the prosecutor, and
Fuentez’s counsel discussed Fuentez’s possible sentence. The court again stated they were going “[o]ff
the record.â€
When the proceedings
went back on the record, the court adjourned proceedings for the day without
returning to the plea of defendant or Fuentez.
The following morning,
Fuentez informed the trial court that he had changed his mind and wished to go
to trial on the charged offenses against him.
The court did not then address the status of defendant’s plea, but began
addressing pretrial issues. The court
granted defendant’s counsel’s request to “lay a record as to our off‑the‑record
discussions.†Defendant’s counsel
asserted that notwithstanding the package nature of the original negotiated
disposition agreements, the prosecution had agreed to offer defendant alone the
same negotiated disposition agreement it had offered defendant before Fuentez
declined the negotiated disposition agreement offered to him. The court confirmed defendant’s counsel’s
statement that the court would not accept a negotiated
disposition agreement between the prosecution and defendant alone. According to the court, such an agreement
would have to also include Fuentez for court approval.
A jury was selected the
following day. The jury found defendant
guilty on all four counts, and found that defendant had personally inflicted
great bodily injury on Kral in the commission of counts 1 and 2 as alleged
in the information. The jury found
Fuentez not guilty as to each of the counts charged against him.
The trial court imposed
a total prison term of six years eight months, but suspended execution of that
sentence. The court placed defendant on
formal probation for five years, conditioned on, inter alia, defendant serving
365 days in jail. Defendant
appealed.
DISCUSSION
Defendant’s sole
contention in this appeal is that the trial court erred by rejecting the
negotiated disposition agreement defendant had reached with the
prosecution. For the reasons we will
explain, we agree with defendant.
I.
Governing Legal Principles and Standard of
Review
“Plea negotiations and
agreements are an accepted and ‘integral component of the criminal justice
system and essential to the expeditious and fair administration of our
courts.’ [Citations.] Plea agreements benefit that system by
promoting speed, economy, and the finality of judgments.†(People
v. Segura (2008) 44 Cal.4th 921, 929.)
“[T]he process of plea negotiation ‘contemplates an agreement negotiated
by the People and the defendant and approved by the court.’†(Id.
at pp. 929‑930.) The trial
court’s approval “‘is an essential condition precedent to the effectiveness of
the “bargain†worked out by the defense and prosecution.’†(Id.
at p. 930.)
“[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.’†(
“In exercising their
discretion to approve or reject proposed plea bargains, trial courts are
charged with the protection and promotion of the public’s interest in vigorous
prosecution of the accused, imposition of appropriate punishment, and
protection of victims of crimes.
[Citation.] For that reason, a
trial court’s approval of a proposed plea bargain must represent an informed
decision in furtherance of the interests of society [citation]; as recognized
by both the Legislature and the judiciary, the trial court may not arbitrarily
abdicate that responsibility.†(
941.) “For example, in
Cal.3d [937,] 943‑944, [the Supreme Court] held that the underlying
purpose of the statutory requirements governing dismissal of counts under
section 1385 was to protect the public interest against ‘improper or
corrupt dismissals,’ and to impose a purposeful restraint upon the exercise of
judicial power.†(Ibid.)
The United States
Supreme Court recently reiterated the importance of the plea bargaining process
in our judicial system in Missouri v.
Frye (2012) 566 U.S. __, __ [132 S.Ct. 1399, 1407], stating: “The reality is that plea bargains have
become so central to the administration of the criminal justice system that
defense counsel have responsibilities in the plea bargain process,
responsibilities that must be met to render the adequate assistance of counsel
that the Sixth Amendment requires in the criminal process at critical
stages. Because ours ‘is for the most
part a system of pleas, not a system of trials,’ [citation], it is insufficient
simply to point to the guarantee of a fair trial as a backstop that inoculates
any errors in the pretrial process. ‘To
a large extent . . . horse trading [between prosecutor and defense
counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal
justice system; it is the criminal
justice system.’ [Citations.] In today’s criminal justice system,
therefore, the negotiation of a plea bargain, rather than the unfolding of a
trial, is almost always the critical point for a defendant.â€
stated: “To note the prevalence of plea
bargaining is not to criticize it. The
potential to conserve valuable prosecutorial resources and for defendants to
admit their crimes and receive more favorable terms at sentencing means that a
plea agreement can benefit both parties.â€
(Id. at p. __ [132 S.Ct.
at p. 1407].)
title="">[5]
II.
Detailed Chronology of Hearings Addressing the
Prosecution’s and Defendant’s Negotiated Disposition Agreement.
A.
Pretrial Hearings on Defendant’s Negotiated Disposition Agreement
During the hearing on
November 29, 2011, the date set for trial, the court addressed the
prosecution’s offers for negotiated disposition agreements that had been
extended to Fuentez and defendant.
Fuentez initially informed the court that he was going to reject the
offer. He explained he had
“uncertainties about the restitution hearing†because he did not “know what
[he]’ll end up paying.â€
The trial court then
asked defendant whether he wished to accept the prosecution’s offer. Defendant stated he decided to accept the
prosecution’s offer. The court told
defendant to “[f]ill out the forms.â€
That same day, a
defendant’s counsel, and the prosecutor, was filed in the trial court. The Tahl
form stated defendant agreed to plead guilty to one count of assault with a
deadly weapon in violation of section 245, subdivision (a)(1) and be
sentenced to three years’ formal probation with terms and conditions including
he serve 365 days in jail; the prosecutor agreed to dismiss the remaining
charges and enhancements. (A copy of
defendant’s Tahl form is included in
the clerk’s transcript at pages 175 through 182.)
That afternoon, the
trial court acknowledged on the record that both defendant and Fuentez had
submitted Tahl forms to the court.
go over these with you.†The court
proceeded to go over certain rights in the Tahl
form with defendant and Fuentez. Each
stated his understanding of the rights he would be giving up by pleading guilty
in accordance with his respective negotiated disposition agreement.
The trial court then
asked Fuentez how he wished to plead to count 2, assault by force likely
to produce great bodily injury. Fuentez
responded, “[g]uilty, Your Honor.â€
Fuentez’s counsel joined in Fuentez’s waiver. The court stated it found “a knowing,
intelligent, voluntary waiver of Mr. Fuentez’s constitutional rights†and found
a factual basis for the plea. Following
off‑the‑record discussions and a brief discussion of Fuentez’s
possible sentence—without an explanation on the record—the trial court abruptly
concluded the hearing for the day, saying, “[w]e’re done. Sorry.
This shouldn’t be this hard.
Gentlemen, you’re ordered to return back to this court 9:15 tomorrow
morning. Regrettably, we have not
ordered jurors, but we’re going to see what’s going to happen tomorrow morning
at 9:15.â€
The following morning,
on November 30, 2011, the trial court asked Fuentez: “[T]he court’s offer to you is that I will
accept this plea if you will agree to probation with terms and conditions of
probation if you were to pay off the court‑ordered criminal restitution
and that probation would terminate. [¶]
Do you understand that, sir?†Fuentez
answered he understood but was not willing to accept the offer. After confirming Fuentez’s understanding that
he was risking prison time by rejecting probation, the court started discussing
jury selection and other pretrial matters.
Defendant’s counsel then
raised the issue of the status of defendant’s negotiated disposition agreement
and the trial court granted defendant’s counsel’s request to be given the
opportunity to create “a record as to [the] off-the-record discussions†that
had occurred on that issue. The
following colloquy shows defendant’s counsel confirmed with the court that the
prosecution’s negotiated disposition offer to defendant remained on the table,
notwithstanding Fuentez’s decision to go to trial,
defendant accepted the prosecution’s offer, and that the court rejected the
negotiated disposition agreement:
“[Defendant’s
counsel]: It’s my understanding that the
People had offered my client an opportunity to sever himself from the case and
accept the deal as we understood it to be, which was a year in county jail with
certain terms and conditions. It is the
court’s belief that the case should not be severed, that the court wouldn’t
accept my client to accept the deal without having the co‑defendant,
Mr. Fuentez; is that correct?
“The Court: Correct.
I said I would not hold it against your—your client obviously, but that
I was not inclined to, on the day of trial, sever a case like this.
“[Defendant’s
counsel]: Very well. Just in terms of a trial task for my client
obviously being forced to go to trial, I suspect that the court would—
“The Court: Your client can plead guilty anytime he
wants. I’m not saying he cannot plead
guilty. I’m saying I’m not going to
accept a plea bargain on this case.
“[Defendant’s
counsel]: Correct. But pleading guilty would mean that he would
have to obviously plead guilty to the sheet to the court, which would obviously
require him to plead to two strikes, which is not—which he’s not interested in
doing.
“The Court: Okay.
“[Defendant’s
counsel]: But—but I hope, the court for
sentencing purposes, if he’s found guilty, the court would not impose a
sentence greater than what he would have accepted.
“The Court: I’m not making that commitment, sir. The law does not require I make that
commitment.
“[Defendant’s counsel]: Okay.
Well, just for the record, my client would have taken the deal. Obviously, he doesn’t want to take two
strikes with the court.
“The Court: Okay.
Noted, sir. [¶] I believe
yesterday the defendant, Mr. Fuentez, had entered a plea. The court is going to set aside those pleas
at this time, and there will be no entry of that plea. The People are in no way to mention any type
of admission that occurred by the factual basis of either defendant.â€
The court concluded the
hearing by scheduling jury selection on the following morning.
On the following
morning, December 1, defendant’s counsel again raised the subject of the
trial court’s rejection of defendant’s negotiated disposition agreement as
follows:
“[Defendant’s
counsel]: Your Honor, can I
just—yesterday when we had our chambers discussion about the proposed
disposition that the court rejected, I didn’t really get a chance to lay my
specific objection. I feel that I need
to preserve that for appellate purposes.
May I?
“The Court: You may.
“[Defendant’s
counsel]: Essentially I understand that
judicial approval is a condition present [sic]
to the court accepting our plea bargain.
It’s my understanding that the court did not want to accept my client’s
disposition with the People without having it been a package deal. Just for the record, I want to object that I
do believe that that refusal for the court to accept our terms—it just appeared
it wasn’t the terms of our deal. It was
the issue, but rather having both parties accept that.
“The Court: It was also your client’s reluctance to enter
into the plea agreement that your client several times paused, needed to talk
to you to go through it. I was not prepared
to find a knowing, intelligent, voluntary waiver of your client at that point. Then once the deal further fell apart, I then
became very reluctant. In fact, I’m
relieved. I wasn’t sure that your client
was fully and completely in agreement to do that, that—let me finish. [¶] Whenever there is a situation of a
package deal, there always is the potential.
I’m always mindful of this of the coercive nature that not only is it in
my best interest, but if I don’t do this, then my buddy doesn’t get the deal
and I feel bad because, you know, this could expose my buddy to more time, things
like that. So I was examining all of
that when I made my statement, not simply, you know, that both defendants
accept or both defendants don’t accept.
“[Defendant’s
counsel]: May I?
“The Court: You may.
“[Defendant’s
counsel]: With all due respect, I did
not necessarily see the same issues that the court saw about my client’s
voluntariness of entering into the plea bargain. He did have questions for me about the issues
of time that he’d have to serve, that were more to the specifics of the terms
and conditions of the plea bargain. But
obviously, you having seen thousands of cases and spent years on the bench, I
assume correctly, the court has seen reluctance on behalf of clients, at least
defendants to accept plea bargains. I
wouldn’t have joined in the court’s opinions that my court—if my client had an
unwillingness to enter into the plea bargain, it was not knowing, intelligent
or voluntary. [¶] I understand the
court’s reasoning to us, now for the first time. It wasn’t discussed yesterday, but just I
respect your opinion and the rules that you have imposed. I just want to preserve the objection that I
do believe that it violates my client’s federal and state
submit.
“The Court: Noted.â€
B.
Discussion of Defendant’s Written Negotiated Disposition Agreement at the
Sentencing Hearing
After the jury found
defendant guilty on all four counts as charged and found the enhancement
allegations true, the trial court imposed a sentence of six years eight months
in prison but then suspended execution of that sentence and imposed five years’
formal probation because of the “unusual circumstances†of the case. The unusual circumstances included that the
offenses occurred during a bachelor party at a location defendant does not
frequent, he is young and has “no significant prior record†(the information
did not allege defendant had suffered any prior convictions), he has a strong
support system, and he did not make excuses for his conduct. The court stated that this case was “unusual
from the classic bar fight [where] someone gets really badly injured, you
should be sent to prison.†The court
warned defendant, however, that he now had two strikes on his record. The terms and conditions of defendant’s
formal probation included defendant serving 365 days in jail.
Defendant’s counsel
again raised the issue of the rejected negotiated disposition agreement:
“[Defendant’s counsel]:
. . . [¶] When we came here and announced ready for trial, the court
saw two defendants here. The People and
I, right before trial, have always discussed that this was going to be a
package case. [¶] Before we actually
started trial, [the prosecutor] offered me an opportunity to have my client
plead guilty to one nonstrike[
name="_ftnref8" title="">[8]] count to 245 and to have him conduct 365 days
in jail. [¶] It was the court who
refused to accept that plea bargain on the condition that both parties had to
accept the deal.
“The Court: And in retrospect, under People vs. Clanc[e]
believe it’s the Third District that has now ruled that would be an illegal
plea bargain.
“[Defendant’s
counsel]: Well—
“The Court: So—but I note that, sir, because the People
could not state that they were unable—that this case would thus qualify under
one of the reasons under 1192.7. I never
heard the People state that.
“[Defendant’s
counsel]: But the court never asked the
People to provide any statements either to that.
“The Court: You are aware of the fact, sir, that I did
earlier state that I am mindful of the discussions that happened in this
case. You’re also aware of the fact,
sir, that pretrial negotiations are not a valid consideration at sentencing.
“[Defendant’s
counsel]: This—Your Honor, with all due
respect, I’m not going into the pretrial considerations.
“The Court: Then why are you telling me?
“[Defendant’s
counsel]: The point is, my client took
the stand and was forced to trial, not because this wasn’t a fair deal, but
because the court wanted both parties to go to trial. He was willing to accept responsibility.
“The Court: The court disagrees with that last statement.
“[Defendant’s
Counsel]: Very well. I don’t believe—and if I can just make my
objections. I don’t believe judicial
efficiency was found by having both parties go to trial. We would have had a shorter trial. My client was willing to accept the
deal. [¶] When we came back the next day
to start trial, I laid my series of objections.
Then the court said well, I didn’t think your client was voluntarily
taking this deal. He was showing signs
of hesitancy. That’s what the court said
right before we started trial. And
that’s when I inquired of the court and said, Your Honor, my client had issues
about the jail, had issues about the time he’s going to have to do. [¶] He—he didn’t go to the issues of knowing,
intelligent[,] voluntary waivers. That
was the court’s reasoning before we started trial, and I laid the rest of my
objections when we started trial. [¶] My
client then—strike that. [¶] Before we
started trial, I asked the court, if we’re forced to trial, will the court at
least—
“The Court: Sir, I’m not going to allow you to make this
rambling statement to me. What is your
objection?
“[Defendant’s
counsel]: I just have two more minutes.
“The Court: What’s the objection?â€
After defendant’s
counsel and the court briefly discussed whether defendant was being excessively
punished, defendant’s counsel and the court engaged in this final discussion of
the negotiated disposition agreement:
“[Defendant’s
counsel]: I guess my objection is I do
feel that there was an abuse of discretion in not allowing my client to accept
the plea bargain, that the suspended sentence and a year in county jail, the
court essentially forced my client to go to trial. He picked up two strikes. He would have had no strikes and he is
serving the same amount of time. [¶]
This case could have been resolved if the court would have accepted our plea
bargain. And I object to the court,
after the court ruled back then to say, you know, ‘he was showing signs of
hesitancy.’ [¶] In all my practice[] as a
criminal defense attorney, if there are issues of hesitation, generally speaking,
the court will inquire of counsel or the defendant of what the hesitation is
and if it’s a knowing, intelligent[,] voluntary waiver. [¶] I felt that the court took it upon itself
to force both parties to trial, and now my client has to deal with the
suspended sentence. [¶] I also felt that
when you asked me about my personal views about the suspended sentence,
obviously my objections were based on the amount of county jail time. I think it is just excessive punishment. [¶] With that, I submit. We have the previous record obviously.
“The Court: Sir, I’m not going to allow those statements
to remain uncharged. So I’m just going
to now have the final word here.
“[Defendant’s
counsel]: Sure.
“The Court: First of all, contrary to my previous indicated
sentence, I am not having the defendant waive his credits. Notice, I talked about that. But I’ve changed my mind on that. [¶] Second of all, that the court always has
the authority to decline a plea bargain especially on the day of trial, and especially
in the situation that involves a serious and violent felony like this. [¶] So to somehow suggest that I have abused
my discretion in this regard, sir, is contrary to the record. [¶] And what you are—what you are doing, sir,
is calling into question the factual findings that I made previously. [¶] You have made your record on that. [¶] I have not sentenced your client more
harshly for the direct consequences of going to trial than the plea bargain
was. If he ends up being convicted of
additional crimes, those were the charged offenses that the defendant was
facing. [¶] Now, back to my
question. Jail surrender date, sir?
“[Defendant’s
counsel]: Can I correct the court?
“The Court: No, you may not, sir.
“[Defendant’s
counsel]: The court—
“The Court: No, you may not, sir.
“[Defendant’s
counsel]: Can I make one comment?
“The Court: No, you may not, sir. What about my statements—
“[Defendant’s
counsel]: You said—
“The Court: What about my statements is not clear? I didn’t say—
“[Defendant’s
counsel]: Everything is clear.
“The Court: Thank you.â€
III.
The Record Does Not Support the Trial Court’s
Rejection of the Written Negotiated Disposition Agreement Agreed to by the
Prosecution and Defendant.
The record does not
support the trial court’s rejection of defendant’s written negotiated
disposition agreement. When defendant
and Fuentez had each agreed to the terms of their respective written negotiated
disposition agreements as a “package deal,†the trial court conducted a thorough
review on the record of the Tahl
forms with defendant and Fuentez. (At
one point, the court accepted Fuentez’s plea and found a factual basis for his
plea.) At no time, before or after
trial, did the trial court make any findings or state that defendant’s written
negotiated disposition agreement as set forth on his Tahl form was unfair or contrary to the public interest.
Not until Fuentez
decided to reject his negotiated disposition agreement, did the trial court
state it would refuse to accept defendant’s written negotiated disposition
agreement. The court also acknowledged
to defendant’s counsel that it had done so because there was no longer a
package deal. But that was not the trial
court’s call; indeed, it was the prosecution’s call to determine whether to
allow defendant to plead according to the terms of his written negotiated
disposition agreement after Fuentez elected to go to trial, and the prosecution
chose to keep its offer to defendant open.
We have found no legal authority supporting the trial court’s rejection
of a negotiated disposition agreement on such a ground.
The trial court also
stated it rejected defendant’s written negotiated disposition agreement because
the court sensed hesitancy on defendant’s part in entering the plea. But the record does not support any such
finding. The reporter’s transcript shows
that defendant asked his attorney questions during the hearing on the written
negotiated disposition agreement, but does not show that defendant’s assent to
the terms of the written negotiated disposition agreement was anything other
than voluntary, intelligent, and knowing.
Although defendant’s counsel told the court that defendant was not
hesitant and wished to enter the plea in accordance with the written negotiated
disposition agreement, the court did not question defendant or counsel on this
issue.
In addition, the trial
court stated that it was within the court’s discretion to reject a negotiated
disposition agreement on the date set for trial, even though the court had been
willing to accept a negotiated disposition agreement the afternoon before,
which actually was the date set for trial.
Furthermore, the record shows the court had also been willing to accept
the written negotiated disposition agreement as to defendant on the date set
for trial only if Fuentez had also accepted the agreement that had been offered
to him. At the first hearing on the
agreement, the court told Fuentez, defendant, and their respective attorneys
that “the court would accept no more negotiated pleas once [the court]
order[ed] the jury panel.†According to
the record, the jury panel had not been ordered at the time the court rejected
defendant’s written negotiated disposition agreement.
In the respondent’s
brief, the Attorney General argues the trial court would have had to reject the
proffered negotiated disposition agreement because it was illegal under
section 1192.7, subdivision (a).
But we cannot presume the trial court would have made such a
determination. (In re Alvernaz, supra, 2
Cal.4th at pp. 941‑942, fn. 10 [“Our refusal to create a
presumption of judicial approval of plea bargains applies to plea bargains
subject to the proscriptions of section 1192.7, as well as to all other
types of plea bargainâ€].)
Based on the record before
us, we conclude the trial court abused its discretion by rejecting defendant’s
change of plea in accordance with defendant’s written
good record of the proceedings, sufficient for appellate review.
IV.
Under the Circumstances of This Case, the
Appropriate Remedy for the Trial Court’s Error in Failing to Accept Defendant’s
Written Negotiated Disposition Agreement Is Specific Enforcement.
We now turn to the issue
of the appropriate remedy. In
considered the appropriate remedy when the defendant’s counsel had been
ineffective for failing to communicate a plea bargain offer to the
defendant. Citing, inter alia,
861, the California Supreme Court stated, “California courts, however,
generally disfavor the remedy of specific enforcement of a failed plea bargainâ€
when it will limit the judge’s sentencing discretion. (In re
Alvernaz, supra, at p. 942.)
In People v. Mancheno, supra,
32 Cal.3d at pages 860‑861, the Supreme Court stated: “The usual remedies for violation of a plea
bargain are to allow defendant to withdraw the plea and go to trial on the
original charges, or to specifically enforce the plea bargain. Courts find withdrawal of the plea to be the
appropriate remedy when specifically enforcing the bargain would have limited the
judge’s sentencing discretion in light of the development of additional
information or changed circumstances between acceptance of the plea and
sentencing. Specific enforcement is
appropriate when it will implement the reasonable expectations of the parties
without binding the trial judge to a disposition that he or she considers
unsuitable under all the circumstances.â€
The Supreme Court
further explained: “‘Specific
enforcement of a plea bargain agreement is actually a broad term covering
several different types of relief. The
remedy differs depending upon the nature of the breach and which party is
seeking specific enforcement. When the
breach is a refusal by the prosecutor to comply with the agreement, specific
enforcement would consist of an order directing the prosecutor to fulfill the
bargain. When the breach is a refusal by
the court to sentence in accord with the agreed upon recommendation, specific
enforcement would entail an order directing the judge to resentence the
defendant in accord with the agreement.
The People as well as a defendant may seek such specific
enforcements. The effect is to limit the
remedy to an order directing fulfillment of the bargain. In such instances, the defendant is not
allowed to withdraw his guilty plea.’†(
Here, the trial court
did not determine the terms of defendant’s written negotiated disposition
agreement as set forth in the Tahl
form were unfair or otherwise against the public interest. Therefore, specific enforcement of
defendant’s written negotiated disposition agreement would not infringe on the
trial court’s discretion to determine such an agreement to be unsuitable. Furthermore, the terms of defendant’s written
negotiated disposition agreement were offered by the prosecution and accepted
by defendant. Under these circumstances,
the only remedy that would address the error at issue in this case is the
specific enforcement of defendant’s written negotiated disposition agreement.
DISPOSITION
The judgment is
reversed. On remand, we direct the trial
court to accept defendant’s plea in accordance with the terms of defendant’s
written negotiated disposition agreement contained in our record in the clerk’s
transcript at pages 175 through 182.
FYBEL,
J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
title="">[1] All further statutory references are to the
Penal Code.
in this appeal brought only by defendant, the information also alleged,
pursuant to section 667.5, subdivision (b), that Fuentez had suffered
two prior convictions for each of which he served a separate prison term. The information did not allege any prior
conviction enhancement allegations as to defendant.
