APPEAL from a judgment of the Superior Court of Yolo County, Thomas Edward Warriner, Judge. Reversed with directions. (Super. Ct. Nos. 07-6566, 08-2588).
The opinion of the court was delivered by: Nicholson, Acting P. J.,
CERTIFIED FOR PUBLICATION
To induce the defendant to plead guilty to all counts and admit the charged enhancement, the trial court promised, over the prosecutor's objection, to dismiss the enhancement and impose an agreed-upon sentence. We conclude this was an unlawful judicial plea bargain. Therefore, we reverse.
The district attorney alleged that defendant Aaron Michael Woosley committed a burglary (first degree) and, while released on his own recognizance, committed another burglary (second degree) and petty theft. (Pen. Code, §§ 459 [burglary], 484 [petty theft], 12022.1, subd. (b) [on-bail enhancement].)*fn1
On July 18, 2008, after the trial court asked defense counsel to "outline the situation[,]" the following took place:
"[DEFENSE COUNSEL]: . . . [¶] This is a conditional plea, the condition being that the Court will give [defendant] an opportunity on probation, but that will come with a four-year, eight-month suspended state prison sentence: Two years being for the burglary in the first-degree, two years being for the [on-bail] Enhancement, and eight months being for the second-degree burglary.
"THE COURT: Okay. [¶] I understand this is not with the approval of the District Attorney.
"[PROSECUTOR]: That's correct, Your Honor."
"[PROSECUTOR]: . . . [¶] . . . I would object to the Court giving a suspended prison promise at this time. I'd ask the Court to get the probation report, and if the Court still wants to give a suspended prison term promise, they can, or they can have the defendant withdraw the plea.
"THE COURT: What it amounts to that if I reject the plea, he can withdraw it, and then we'll be where we were, but if Probation's report comes back or if the Court is satisfied after reading the probation, this is a wise disposition.
"But in any event, we don't have to make the final arguments on this at this point, but it is without your approval.
"[PROSECUTOR]: It is without my approval."
The trial court accepted defendant's plea of no contest to the burglaries and petty theft, and his admission to the on-bail enhancement. Paragraph 8 of the preprinted plea form has a typed portion stating no threats or promises were made except as stated in a handwritten portion, in part as follows: "This is a conditional & negotiated plea. . . . These pleas are conditioned upon the defendant not receiving state prison at the outset. The defendant will receive 4 years 8 months suspended state prison sentence." Paragraph 11 was initialed, and it states: "My attorney has explained to me that if the court refuses to accept the above-stated agreement, I will be allowed to withdraw my plea."
The probation report noted in part that the pleas were "'conditional upon the defendant not receiving state prison at the outset. The defendant will receive 4 years 8 months suspended state prison sentence.' [¶] NOTE: The district attorney's office objects to this agreement."
The probation report states that defendant was 19 years old and homeless. His wife and two children live with her father. Defendant finished 11th grade, and has a lengthy juvenile record, including three felony adjudications, and several cases involving violence. Defendant was a ward of the juvenile court, on probation at the time of these offenses, and was not suitable for adult probation because of "excessive criminality[.]" The report recommends eight years eight months in state prison.
On August 14, 2008, defense counsel asked the trial court to follow the "indicated" sentence and place defendant on probation. ...