APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed. (Super.Ct.No. SWF022216)
The opinion of the court was delivered by: Ramirez P. J.
CERTIFIED FOR PUBLICATION
Pursuant to Penal Code section 1238, subdivision (a)(10),*fn1
the People appeal the judgment entered against defendant
and respondent Jose Luis Labora. They contend the judgment was a
result of judicial plea bargaining. We determine that the People have
standing and judicial plea bargaining did occur. Accordingly, we
reverse the judgment and direct the trial court to give defendant the
opportunity to withdraw his guilty plea.
On November 2, 2009, defendant pled guilty to forcible spousal rape (§ 262, subd. (a), count 1), assault with force likely to cause great bodily injury (§ 245, subd. (a)(1), count 2), making a criminal threat (§ 422, count 3), and false imprisonment (§ 236, count 4). He also admitted using a dangerous weapon during the count 2 assault. (§§ 667, 1192.7, subd. (c)(23).) Defendant's plea was conditioned on receiving a sentence of six years.
The trial court commenced the change of plea hearing by noting it had found a change of plea form waiting on the bench when it arrived. The plea form indicated that the plea was a plea to the court, with a custody term of six years. The trial court found a factual basis in the preliminary hearing transcript, which it had previously read for pretrial motions. While obtaining defendant's plea and necessary waivers, the trial court stated: "Now, in the change of plea form, as I said when we started, I have indicated I've discussed this case with your attorney and the district attorney--and I'm sure he's told you about that--and I told him when he said you were contemplating doing this, and he asked what sentence I would get. And based on the fact that you're--my understanding of your record is that you have one previous conviction, which was a misdemeanor, domestic violence case involving the same victim as in this case. And that was all. And in view of that, I said I would give you a mid-term for the first count or six years, and run the others concurrent. [¶] Now, that's what I said. This is not an agreement between myself and the district attorney or anything, just my unilateral say about what the sentence would be. [¶] Other than that which you have--that's what I said, and that's what I would do. I mean, I'm a man of my word."
After the plea was entered and accepted, the prosecutor requested, and was permitted, to voice her objection to the plea. "Your Honor, as the Court knows and we talked about it in chambers, and I know it was stated previously on the record that this was a plea to the Court, but the People object to having the Court allow the defendant to enter a plea on the day of trial on the day set for jury selection. And, additionally, I just wanted to make it clear that initially the Court's indicated sentence to the defendant had been six years, eight months." The trial court responded, "I said--we were talking about it and I said I'd go with the middle term. And I said I might go with the one of the 1623 [sic] consecutive. That's what I said, yeah." The prosecutor replied, "And I know we went back into chambers after lunch, and defense counsel had asked the Court to consider running everything concurrent to the middle term of six years on Count 1. And it is the People's position that that is--that amounts to judicial plea bargaining. So, for that reason, we also object to the plea, as well as, objecting to allowing the defendant to plead guilty pursuant to [People v. West (1970) 3 Cal.3d 595]. [¶] So, for those reasons, we object. Thank you." The trial court then adjourned the hearing.
At the beginning of the sentencing hearing, the People again objected: "I know I put this part of it on the record last time, but the People do object to the plea to the Court based on the fact that when we were in chambers . . . as we were going through the [Evidence Code section] 402 motions, I believe defense asked for an indicated sentence in this case from the Court. And the Court indicated six years and eight months. [¶] After the lunch hour, the defense indicated that the defendant was considering that, but would the Court be inclined to give him six years instead of the six years and eight months previously indicated. And I know that the Court indicated at that time it felt it was being a little bit nickel[ed] and dimed by the defense, but agreed to it anyway. [¶] For those reasons the People do object to the plea to the Court based on the fact that it seems to be judicial plea bargaining with his Honor and defense counsel." Defense counsel then addressed the allegation, "At any time a defendant, as this Court knows, can plea to the Court. [Defendant] did plea to everything. He pled as charged. And the Court did give an indicated sentence of six years. I do not believe it was judicial plea bargaining. It simply was an indicated of six years in which he took [sic]. I don't think there's any merit to judicial plea bargaining."
The trial court then responded, "Well, first of all, I'm not sure what the People--other than reciting what they recited, I don't--I'll try to put it this way: I can only--people can say whatever they want to say, generally within bounds, which everything has been so far. But in order for me to do something, somebody has to say what they want me to do or not to do. And nobody said anything. I mean, nobody said, 'Judge, I have a motion. I want you to do this.' Then I can respond. [¶] But if they just say this is what happened, there's nothing to respond to. That's what I'm trying to say. So as of right now, um, I'm just saying, I hear you, and we discussed this--I mean, this isn't the first time that you said that. And this is--nothing has changed about the sequence of events and so forth. And so I'm construing it as the People wanted to make the record clear about what they thought, and the record is quite clear. It's been from the first, and I respect that. But I'm ready to proceed."
After statements by the prosecutor, the victim, and relatives, as well as recitation of a letter from the defendant's mother, defendant's trial counsel presented his sentencing argument. Defendant's trial counsel concluded his argument by noting that the plea was "a People versus West plea. The reason that [defendant] decided to enter into this plea to the Court was because of the fact that in chambers we had gone over evidentiary motions. And this Court did state that you were going to allow in all the [Evidence Code section] 1109 evidence. You were also going to allow in all the [Evidence Code section] 1109 [subdivision] (e) evidence. Moreover, the Court was going to allow in the [Evidence Code section] 1108 evidence. And following that, you were going to preclude any of the [Evidence Code section] 1103 he had against the complaining witness. [¶] Based on that, and the overwhelming evidence that was presented, [defendant] did decide to take a plea to the Court."
The trial court then explained, at length and in detail, its sentencing decision, including stating, "I still have to decide what the appropriate sentence should be and what . . . should be done. I have to make that decision." The trial court concluded, "Long and short of it is, I think that the sentence I contemplated before is the appropriate one." The trial court then imposed a midterm sentence of six years for count 1, with concurrent midterms imposed on the remaining counts. Thus, the trial court imposed the sentence term upon which defendant's plea was conditioned.
The People contend the judgment is a result of judicial plea bargaining. Defendant contends: 1) the People are not authorized to bring this appeal; 2) judicial plea bargaining did not occur; and 3) that if improper judicial plea bargaining occurred defendant is still entitled to specific performance of the initial indicated sentence of six years eight months.*fn2 Without conceding, the People do not object to defendant's proposed remedy should they prevail. We determine that the People may raise this issue on appeal, that judicial plea bargaining did occur, ...