The opinion of the court was delivered by: Butz ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Stephen Christopher Hamblin was charged with 31 counts of sexual conduct with two minors. As part of a plea bargain, he pleaded guilty to 27 counts, in exchange for the dismissal of four counts and a state prison sentence range. The trial court sentenced him to 16 years four months in state prison. Defendant timely appealed, and obtained a certificate of probable cause.
Defendant contends some counts, other than three as to which he waived the statute of limitations, were facially time-barred and must be reversed. The Attorney General partly concedes the point, contending that the cause must be remanded for a determination of which, if any, counts are factually time-barred, and contending that if any are factually time-barred, the remedy would be to allow defendant to withdraw his plea and reinstate the dismissed charges, not simply reverse the time-barred counts. We agree with the Attorney General. Defendant also attacks the sentence imposed and the procedures leading up to sentencing. Because defendant, on remand, might stand on his plea, we address those contentions, and reject them. We shall reverse and remand with directions.
On March 5, 2009, the People filed a 29-count complaint alleging sex crimes against two minor victims, identified as Jane Doe 1 and Jane Doe 2, dating back to 1998. At the preliminary hearing, defendant was held to answer, and the magistrate noted the evidence supported additional charges. On October 28, 2009, the People filed an amended information alleging 31 counts.
On that date, the parties entered into a plea bargain. The written plea form specifies 27 counts that defendant would admit, with minimum and maximum sentences for each count, and states the plea provides for "State Prison" for "Minimum 6 yrs maximum 20 yrs 4 mo at 50%." The box indicating probation and possible probation conditions is crossed out, and defendant initialed a box stating "I understand that I am not eligible for probation." Four counts (counts 1, 2, 20 and 21)*fn1 and all enhancements were to be dismissed. The factual basis for the plea was to be provided by the preliminary hearing transcript. The trial court accepted the plea bargain after ascertaining on the record that defendant fully understood it.
In part, the trial court stated there was no minimum requirement for a state prison sentence and discussed the sentencing range, but also stated, "in consideration of the district attorney's dismissal of the remaining charges against you, that minimum period of incarceration would be six years in state prison. Do you understand that? [¶] THE DEFENDANT: Yes."
Defense counsel explained that "some of these charges that were just added [are] technically barred by the statute of limitations, but because they contain the same [range] as other counts that could be added I didn't see any harm in putting them in there." Defendant then waived the statute of limitations as to counts 29, 30 and 31.
On November 24, 2009, the probation department filed aninitial report recommending probation, as well as a "Static-99" reoffense evaluation, which indicated defendant was at low risk of reoffense. On December 2, 2009, Dr. Gary Cavanaugh submitted an evaluation report also concluding defendant was at low risk of reoffense, stating "it would be important that [defendant] be prohibited from being alone with any minor female" if he were to be released. Taking this into consideration, along with victim impact statements, on December 7, 2009, the probation department submitted an amended probation report, recommending the maximum sentence contemplated by the plea bargain, 20 years four months, and sex offender registration.
The People's sentencing memorandum contended there was no need to address probation, because the plea called for a minimum prison term of six years. The People also contended that Dr. Cavanaugh's report was not prepared to determine defendant's suitability for probation (cf. Pen. Code, § 288.1),*fn2 but instead was prepared "at the request of the defense" to "assist the defense on sentencing." Attached to the memorandum was a declaration of prosecutor Dana L. Pfeil, regarding prosecutorial contacts with the probation department.
On December 8, 2009, defendant moved for a hearing regarding the prosecutorial contacts with the probation department, given the stark change in its recommendation. The prosecutor, Barbara Yook, tendered further declarations regarding contacts with the probation department.
At a hearing on December 14, 2009, defense counsel conceded probation had been precluded as part of the plea bargain, but nonetheless objected to the prosecutor's purported interference with the probation department's recommendation.
Defendant then moved for sanctions, a new probation report, and recusal of the district attorney's office.
The Attorney General and the district attorney opposed the recusal motion. The prosecutor submitted further declarations regarding contacts with the probation department, which we address later.
At a hearing on January 11, 2010, while defending the probation department's initial report, defense counsel again conceded the plea bargain precluded probation, stating "but for my stipulation that he would do six [years], [defendant] was eligible for probation. He is eligible for probation."
The trial court denied all of the defense motions, for reasons we explain later.
At sentencing, defense counsel again stated the plea bargain called for at least six years in prison, a figure he had proposed by figuring three years per victim.
The trial court stated that it had been "a little shocked" when it read the first probation report, in part because at the time of the plea bargain the judge had commented in chambers that it appeared defendant had been "grooming" the victims over a long period of time, but "all of those issues are irrelevant based on the stipulated sentence whereby [defendant] would, in fact, be sentenced to state prison in this case. So the Court does not and is not required to make a finding whether [defendant] is statutorily eligible for probation." The court then sentenced defendant to 16 years four months in state prison. Defendant was awarded 315 days of actual presentence credits and 156 days of presentence conduct credits. Because defendant was required to register as a sex offender, he was not entitled to the benefit of the more favorable conduct credit formula recently enacted. (§§ 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010] [one-for-one credit formula not applicable to sex registrants].)
Defendant timely filed this appeal, and received a certificate of probable cause.
The California Supreme Court has held that "when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time." (People v. Williams (1999) 21 Cal.4th 335, 341 (Williams).) The parties agree that, despite defendant's failure to raise the issue in the trial court, the bulk of the charges in the information are facially time-barred and defendant may challenge them in this appeal. Defendant contends those charges must be reversed. The Attorney General proposes a remand to determine whether any facially time-barred charges were nonetheless factually timely, and that if any charges are factually time-barred, defendant should be given an opportunity to withdraw his plea, in which case the dismissed charges should be reinstated.
As we shall explain, we agree with the Attorney General that we must remand for a factual hearing because we cannot tell from the record whether some charges are or are not time-barred. We also agree with the Attorney General's second point: Simply striking the defective counts would deprive the People of the benefit of the bargain. Instead, the appropriate remedy if some charges are found to be factually time-barred is to permit defendant to withdraw his plea and return the parties to the status quo ante by reinstating the dismissed charges.
Defendant pleaded guilty to 27 counts as follows:
* Sixteen counts of lewd act with a child aged 14 or 15 by a person at least 10 years older (§ 288, subd. ...