IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
October 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT ALAN JETER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F9359)
The opinion of the court was delivered by: Blease , J.
P. v. Jeter
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Robert Alan Jeter of petty theft with a prior (Pen. Code, § 666)*fn1 , and in a bifurcated proceeding, the trial court found true allegations defendant had one prior strike conviction (§ 1170.12) and served four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate term of eight years in prison, consisting of two years (the middle term) for petty theft, doubled for the strike prior, plus one year for each of the four prior prison term enhancements.
On appeal, defendant contends "[t]he trial court abused its discretion in refusing to consider and/or accept a plea bargain." We shall conclude that the trial court acted well within its discretion in refusing to accept defendant's plea on March 16, 2010, after defendant advised the court that he had not read the change of plea form, but that the court erred in failing to exercise its discretion to consider the plea bargain on March 25, 2010, after the prosecutor confirmed that the deal remained open, and defendant indicated his desire to accept. Accordingly, we shall reverse the judgment and remand the matter to the trial court to resentence the defendant after consideration of the plea bargain tendered the court prior to the trial of the matter.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts is not necessary to resolve the issue before us. Suffice it to say that defendant was caught leaving a ShopKo store with a hair straightener concealed in his jacket and pants. He had not paid for the item, which sold for $139.99.
Defendant was charged in an amended information with petty theft with a prior. In addition, the information alleged defendant had one prior strike and served five prior prison terms.
On January 11, 2010, defendant appeared before Judge James Ruggiero and pleaded guilty to attempted petty theft with a prior, admitted the prior strike allegation and one prior prison term in exchange for a stipulated four-year prison sentence. Two days later, however, the trial court vacated the plea agreement because attempted petty theft with a prior is not a crime. (See People v. Bean (1989) 213 Cal.App.3d 639, 642-644.)
On March 16, 2010, defendant again appeared before Judge Ruggiero and attempted to plead guilty to attempted second degree burglary in exchange for a stipulated four-year prison sentence. The following colloquy ensued:
"THE COURT: . . . . Sir, did you read and understand this change of plea form?
"The DEFENDANT: Not really.
"THE COURT: Okay. Do you want to give it back to him to read it and understand it, and--
"[DEFENSE COUNSEL]: Yes, Your Honor.
"THE COURT: Or we can just confirm the prelim. Whatever you want to do.
"[DEFENSE COUNSEL]: Mr. Jeter doesn't have a prelim. He's on for change of plea, Your Honor.
"THE COURT: Is he set for trial?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: All right.
"(Off the record discussion; other criminal matters handled)
"THE COURT: And that takes us back to Mr. Jeters [sic].
"[DEFENSE COUNSEL]: He's present in custody, Your Honor.
"THE COURT: Okay. What's going to happen on this case?
"[DEFENSE COUNSEL]: I believe that Mr. Jeters [sic] will be entering a plea to an amended count of an attempted 459 in the second degree. Stipulated.
"THE COURT: Okay. Let me go over this form with him then. All right. Mr. Jeters [sic], did you read and understand the change of plea form?
"THE DEFENDANT: Yeah, a lot better than I did the last time when I got four years with half time I took a deal for. And they gave me four years at 80 percent or 85 percent.
"THE COURT: So you read and understood this plea form?
"THE DEFENDANT: Yes. Or no, but I didn't read it. I read the part--I need glasses to see.
"THE COURT: Going to confirm the matter for trial. Here's the plea form. . . . The only way I'll take a plea from Mr. Jeters [sic] is a straight up plea to everything."
The trial was confirmed for March 25, 2010, before Judge Stephen Baker. That morning, Judge Baker asked the parties if there were any issues that needed to be addressed "before the jury comes in to get oriented." Defense counsel responded that defendant was still willing to take the previous plea deal, i.e. plead guilty to attempted second degree burglary and admit the prior strike and one prior prison term in exchange for a stipulated four-year prison sentence. The prosecutor confirmed the offer remained open and said that "[i]f defendant is willing to plead and take his four-year state prison sentence I think that's a good resolution." Judge Baker responded, "I can't take a plea . . . without the home court consent," and a recess was taken while he contacted Judge Ruggiero. When he returned, Judge Baker stated that he had spoken to Judge Ruggiero about the case "and the answer is no. Mr. Jeter can plead to the sheet if he wants . . . ."
Defendant declined to plead to the sheet, and a jury convicted him of petty theft with a prior. Thereafter, the trial court found the prior strike and four of the prior prison term enhancements true and sentenced defendant to eight years in prison.
"[A] plea bargain is ineffective unless and until it is approved by the court." (In re Alvernaz (1992) 2 Cal.4th 924, 941; see also § 1192.5.) "Although it is within the discretion of the court to approve or reject the proffered offer, the court may not arbitrarily refuse to consider the offer." (People v. Smith (1971) 22 Cal.App.3d 25, 30; see also People v. Sandoval (2007) 41 Cal.4th 825, 847-848 ["A failure to exercise discretion also may constitute an abuse of discretion."].)
Generally speaking, before taking a plea, a trial court must admonish a defendant of the constitutional rights that are being waived and the direct consequences of a plea of guilty or nolo contendere. (People v. Panizzon (1996) 13 Cal.4th 68, 80, 83.) "However, a court may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment." (Id. at p. 83.) Where, as here, such a form is used, the court must determine whether the defendant has read and understands the contents of the form, and has discussed them with his attorney. (In re Ibarra (1983) 34 Cal.3d 277, 286.) We find that Judge Ruggiero acted within his discretion in refusing to accept defendant's plea on March 16, 2010. A trial court does not abuse its discretion in declining to accept the plea of a defendant who engages in the insulting and trifling behavior of the type engaged in by defendant and who declines to affirm his understanding of the consequences of his plea.
The question here, however, is whether Judge Baker was bound by Judge Ruggiero's decision in light of the prosecutor's continued willingness to extend the plea offer and defendant's professed desire to accept. Judge Baker apparently believed that he was required to obtain Judge Ruggiero's consent before he could take defendant's plea based upon Shasta County Local Rule 13.05(A), which provides in pertinent part: "All felony cases . . . shall be assigned by the Presiding Judge . . . to one of two specific 'home court' departments for all proceedings and purposes except for trials." There is nothing in Local Rule 13.05(A) that suggests that after a case is assigned for trial, the trial judge must obtain consent from the home court judge before taking a plea. Indeed, it is not unusual for the parties to reach a deal during trial. Certainly, the trial judge would not then be required to obtain the consent of the home court judge before taking the plea. We conclude the matter must be reversed in light of Judge Baker's failure to exercise his discretion.*fn2
In any case, the record does not disclose any basis for Judge Ruggiero's refusal to allow Judge Baker to take the plea on March 25, 2010. There is no evidence defendant had not read or did not understand the change of plea form at that time. Indeed, no such inquiry was made. As for the terms of the deal, Judge Ruggiero previously allowed defendant to enter a plea based on essentially the same terms. While that deal later was vacated because the "crime" to which defendant pleaded guilty -- attempted petty theft with a prior -- is not a crime, the terms of the deal were essentially the same. In sum, the trial court's refusal to consider the plea deal on March 25, 2010, constituted an abuse of discretion.
Our reversal should not be taken to suggest that a trial court is obliged to accept the plea of a defendant who behaves as defendant did when the case was before Judge Ruggiero.
The judgment is reversed. The case is remanded to the trial court to resentence the defendant after consideration of the plea bargain tendered the court prior to the trial of the matter. In all other respects the judgment is affirmed.*fn3
We concur: RAYE , P. J. DUARTE , J.