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The People v. Wesley Cian Clancey

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


January 10, 2012

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
WESLEY CIAN CLANCEY, DEFENDANT AND RESPONDENT.

Trial Court: Santa Clara County Superior Court Trial Judge: Honorable Rene Navarro (Santa Clara County Super. Ct. Nos. C1072166, C1073855)

The opinion of the court was delivered by: Mihara, J.

CERTIFIED FOR PUBLICATION

The trial court made an offer to defendant Wesley Cian Clancey, over the prosecutor's objection, that, if defendant admitted all of the charges and allegations, the trial court would grant his motion to strike a strike and would impose a five-year state prison term or allow defendant to withdraw his pleas and admissions. The issue before us in this case is whether this was an unlawful judicial plea bargain or a lawful "indicated sentence." We conclude that the trial court engaged in unlawful judicial plea bargaining. Consequently, we reverse the judgment and vacate defendant's pleas and admissions.

I. Background

Defendant was charged by complaint in one case with two counts of forgery (Pen. Code, § 470, subd. (d)), two counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)), and false personation (Pen. Code, § 529). He was charged in a separate case by an amended complaint with second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), concealing stolen property (Pen. Code, § 496, subd. (a)), three counts of attempted grand theft (Pen. Code, §§ 484, 487, subd. (a), 664), misdemeanor access card fraud (Pen. Code, §§ 484g, subd. (a), 488), felony access card fraud (Pen. Code, §§ 484g, subd. (a), 487), misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1)), and misdemeanor providing a false name to an officer (Pen. Code, § 148.9). The amended complaint also alleged an on-bail enhancement (Pen. Code, § 12022.1) and a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).

At a change-of-plea hearing, defendant's trial counsel announced that defendant would be "pleading as charged" and admitting the "strike prior allegation," and "[i]t's anticipated at the time of sentencing the Court will grant an oral Romero motion, [and] thereafter sentence Mr. Clanc[e]y to five years in state prison." The prosecution objected to "the Court offer" because the court had "promised five years" and "[t]he only way to get to that term would be for the Court to strike his prior serious felony conviction." The court responded that this matter was on the "Early Resolution Calendar" and that "matters that are placed in ERC calendar [sic] are usually with the understanding of both sides settled for somewhat less than the going disposition at a trial department." The court thereafter asked defendant: "Mr. Clanc[e]y, did you hear your plea agreement?" Defendant acknowledged that he had, and the court asked: "You agree with it?" Defendant said "Yes, sir." The court proceeded to advise defendant of his rights and obtain his waivers of them. It then asked the prosecutor if he wished to engage in further examination of defendant. The prosecutor obtained defendant's acknowledgement that he was aware his maximum term was 16 years and eight months in prison and his minimum term was 11 years and four months, but he was "being promised no more than or less than five years in state prison." Defendant then pleaded no contest to all of the charges in both cases and admitted the on-bail and strike allegations.

The probation report stated that the "CONDITIONS" of defendant's pleas and admissions were "Prison term of five years top/bottom . . . ." Although the probation officer ultimately concluded that he "concurs with the Court's indication of a State Prison commitment of five years," he also stated that this was "in accordance with the negotiated plea." The probation report also noted that, "[t]o stay within the parameters of the negotiated plea," the court would need to strike the punishment for the on-bail enhancement.

The trial court conceded at the sentencing hearing that the prosecutor's objections, "if they were viewed in a vacuum," made it appear that "the court engaged in plea bargaining." However, the court insisted that "if you step away from that vacuum and you view this matter in the totality of the circumstances as how the court operates and has been operating for the past three years that I've been doing this assignment, I think that for purposes of any reviewing court, I need to outline for the reviewing court how the conferences are structured and how they're held." The trial court went on to describe how the "Early Resolution Department" functioned. "[I]t's [sic] function and it's [sic] assignment [is] to settle cases." It recounted how it had had before it a great deal of information about defendant before it made a decision about its "offer." "So it isn't as though the court made an offer in a vacuum, but rather it was an informed offer that the court had, given the nature of the circumstances." The court "felt that the offer was a fair offer given the circumstances and what I knew of the case." The court highlighted that it was "understood" among all of the parties "that if there's anything new that comes up, that the court has the ability to set it aside and to put the parties back in their original positions and not to make it a condition of the plea." The court noted that, on past occasions, it "has set aside pleas where I had indicated a sentence" and then learned additional circumstances that "allowed the court to set aside the plea." "And it isn't as though the court is engaging in plea bargaining because of the history that I've indicated for the record, that the district attorney, through their representatives have consented to."

Defendant's trial counsel noted, and the trial court agreed, that defendant would be entitled to withdraw his pleas and admissions if the court did not "honor [its] agreement" to strike the strike and impose a five-year prison term. Over the prosecutor's objections, the trial court then struck the strike finding and imposed the five-year prison term, which the court referred to as "the agreed upon disposition." The prosecutor timely filed a notice of appeal.

II. Discussion

A. Statutory and Case Authority

" '[P]lea bargaining' " is statutorily defined as "any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant." (Pen. Code, § 1192.7, subd. (b), italics added.) Hence, a "discussion" between a judge and a criminal defendant that produces the defendant's agreement to plead guilty or no contest in exchange for a sentencing commitment by the judge is a judicial plea bargain.

Judicial plea bargaining has long been proscribed. The seminal case on the prohibition against judicial plea bargaining is People v. Orin (1975) 13 Cal.3d 937 (Orin). In Orin, the trial court had plainly entered into a plea bargain with the defendant, under which it agreed to dismiss some of the charges, over the prosecutor's objections. (Orin, at pp. 940-941.) The trial court explicitly told the defendant that it would allow him to withdraw his plea if it decided not to proceed with the bargain. (Orin, at p. 948.) The California Supreme Court strongly disapproved of the trial court's actions.*fn1 "[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of 'plea bargaining' to 'agree' to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor's consent to the proposed disposition, [fn. omitted] would detract from the judge's ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge's participation in the matter." (Orin, at p. 943.) The California Supreme Court noted that "[i]t is for these reasons that many authorities considering the question have condemned the concept of 'judicial plea bargaining.' " (Orin, at p. 943, fn. 9.)

After Orin came People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270 (Felmann), in which the Court of Appeal recognized a distinction between prohibited judicial plea bargaining and what it viewed as a permissible "indicated sentence." In Felmann, the trial court, over the prosecutor's objection, accepted the defendant's conditional offer to plead no contest in exchange for a grant of probation with the proviso that the defendant could withdraw the plea if the court decided, after reviewing the probation report, to not grant probation. (Felmann, at pp. 273-274.) The prosecutor sought writ relief. (Felmann, at p. 274.) The Court of Appeal first pointed out that "[t]he 'plea bargaining' process foreclosed to the judicial branch of government includes the acceptance of a plea of guilty in return for 'clement punishment.' " (Felmann, at p. 276.) "A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right. Leniency in return for a plea of guilty or no contest must be negotiated by the defendant with the prosecutor." (Ibid.) "But a court may indicate to a defendant what its sentence will be on a given set of facts . . . . [I]f the facts as developed are as assumed for the purpose of indicating the sentence, that sentence may then be imposed. If not, then defendant has the option of going to trial or accepting harsher treatment on a guilty or nolo contendere plea. Unless form is exalted over substance, the facts which are the assumed basis of sentence may be expressed in the form of the basis of a conditional plea reserving the defendant's right to withdraw the plea and go to trial in the event the court determines that the facts recited are not confirmed in a fashion which enables it to sentence the defendant in accord with the condition. Substance and not form must control." (Ibid.) The Court of Appeal then concluded that the record was unclear as to whether the trial court had provided an indicated sentence or entered into an unlawful plea bargain. (Felmann, at p. 277.) It issued a writ requiring the trial court to reconsider the conditional plea and accept it only if lenient treatment was not being provided "solely because of the plea." (Felmann, at pp. 277-278.)

In In re Lewallen (1979) 23 Cal.3d 274 (Lewallen), the California Supreme Court approved of the portions of Felmann prohibiting judicial plea bargaining. " 'A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.' " (Lewallen, at pp. 278-279.) A trial court acts improperly if its sentence is premised on the defendant agreeing to plead guilty. (Lewallen, at p. 279.) "[A] trial judge is precluded from offering an accused in return for a guilty plea a more lenient sentence than he would impose after trial." (Lewallen, at p. 281.) The California Supreme Court did not address Felmann's endorsement of the practice of providing an indicated sentence or its assertion that an indicated sentence could properly provide a defendant with the right to withdraw the pleas if the court decided not to impose the indicated term.

In People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909 (Smith), the trial court "advised the defendant of what sentence would be imposed if defendant pleaded guilty, with the sole caveat that if the probation investigation disclosed significant, theretofore unknown, facts which would alter the judge's assessment of the case the defendant would be permitted to withdraw his plea." (Smith, at p. 912.) The trial court made clear that the indicated sentences would be available only if the defendants pleaded. (Smith, at pp. 913-914.) The defendants then entered pleas, and the prosecutor sought writ relief, claiming that the court had entered into illegal plea bargains. (Smith, at p. 912.) The Court of Appeal disapproved of the trial court's actions as prohibited judicial plea bargaining, but it concluded that writ relief was unavailable. (Smith, at pp. 915-916.)

People v. Superior Court (Ludwig) (1985) 174 Cal.App.3d 473 (Ludwig) was also a petition for writ relief by a prosecutor challenging the trial court's acceptance of a plea as an illegal plea bargain. (Ludwig, at p. 474.) The trial court had entered into a " 'plea bargain over the District Attorney's objection' " under which the court offered the defendant a maximum term of eight years in state prison to " 'induce' " his guilty plea. (Ludwig, at p. 475.) The Court of Appeal concluded that this was an improper judicial plea bargain and granted writ relief requiring the court to vacate its acceptance of the plea. (Ludwig, at p. 476.)

In People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261 (Ramos), the trial court informed Ramos that, if he pleaded guilty, the court would impose a two-year prison term. (Ramos, at p. 1265.) The "court indicated that, if Ramos were to plead guilty, the court would commit to 'two years in prison.' " (Ibid.) The prosecutor objected that this was prohibited plea bargaining. (Ibid.) The trial court rejected his objection. Ramos pleaded guilty and was sentenced to two years in prison. Although the Second District Court of Appeal noted that the trial court had "used the words 'promise' and 'commitment,' " the Second District nevertheless concluded that this was an " 'indicated sentence' " because the trial court's "choice of words is not determinative." (Ramos, at p. 1266 & fn. 2.) In a separate case also decided in the Ramos opinion, the trial court told Larsen, who was facing a burglary count and three prison prior allegations, that, if he pleaded, it would commit to impose the two-year middle term for the burglary count and two years for the two most recent prison priors, and that it would consider striking the remaining prison prior. The trial court stated that its " 'commitment' " was in " 'consideration for a plea today.' " (Ramos, at p. 1267, fn. 3.) Larsen pleaded guilty and admitted the prison priors. The court decided not to strike the third prison prior, and it imposed a five-year prison term. (Ramos, at pp. 1266-1267 & fn. 3.) The Court of Appeal found that this too was a proper indicated sentence, and it denied the prosecutor's writ petitions in both cases. (Ramos, at p. 1267.)

In People v. Allan (1996) 49 Cal.App.4th 1507 (Allan), the defendant was charged with two narcotics counts and was alleged to have suffered a prior strike and five prison priors. (Allan, at p. 1510.) When the case was called for trial, the trial court struck the strike allegation and informed the defendant that she would receive a three-year prison term if she pleaded guilty to one of the two counts. (Allan, at pp. 1510-1511.) She did so, and the court then imposed the three-year prison term, "[p]ursuant to the agreed disposition offered by the court," and dismissed the remaining count and allegations. (Allan, at p. 1512.) The prosecution appealed, and the Court of Appeal, finding the trial court's actions to be "strikingly similar" to those of the trial court in Orin, concluded that this was an illicit judicial plea bargain and reversed the judgment. (Allan, at p. 1515.) It contrasted the trial court's actions with an indicated sentence. "In an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed." (Allan, at p. 1516.)

Two recent cases have also found that trial courts engaged in proscribed judicial plea bargaining. The first of the two was People v. Woosley (2010) 184 Cal.App.4th 1136 (Woosley). In Woosley, the defendant was charged with two counts of burglary and one count of petty theft, and an on-bail enhancement was alleged. (Woosley, at p. 1140.) The court offered, over the prosecutor's objection, to grant the defendant probation with a suspended prison term if he pleaded, with the proviso that the defendant could withdraw his pleas and admission if the court, after reviewing the probation report, decided not to proceed as offered. (Woosley, at pp. 1140-1141.) After receiving the probation report, the court was not willing to proceed. The defendant then made another " 'conditional plea' " premised on the court agreeing to a state prison term of two years and eight months. The court accepted this conditional plea with the same proviso. (Woosley, at pp. 1142-1143.) The court thereafter imposed the agreed prison term, which necessitated dismissing the on-bail enhancement, and the prosecution appealed. (Woosley, at p. 1144.) The Court of Appeal held that the trial court had engaged in "unlawful judicial plea bargaining" when it "induced defendant to plead guilty in exchange for a commitment to dismiss the on-bail enhancement to reach the agreed-upon sentence." (Woosley, at pp. 1144-1145.) The key factor for the court in distinguishing the trial court's actions from an indicated sentence was that the sentence offered by the court required it to dismiss the on-bail enhancement. (Woosley, at p. 1147.)

The second recent case was People v. Labora (2010) 190 Cal.App.4th 907 (Labora). In Labora, the defendant pleaded guilty to all four counts and admitted a special allegation after the court promised that it would impose the six-year middle term for one count and run the sentences for the other counts concurrent. (Labora, at p. 910.) The court's promise occurred after it had initially told the defendant he would receive a sentence of six years and eight months, but the defendant had persuaded the court to reduce that to six years. (Labora, at p. 911.) Over the prosecutor's objections, the court imposed the promised six-year term, and the prosecution appealed. (Labora, at p. 912.) The Labora court, relying heavily on Woosley, concluded that the trial court had engaged in unlawful judicial plea bargaining. (Labora, at pp. 914-916.) The key factor for the Labora court was that the court initially offered a higher "indicated sentence" and then reduced it, which was indicative of bargaining. (Labora, at p. 916.)

B. Standard of Review

"We review allegations of judicial plea bargaining for abuse of discretion. This is because we may void the act of a trial court that is 'in excess of the trial court's jurisdiction' [citation], and ' "judicial plea bargaining in contravention of existing law are acts in excess of a court's 'jurisdiction' " . . .' [citation]."*fn2 (Labora, supra, 190 Cal.App.4th at p. 914.)

C. Analysis

The prior cases that have considered this issue have failed to devise a clear and coherent test for determining whether a trial court's actions amounted to an improper judicial plea bargain or were instead a permissible indicated sentence. In our view, two principles govern the distinction between a judicial plea bargain and an indicated sentence.

First, an "offer" by the court that is contingent on a defendant pleading guilty or no contest cannot be a proper indicated sentence because it induces a defendant to plead guilty or no contest. A trial court " 'may not offer any inducement in return for a plea of guilty or nolo contendere.' " (Lewallen, supra, 23 Cal.3d at pp. 278-279.) A proper indicated sentence is not premised on guilty or no contest pleas, but applies whether or not the defendant chooses to proceed to trial.*fn3 To the extent that the Second District's decision in Ramos may be read to approve of pleas that were the product of "indicated sentences" that were contingent on the defendants admitting all of the charges and allegations, we must disagree with it on this point.

Second, an "offer" by the court that provides the defendant with the option to withdraw the guilty or no contest pleas and any admissions if the court decides to impose a sentence other than the one offered is not a proper indicated sentence. Since a true indicated sentence may not be premised on the defendant entering guilty or no contest pleas, and may not be part of a "bargain" between the court and the defendant, the court's decision to impose something other than the originally indicated sentence affords a defendant no basis for withdrawal of the pleas. The Felmann court suggested in dicta that the trial court's failure to impose the indicated sentence would provide a defendant with the right to withdraw the pleas. We disagree with that portion of Felmann.

The trial court's actions in this case violated the first principle by inducing defendant's pleas and admissions. The court informed defendant through the plea colloquy that it would impose a five-year term and strike the strike if he admitted all of the charges and allegations. This was an improper inducement for defendant to enter pleas and admissions. The trial court saw its role as "to settle cases" and believed that its offer was an "informed" one, but this does not establish, as the trial court suggested, that the court was not engaging in plea bargaining. The settlement of a case necessarily involves an exchange of promises. It is not necessary that there be negotiation. Here, the trial court agreed to impose a five-year prison sentence and strike the strike in exchange for defendant's pleas and admissions. Because the court's goal was "to settle cases," its offer was contingent on defendant pleading and would not have been valid if he chose to exercise his right to trial. Thus, the court's offer improperly induced the pleas and admissions in violation of the first principle.

The trial court also violated the second principle. In making a commitment that defendant could withdraw his pleas and admissions if the court did not follow through on its offer, the court confirmed the existence of a bargain. The court thereby guaranteed defendant that he would either receive the offered five-year term or be returned to his original position, a risk-free position for defendant.*fn4

It follows that the trial court's "offer" was not a proper indicated sentence because it was (1) conditioned on the defendant pleading to all counts and admitting all allegations, and (2) operated as a commitment by the judge to impose the offered sentence or to allow the defendant to withdraw the pleas and admissions. The court's "offer" violated both of the principles that distinguish a proper indicated sentence from an improper judicial plea bargain.

A true indicated sentence is not a promise by the trial court. It is nothing more than a prediction. A true indicated sentence does not induce a plea because it is not contingent on settlement of the case: the court's prediction is valid whether the defendant pleads or goes to trial. A true indicated sentence is not a risk-free proposition for a defendant: if the court learns something new that makes its prediction inaccurate, the defendant is vulnerable to a sentence other than the indicated one and has no right to withdraw the plea. Here, the court's "offer" was not a true indicated sentence because it lacked these characteristics. Hence, the court engaged in prohibited plea bargaining, and the judgment must be reversed.

We recognize the necessity and importance of resolving cases expeditiously. However, a trial court's attempt to promote the early resolution of a case by means of an indicated sentence must comport with the principles we have set forth above, which are mandated by California Supreme Court precedent. (Orin, supra, 13 Cal.3d 937, 943; Lewallen, supra, 23 Cal.3d at pp. 278-279; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III. Disposition

The trial court's judgment is reversed, and it is directed to vacate defendant's pleas and admissions.

I CONCUR:

Bamattre-Manoukian, Acting P. J.

LUCERO, J., Dissenting

I respectfully dissent. The majority, by disavowing 35 years of precedent, is implicitly inviting the California Supreme Court to determine the continued vitality of resolving criminal charges short of trial by the trial court's indication of a sentence. I will explain why I believe that this indicated sentence practice remains vital and that there is no reason to change the law and impose further restrictions on the role of trial courts.

The central questions in this appeal are how far can the trial court go in attempting to resolve criminal charges short of trial and did the court in this case cross the line? That line is the same constitutional line that separates the powers of California's government (Cal. Const., art. 3, § 3), assigning to prosecutors the sole discretion to determine in the exercise of their executive powers whom to charge with public offenses and what charges to bring (People v. Birks (1998) 19 Cal.4th 108, 134) and to judges the sole discretion in the exercise of their judicial powers to dispose of those charges and impose sentences within limits set by the Legislature. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 511-512 (Romero); cf. People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 916 (Smith) ["The matter of ultimate sentencing is a matter of judicial discretion to be exercised within limits prescribed by the Legislature."].)

To clarify where I respectfully disagree with the majority, I will first identify what I believe is the common ground on which we stand. Then I will highlight where we disagree on the law and the facts of this case and finally explain why I believe that the People have failed to establish that the trial court in this case engaged in illegal plea bargaining.

1. Criminal Sentencing is an Inherently Judicial Function.

The People and the majority do not dispute that the trial court will have to make numerous discretionary decisions in imposing sentence if defendant goes to trial and is convicted as charged of all eleven felonies and three misdemeanors, with true findings of a prior strike and the commission of many charged crimes while released on bail.*fn5 I will elaborate on these decisions to establish that sentencing and the dismissal of charges at sentencing are inherently and fundamentally judicial functions.

First, the trial court will need to determine which, if any, of defendant's crimes are felonies. When a crime is alternatively punishable by imprisonment in the county jail or state prison, it is a "wobbler." Except for the crimes that were strictly misdemeanors, all of defendant's other crimes―second-degree burglary (§ 461, subd. (b)), forgery (§ 473), grand theft (§ 489, subd. (b)), concealing stolen property (§ 496), misuse of an access card (§ 484g), and false personation (§ 529)―were wobblers. Even though defendant has a prior strike, the "Three Strikes" law does not preclude the sentencing court from exercising its discretion under section 17 to treat as a misdemeanor a crime that can be punished alternatively as a felony. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974-975.)

Second, assuming the trial court were to find that at least one of these crimes requires a prison sentence, the court would need to consider whether to strike defendant's prior strike as to any or all felony counts. The finding of a single prior strike has a number of consequences under the Three Strikes statutes for current felony convictions. The statutes require the trial court to double the determinate term imposed. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The defendant is limited to earning one-fifth of available sentence credits in prison. (§§ 667. subd. (c)(5), 1170.12, subd. (a)(5).) The statutes also mandate consecutive sentencing for each felony count that is "not committed on the same occasion, and not arising from the same set of operative facts." (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6); cf. People v. Casper (2004) 33 Cal.4th 38, 43.) As to crimes committed on the same occasion, the sentencing court retains discretion to impose either consecutive or concurrent sentences. (People v. Hendrix (1997) 16 Cal.4th 508, 514; People v. Deloza (1998) 18 Cal.4th 585, 596.)

The Three Strikes statutes enacted by the Legislature and the voters in 1994 require prosecutors to plead and prove all known prior felony convictions, but they also allow prosecutors to seek dismissal under section 1385. (§§ 667, subds. (f), (g), 1170.12, subds. (d), (e).)*fn6 In order to avoid violating the constitutional separation of powers, Romero, supra, 13 Cal.4th 497 construed the Three Strikes statutes as not precluding trial courts from dismissing strikes on their own motions within the restrictions of section 1385.*fn7 (Id. at p. 505.) Later cases have elaborated on the confines of the trial court's discretion to strike strikes. (E.g., People v. Williams (1998) 17 Cal.4th 148, 160-161.) The court also has discretion to strike a strike as to some counts and not others. (People v. Garcia (1999) 20 Cal.4th 490, 499.)

Third, the court will need to consider whether to impose or strike the on-bail enhancement. That enhancement seemingly requires imposing a two-year penalty enhancement consecutive to any other term imposed (§ 12022.1, subd. (b)),*fn8 but the trial court retains discretion to strike this enhancement under section 1385. (People v. Meloney (2003) 30 Cal.4th 1145, 1149.) That statute also requires imposition of a prison sentence for a secondary crime committed while released on bail consecutive to the sentence for the primary count. (§ 12022.1, subd. (e).)*fn9 However, when there is more than one secondary crime, the trial court retains discretion to determine whether to impose consecutive or concurrent sentences as to the other secondary crimes. (People v. Tillotson (2007) 157 Cal.App.4th 517, 544-545.)

Fourth, if the trial court avoids the mandatory consecutive sentencing provided for in the Three Strikes statutes and section 12022.1 by striking the strike as to all counts and the on-bail enhancement, it will need to decide whether to impose a consecutive or concurrent sentence as to each of the counts. (§ 669; Cal. Rules of Court, rule 4.425.)

Fifth, the court will need to determine whether any punishment should be stayed under section 654 for multiple crimes committed in a single course of conduct with a single objective. Section 654, subdivision (a) was amended in 1997 to require the trial court to impose "the longest potential term of imprisonment" for "[a]n act or omission that is punishable in different ways by different provisions of laws." (People v. Kramer (2002) 29 Cal.4th 720, 722.) Nevertheless, trial courts retain some discretion to identify the defendant's primary objective. (People v. Cleveland (2001) 87 Cal.App.4th 263, 268.)

Sixth, when a sentencing court decides to impose a consecutive term of imprisonment, the Determinate Sentencing Law requires the court to determine an aggregate term of imprisonment including both the principal and all subordinate terms. (§ 1170.1, subd. (a).)*fn10 As this court concluded in People v. Miller (2006) 145 Cal.App.4th 206, the dictates of section 1170.1 do not require the trial court to select any particular count as the principal term. The court has discretion to structure the sentence in different ways. (Id. at p. 218.)

Seventh, in determining the principal term, the court must consider whether to impose the upper, middle, or lower term for the offense. When the punishment for a felony is not otherwise specified, as it is not for any of defendant's crimes, the range of punishment is from a lower term of 16 months to a middle term of two years to an upper term of three years. (§ 18.) "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, subd. (b).) "In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b); emphasis added.)

In short, if defendant is convicted as charged after trial, the trial court will face a multitude of discretionary sentencing decisions. I have no reason to question that defendant's maximum sentence for being convicted as charged would be 16 years 8 months, as the prosecutor advised defendant at his change of plea hearing.

Though the Determinate Sentencing Law was expressly intended to promote uniformity in punishment (Dix v. Superior Court (1991) 53 Cal.3d 442, 456-457), sentencing courts exercise "broad discretion to tailor the sentence to the particular case." (People v. Scott (1994) 9 Cal.4th 331, 349.) Judicial tailoring of the sentence to fit the crime and the criminal has also been identified as the objective of the court's discretion under section 1385 (People v. Williams (1981) 30 Cal.3d 470, 489)*fn11 and under section 654 (People v. Latimer (1993) 5 Cal.4th 1203, 1211). This principle also underlies the constitutional prohibition of cruel and unusual punishment. (People v. Dillon (1983) 34 Cal.3d 441, 479.)

Reviewing all the sentencing options provided by the criminal statutes applicable to this case emphasizes that "[t]he imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions." (People v. Navarro (1972) 7 Cal.3d 248, 258; People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 275 (Felmann).)

2. Trial Courts Have a Role in Plea Bargaining

Cases and statutes have recognized that trial judges and prosecutors have different roles to play in resolving criminal cases short of trial. People v. Orin (1975) 13 Cal.3d 937, 942-943 (Orin) described some of the statutes authorizing plea bargaining as follows. "The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604-608.) Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. (People v. West, supra, 3 Cal.3d at p. 604.) This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People's acceptance of a plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or kind (People v. West, supra, 3 Cal.3d at p. 608), or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the 'bargain' worked out by the defense and prosecution. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West, supra, 3 Cal.3d at pp. 607-608.)"

As indicated in Orin, a defendant who is willing to waive the constitutional rights involved in a trial may engage the prosecutor in "charge" bargaining to obtain a reduction in charges and "sentence" bargaining for either a specified sentence or a sentence within a range up to a specified maximum. (People v. Labora (2010) 190 Cal.App.4th 907, 914 (Labora).) The result of plea bargaining between the defendant and the prosecutor is a plea bargain or negotiated plea agreement.*fn12 A negotiated plea agreement is a form of contract and is interpreted according to general contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Segura (2008) 44 Cal.4th 921, 930.)

I do not understand the People or the majority to question that the trial court has a role in approving of plea bargains that have been negotiated between the prosecution and the defendant.

By statute the court's approval is not binding, but conditional. Section 1192.5 provides in part: "If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so." On the other hand, approval of a plea bargain does restrict the court, depending on the terms of the bargain, to imposing the exact sentence specified or a sentence within the range specified by the bargain. The court cannot impose a punishment more severe than that specified in the plea. (Ibid.) "However, by negotiating only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit." (People v. Buttram (2003) 30 Cal.4th 773, 789.)

Orin identified some restrictions on the judicial role under this paradigm of negotiation between the prosecutor and the defendant. "[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of 'plea bargaining' to 'agree' to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor's consent to the proposed disposition, [fn. omitted] would detract from the judge's ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge's participation in the matter." (Orin, supra, 13 Cal.3d 937, 942-943.) This discussion in Orin was elaborate dicta, as that case did "not involve a plea bargain." (Id. at p. 943.)*fn13

3. The Nature of an Indicated Sentence under Established Precedent

While a number of statutes require prosecutorial consent to certain forms of plea bargains, the prosecutor's consent is not required for a defendant to plead "to the sheet", guilty or no contest as charged, admitting all enhancements. (Smith, supra, 82 Cal.App.3d 909, 915; People v. Vergara (1991) 230 Cal.App.3d 1564, 1567 (Vergara); Ramos, supra, 235 Cal.App.3d 1261, 1271; see People v. Allan (1996) 49 Cal.App.4th 1507, 1516 (Allan).) This exception has provided the basis for development of a different paradigm for disposing of criminal cases short of trial, the indicated sentence. This section will review established precedent. The next section will point out where the majority departs from it.

Felmann, supra, 59 Cal.App.3d 270 is the earliest California appellate case I have found to discuss the practice of indicating a sentence. In that 1976 case, a majority of the Second District Court of Appeal (Div. 1) concluded "a court may indicate to a defendant what its sentence will be on a given set of facts without interference from the prosecutor except for the prosecutor's inherent right to challenge the factual predicate and to argue that the court's intended sentence is wrong." (Id. at p. 276.) "[S]section 1192.5 cannot constitutionally be construed to prevent a trial judge from indicating what sentence he will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by a plea." (Id. at p. 273; cf. Smith, supra, 82 Cal.App.3d 909, 915-916; Ramos, supra, 235 Cal.App.3d 1261, 1271.) "In an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed." (Allan, supra, 49 Cal.App.4th 1507, 1516.)*fn14

The California Supreme Court has recognized this practice in dictum. "Where the defendant pleads 'guilty to all charges . . . so all that remains is the pronouncement of judgment and sentencing' (Smith, supra, 82 Cal.App.3d at p. 915), 'there is no requirement that the People consent to a guilty plea' (People v. Vessell (1995) 36 Cal.App.4th 285, 296). In that circumstance, the court may indicate 'what sentence [it] will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea' (Smith, at pp. 915-916.)" (People v. Turner (2004) 34 Cal.4th 406, 418-419; see People v. Feyrer (2010) 48 Cal.4th 426, 434, fn. 6.)

Case law has identified differences between indicated sentences and plea bargains. Most important, of course, an indicated sentence does not result from bargaining by the court. (Cf. Allan, supra, 49 Cal.App.4th 1507, 1516 ["No 'bargaining' is involved because no charges are reduced."]; Felmann, supra, 59 Cal.App.3d 270, 276; Ramos, supra, 235 Cal.App.3d 1261, 1271.)*fn15 As the prosecutor's consent is not required for a defendant to plead guilty to all charges, a court may offer and impose an indicated sentence over the prosecutor's objection. (Cf. Ramos, supra, 235 Cal.App.3d at p. 1271; see Felmann, supra, 59 Cal.App.3d 270, 276-277.)

Case law has also identified some similarities between a plea bargain and an indicated sentence. Like a plea bargain, an indicated sentence is not a binding promise or guarantee by the trial court. "An indicated sentence is just that: an indication." (People v. Delgado (1993) 16 Cal.App.4th 551, 555 (Delgado).) "The sentencing court may withdraw from the 'indicated sentence' if the factual predicate thereof is disproved." (Ramos, supra, 235 Cal.App.3d at p. 1271; see People v. Woosley (2010) 184 Cal.App.4th 1136, 1146 (Woosley).) The court's indication does not foreclose the prosecutor from presenting all available evidence and argument at sentencing, the same as after trial, in an attempt to demonstrate that imposing the indicated sentence would be an abuse of the court's sentencing discretion. (Felmann, supra, 59 Cal.App.3d 270, 276; Ramos, supra, 235 Cal.App.3d at p. 1271.)

Also like a plea bargain, the defendant may be allowed the option of withdrawing his or her plea if the trial court does not impose the indicated sentence. (Felmann, supra, 59 Cal.App.3d 270, 276 ["the facts which are the assumed basis of sentence may be expressed in the form of the basis of a conditional plea reserving the defendant's right to withdraw the plea and go to trial in the event the court determines that the facts recited are not confirmed in a fashion which enables it to sentence the defendant in accord with the condition]; see Smith, supra, 82 Cal.App.3d 909, 915-916.) Indeed, the appellate remedy when an appellate court finds illegal plea bargaining by the trial court is to allow the defendant's plea to be withdrawn. (Labora, supra, 190 Cal.App.4th 907, 916; cf. People v. Lopez (1993) 21 Cal.App.4th 225, 231 [indicated sentence involved unauthorized striking of sentence].) That is the remedy requested by the People in this case.

In summary, the form of an indicated sentence as proposed by Felmann and echoed in later decisions is that a judge should say to a criminal defendant directly or through counsel, in essence, "If you are convicted of all charges by trial or plea and if the facts at sentencing are not materially different than they now appear, then I am likely to impose" a specified sentence. "If I do not impose that sentence, then you may have the options of accepting a greater sentence or withdrawing your plea." An indicated sentence should be a reliable prediction, not a guarantee, of what sentence the trial judge is likely to impose if the facts do not change significantly between the time of the indication and sentencing.*fn16

4. The Majority's Concept of an Indicated Sentence

In this section I point out where I disagree with the majority's departure from precedent. The majority generally criticizes most of the precedent discussed above for failing "to devise a clear and coherent test for determining whether a trial court's actions amounted to an improper judicial plea bargain or were instead a permissible indicated sentence." (Maj. opn. ante, at p. 8.) I do not share this view. I have quoted above what I consider to be clear enough descriptions of an indicated sentence, particularly in Smith, supra, 82 Cal.App.3d 909*fn17 as quoted in People v. Turner, supra, 34 Cal.4th 406, 418-419. Until now, appellate courts have expressed no difficulty in distinguishing an indicated sentence from an illegal judicial plea bargain on an adequate record.

I acknowledge that the line between indicated sentences and plea bargains may not be bright and may allow diverse interpretations. In trying to sketch that line, Felmann, supra, 59 Cal.App.3d 270 stated: "A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.[*fn18 ] Leniency in return for a plea of guilty or no contest must be negotiated by the defendant with the prosecutor. If then a bargain is struck, the court has the power to approve or disapprove it.

"But a court may indicate to a defendant what its sentence will be on a given set of facts without interference from the prosecutor except for the prosecutor's inherent right to challenge the factual predicate and to argue that the court's intended sentence is wrong. If the prosecutor's argument does not persuade and if the facts as developed are as assumed for the purpose of indicating the sentence, that sentence may then be imposed. If not, then defendant has the option of going to trial or accepting harsher treatment on a guilty or nolo contendere plea. . . . [T]he facts which are the assumed basis of sentence may be expressed in the form of the basis of a conditional plea reserving the defendant's right to withdraw the plea and go to trial in the event the court determines that the facts recited are not confirmed in a fashion which enables it to sentence the defendant in accord with the condition." (Felmann, supra, 59 Cal.App.3d at p. 276.)

Felmann thus seems to contemplate that a true indicated sentence does not include any inducement to a criminal defendant to plead to the sheet apart from the indicated sentence. As an example of a prohibited inducement, Felmann cited an offer of more lenient treatment if the defendant waives trial.*fn19 In Vergara, supra, 230 Cal.App.3d 1564, the Second District (Div. 2) upheld indicated sentences to four defendants, noting that "the trial court is allowed to give advance indication of a sentence based upon a set of facts." (Id. at p. 1568, citing that court's earlier opinion in Smith, supra, 82 Cal.App.3d 909, 916.)

To solve the problem with precedent that the majority perceives, the majority identifies two principles to distinguish indicated sentences from plea bargains. I understand the first principle to be that a "proper" indicated sentence is one that applies whether the defendant goes to trial or pleads guilty or no contest. (Maj. opn. ante, at p. 11.) Phrased negatively, it is not premised or contingent on a defendant pleading guilty or no contest.

With due respect, there is nothing new or different in this principle. Twenty years ago, Ramos stated: "When giving an 'indicated sentence,' the trial court simply informs a defendant 'what sentence he will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea.' (People v. Superior Court (Smith), supra, 82 Cal.App.3d 909, 915-916; People v. Vergara, supra, 230 Cal.App.3d at pp. 1567-1568.)" (Ramos, supra, 235 Cal.App.3d 1261, 1271.) As the first principle is consistent with established precedent, I agree with it.*fn20

The majority disagrees with Ramos for violating this principle (p. 11), presumably because the appellate court's application of the principle did not coincide with its articulation. In one of two cases under review, the trial "court indicated that, if Ramos were to plead guilty, the court would commit to 'two years in prison.' " (Ramos, supra, 235 Cal.App.3d 1261, 1265.) The appellate court also noted that the trial court "used the words 'promise' and 'commitment.' " (Id. at p. 1266, fn. 2.) Finding this choice of words "not determinative" (ibid.), the appellate court concluded that "[t]he instant 'indicated sentences' fall within the boundaries of the court's inherent sentencing powers." (Id. at p. 1271.)

I see no need to discuss or decide whether Ramos correctly applied the principles that it correctly stated. I find no fault with Ramos's summary of precedent and its statement of the general parameters of an indicated sentence. Ramos provided a thoughtful review of five competing policy considerations for allowing indicated sentences while prohibiting judicial plea bargaining. (Ramos, supra, 235 Cal.App.3d 1261, 1268-1269.) I especially agree with the following point. "[A]t a time when both fiscal and judicial resources are in short supply, needless time-consuming trials are to be discouraged. 'A trial is a search for the truth. [Citations.]' [Citation.] This goal is achieved when a defendant is willing to plead guilty as charged and admit each and every special allegation. Wasteful expenditures of time, money and personnel detract from the cases which truly require trial. 'Indicated sentences' result in sure convictions for the People precluding the possibility of whole or partial acquittals, foreclose or at least substantially curtail appeals and the delays associated therewith, and allow the trial court to impose swift and fair punishment." (Id. at p. 1269.)

The second principle identified by the majority appears to be that a defendant's acceptance of a "proper" indicated sentence must be unconditionally binding on the defendant, though not the court. The majority phrases this differently, stating "an 'offer' by the court that provides the defendant with the option to withdraw the guilty or no contest pleas and any admissions if the court decides to impose a sentence other than the one offered is not a proper indicated sentence." (Maj. opn. ante, at p. 11.) The majority disagrees with the dicta in Felmann stating otherwise.

In contrast to the majority's first principle, I consider this second principle to be a dramatic departure from existing precedent without a good reason to disagree.

It is " 'a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy, known as the doctrine of stare decisis, "is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law." ' " (People v. Garcia (2006) 39 Cal.4th 1070, 1080.) As this court has previously acknowledged, while one appellate district is not bound to follow the decisions of another district, in respect of stare decisis, we ordinarily do so without having a good reason to disagree. (People v. Landry (1989) 212 Cal.App.3d 1428, 1436.)

The majority fails to cite any case authority for this ipse dixit. Even among the cases that have found a purported indicated sentence to be an illegal judicial plea bargain, none cited the defendant's ability to withdraw as a hallmark of a plea bargain.

In Woosley, supra, 184 Cal.App.4th 1136, the court accepted a conditional plea by the defendant by which he would admit all charges (burglary and petty theft while released on bail and another burglary) conditioned on the court imposing a sentence of two years, eight months, and further conditioned on the defendant being allowed to withdraw his admissions if the court did not accept this agreement. (Id. at pp. 1142-1143.) The appellate court concluded that there was an illegal judicial plea bargain in that "[t]he trial court stepped into the role of the prosecutor when it induced defendant to plead guilty in exchange for a commitment to dismiss the on-bail enhancement to reach the agreed-upon sentence." (Id. at pp. 1144-1145.) Woosley did not cite the withdrawal condition as additional support for its conclusion. In part 7A(1), post, I will explain that I disagree with Woosley for other reasons.

In Orin, supra, 13 Cal.3d 937, the trial court itself characterized its action as a plea bargain in which the People did not want to enter and it allowed the defendant to set aside the plea if the trial court did not accept it. (Id. at pp. 940-941.) However, the Supreme Court rejected the trial court's characterization, stating that the case "did not involve a plea bargain." (Id. at p. 943.)*fn21

In Smith, supra, 82 Cal.App.3d 909, the appellate court noted that the defendants in the two cases under review were "assured that if the sentence was not as promised, the plea could be withdrawn." (Id. at p. 915.) As noted above (ante, in fn. 13), the Smith opinion simultaneously characterized the trial court as having "bargained" with the defendants (id. at p. 914) and refused to issue a writ of mandate, stating, "The bargains which were struck are ones which do not require the concurrence of the district attorney." (Id. at p. 915.)

The People cite Labora, supra, 190 Cal.App.4th 907 as apparent support for the proposition that to allow a defendant to withdraw a plea is illegal judicial plea bargaining. In fact, that opinion said no such thing. It found illegal plea bargaining because the trial judge reduced an indicated sentence in response to the defendant's objection. (Id. at p. 916.)

The majority purports to derive this second principle in part from the first principle that "a true indicated sentence may not be premised on the defendant entering guilty or no contest pleas." (Maj. opn. ante, at p. 11.) However, it is one thing to say that an indicated sentence cannot be conditioned on a defendant's change of plea. It is quite another to say that the defendant's acceptance of an indicated sentence by pleading to the sheet must be completely unconditional. The majority acknowledges that a sentence indication is conditioned on the facts remaining the same, leaving the trial court free to rescind the indication upon a material change in facts.

As noted above, among the statutory conditions of a plea bargain are that "(1) [the court's] approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so." (§ 1192.5.) In the context of plea bargaining, the California Supreme Court has recognized "that the requirements of due process attach . . . to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy." (People v. Mancheno (1982) 32 Cal.3d 855, 860.)

While section 1192.5 does not literally apply to an indicated sentence, the majority does not explain why the conditions of an indicated sentence must be more onerous for a criminal defendant than the conditions of a plea bargain. Delgado, supra, 16 Cal.App.4th 551 has indicated that these principles of section 1192.5 do apply to an indicated sentence, and that a defendant's remedy when the trial court refuses to honor its indication is not specific performance of the indication, but "the opportunity to withdraw his plea." (Id. at p. 555.)

I respectfully part company with the majority's announcement of its second principle in part because it contradicts precedent and in part because I foresee negative practical consequences. If a criminal defendant cannot reserve the right to withdraw his or her admissions to all charges if the judge's sentence indication is rescinded, pleading to the sheet in response to an indicated sentence creates a much greater risk that the defendant may receive the maximum possible sentence.*fn22 I foresee that very few defendants will be willing to take this risk, and accordingly the trial courts' sentence indications will lose meaning. The only judicial indication that a defendant could really rely on is that the court will impose a sentence within a range up to the maximum possible. This new restriction on judicial sentence indications will compel defendants either to try their luck at trial or to accept the offers of sometimes zealous prosecutors. If the defendant's guilty plea in response to a judicial sentence indication must be irrevocable, while the defendant's guilty plea in response to a prosecutor's plea bargain is revocable, it is predictable that prosecutors will gain more control over the resolution of criminal cases without trial. The majority identifies no policy reason for this paradigm shift, which reduces the role of the judiciary in the pretrial resolution of cases. As I see it, to so circumscribe the role of the trial judges is to devalue their core competence, experience, and expertise in tailoring sentences to fit the crimes and the criminals.

As I understand it, the majority and I agree that one component of a true indicated sentence is a trial judge's statement to a defendant, in essence, "If you are convicted of all charges by trial or plea and if the facts at sentencing are not materially different than they now appear, then I am likely to impose" a specified sentence. I believe that the majority and I agree that the indication is conditioned on the facts remaining the same at sentencing and is not binding on the trial court if the facts at sentencing are materially different. The majority and I also agree that a trial judge crosses the line into unauthorized judicial bargaining by making a different statement such as "if and only if you admit all charges and waive trial, then I will promise or guarantee" a specified sentence, regardless of what facts may be shown at sentencing. I believe that my legal disagreement with the majority is limited to whether the trial court's sentence indication can include a condition allowing the defendant alternatively to accept a sentence greater than the indication or to withdraw the defendant's admissions if the court declines to impose the indicated sentence.

5. The Trial Judge Has Been Unfairly Portrayed.

The majority faults the trial court for violating both of its principles. My disagreement with the majority is as much about what the facts in this case are as about what the law should be.

Piecing together what actually occurred in this case requires some interpolation from the record. The judge's actual mention of a sentence apparently occurred during an unrecorded conference in the chambers of Santa Clara County Superior Court's Early Resolution Calendar (ERC) court on August 18, 2010. The proposed resolution was put on the record at a change of plea hearing the next day, along with the prosecutor's objections "to the Court offer in this case." The court made a few remarks on the record on August 19, 2010 at the change of plea hearing in response to the prosecutor's objections. At sentencing on November 16, 2010, the prosecutor renewed his objections to the court's plea bargaining as well as arguing that the indicated sentence of five years was unwarranted in light of new information. At that hearing, the judge's somewhat discursive response to both parts of the prosecution's motion covers seven pages of the reporter's transcript. The majority has quoted parts of these hearings, as will I. At those subsequent hearings, the trial judge, the prosecutor, defense counsel, and even the probation officer offered a variety of characterizations of what the trial judge said to defendant through defense counsel, but no one purported to quote exactly the words used by the trial judge.

I agree with the majority that the record establishes that, as part of the unrecorded sentence indication, there was at least an implicit understanding, if not an expressly stated condition, that defendant would be allowed to withdraw his pleas if the court elected not to impose the indicated sentence and the defendant was unwilling to accept a greater sentence.*fn23 For the reasons stated above (in pts. 3 and 4), I do not agree with the majority that this condition establishes that the court engaged in illegal plea bargaining.

I also disagree with the following italicized factual findings by the majority. "The trial court made an offer to defendant . . . that, if defendant admitted all of the charges and allegations, the trial court would grant his motion to strike a strike and would impose a five-year state prison term or allow defendant to withdraw his pleas and admissions." (Maj. opn. ante, at p. 1.) "Here, the trial court agreed to impose a five-year prison sentence and strike the strike in exchange for defendant's pleas and admissions." (Maj. opn. ante, at p. 12.) The trial court made "a commitment that defendant could withdraw his pleas and admissions if the court did not follow through on its offer." (Maj. opn. ante, at p. 12.) "[T]he court guaranteed defendant that he would either receive the offered five-year term or be returned to his original position." (Maj. opn. ante, at p. 12.)

The majority has selected wording such as "commitment" and "guarantee" to connote a binding promise by the trial judge. While the trial judge went on for pages describing the practices of the ERC court at the sentencing hearing, I do not find these particular words used by the judge or any party to the unrecorded conference.*fn24 Instead the judge called his statements both "indicated sentences" and "offers." "Offer" was the most common characterization.

At the change of plea hearing, the trial court asked defense counsel to recite his understanding of the disposition of defendant's case. A deputy public defender stated, "he will be pleading as charged, and in each matter will be admitting a serious strike prior allegation. It's anticipated at the time of sentencing the Court will grant an oral Romero motion, thereafter sentence Mr. Clanc[e]y to five years in state prison." This anticipation was qualified by the implicit understanding just discussed that the court could change its mind in view of significant new facts.

In objecting to the court's actions as illegal plea bargaining, the prosecutor repeatedly characterized them as a "promise."*fn25 Unlike the particular circumstances in Labora,, supra, 190 Cal.App.4th 907, 911-912, I do not regard the court's response to the prosecutor's assertions as any kind of adoptive admission that the court made the defendant a binding, irrevocable, or enforceable promise, commitment, or guarantee. The court took pains to describe its general and specific practices in this case, and it did not use any of these terms.*fn26 Ultimately, the court rejected the prosecutor's claim of illegal plea bargaining. After first acknowledging at sentencing that, if its actions "were viewed in a vacuum, I think you would be correct in your assessment that the court engaged in plea bargaining," after explaining the background of its operating procedures and understandings with the District Attorney's office, the court concluded, "it isn't as though the court is engaging in plea bargaining."*fn27

Finally, I disagree with the majority's factual inference that "[b]ecause the court's goal was to 'settle cases,' its offer was contingent on defendant's pleading and would not have been valid if he chose to exercise his right to trial." (Maj. opn. ante, at p. 12.) This might be a permissible factual inference from the record if we were reviewing a finding that the trial court had engaged in illegal plea bargaining, but that is not the posture of this appeal.

6. The Standard of Review

These implicit factual findings by the majority raise the question of the applicable standard of review. The majority quotes Labora, supra, 190 Cal.App.4th 907, but Labora does not address how an appellate court should determine the facts when the claim is that a trial court engaged in illegal judicial plea bargaining. (Maj. opn. ante, at p. 8.)

The standard for appellate review of such a claim is not well defined. It has been said that "[w]e review allegations of judicial plea bargaining for abuse of discretion" (Labora, supra, 190 Cal.App.4th 907, 914), but a trial "court has no authority to substitute itself as the representative of the People in the negotiation process." (Orin, supra, 13 Cal.3d 937, 943; my emphasis.) " '[J]udicial plea bargaining in contravention of existing law' " is an act " 'in excess of a trial court's "jurisdiction." ' " (Turner, supra, 34 Cal.4th 406, 418, quoting People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 532, disapproved on another ground by People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3; Labora, supra, 190 Cal.App.4th at p. 914.) Trial courts have no discretion to engage in plea bargaining.

What an appellate court must do when evaluating such a contention is to ascertain whether the trial judge engaged in plea bargaining or entered a plea bargain. Since a negotiated plea agreement is a form of contract, the standard of review for contracts appears applicable. As this court has stated, "[w]here the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed. But if the material facts are certain or undisputed, the existence of a contract is a question for the court to decide." (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208.) Similarly, "[w]here the evidence on the negotiations forming the basis of the alleged oral contract is in conflict, the question is one of fact, and it is for the trial court to determine from the evidence whether a contract is proven." (Townsend v. Flotill Products (1947) 82 Cal.App.2d 863, 866.)

The trial judge, being an alleged party to the bargain, is particularly well situated to determine if he or she engaged in any negotiating or bargaining, particularly if the claim is that the activity occurred off the record. As usual, on appeal we will defer to any express or implicit factual findings to the extent they are supported by substantial evidence (compare Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1055 with In re Honesto (2005) 130 Cal.App.4th 81, 92), but we will independently review the legal significance of those facts. Of course, it will facilitate appellate review if a party or the court puts on the record whatever occurred off the record.

Unlike the majority, I believe that on appeal we must accept the implicit factual findings supporting the trial court's conclusion that it did not engage in plea bargaining, but merely indicated a sentence as authorized by precedent.

7. The Trial Court Did Not Engage in Illegal Plea Bargaining.

As the majority has accepted the People's first argument, it does not reach the People's next two arguments. As I am not persuaded by the first argument, I will review the others in order to determine whether the trial court in this case crossed the line and engaged in illegal plea bargaining.

A. The Conditional Offer to Dismiss the Strike Did Not Create a Plea Bargain.

The People assert that the second hallmark of plea bargaining is that "the trial court's inducement of the defendant's plea in this case hinged on its dismissal of defendant's prior serious felony conviction allegations in order to reach the agreed-upon prison term. That arrangement is materially indistinguishable from a promise to dismiss the enhancements at the time of the plea, and offends the rule set forth in Orin that only the prosecutor, not the court, can engage in charge bargaining."

(1). The Woosley Decision Is Unconvincing.

The People find support in Woosley, supra, 184 Cal.App.4th 1136, discussed above, which I will now examine more closely. In that case, the People asserted that the trial court had made an unlawful judicial plea bargain. The defendant was charged with two burglaries and petty theft, the latter two crimes occurring while he was released on bail. (Id. at p. 1140.) Over the prosecutor's objection, the defendant entered into what he characterized as a " 'conditional plea' 'conditioned upon the defendant receiving 2 years 8 months state prison.' " (Id. at p. 1142.) At sentencing, defense counsel explained that the only way to arrive at this sentence was for the court to dismiss the on-bail enhancement under section 1385. (Id. at p. 1143.) The court imposed a sentence of two years eight months by dismissing the enhancement. (Id. at p. 1144.)

The Third District Court of Appeal agreed with the People that "the trial court engaged in unlawful judicial plea bargaining." (Woosley, supra, 184 Cal.App.4th at p. 1144.) After reviewing the authorities summarized above (id. at pp. 1145-1146), the court reasoned as follows. "Here, the trial court gave what appeared to be an indicated sentence. But that sentence could be imposed only if the trial court dismissed the on-bail enhancement. Therefore, it was more than just an indicated sentence; it included, anticipatorily, the dismissal of the on-bail enhancement.

"Even though section 1385 gives the trial court discretion to dismiss 'an action' in the interests of justice, the anticipatory commitment by the court to exercise that discretion to dismiss the enhancement cannot be used to negate the role of the prosecutor.[Fn. omitted] Such use encroaches on the prosecutor's charging authority and exposes the process to the evils discussed by the California Supreme Court in Orin, supra, 13 Cal.3d at p. 943. It 'would contravene express statutory provisions requiring the prosecutor's consent to the proposed disposition, would detract from the judge's ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge's participation in the matter. [Citation.]' (Ibid., fns. omitted.)

"Defendant asserts, however, that this was nothing more than a plea of guilty to all charges and admission of the enhancement with an indicated sentence. To the contrary, defendant's characterization ignores the reality that the plea did not expose him to punishment for the on-bail enhancement because the trial court had promised to dismiss it. The form of the bargain was to have defendant admit the on-bail enhancement in anticipation of the trial court 'exercising' its discretion to dismiss the enhancement, but the substance of the bargain was no different from the trial court dismissing the on-bail enhancement before taking the plea. Therefore, the bargain could be made only with the prosecutor's consent. [¶] By defendant's reasoning, the trial court could agree to dismiss any or all of charges or enhancements, pursuant to section 1385, in exchange for a defendant's guilty plea on all the charges and enhancements. Such a practice is within neither the spirit nor the letter of state law as summarized in Orin." (Woosley, supra, 184 Cal.App.4th at p. 1147.)

Defendant asserts that Woosley "was wrongly decided." I agree. Woosley seems to regard a trial court's exercise of section 1385 discretion as infringing on the prosecution's charging authority. As I will show, this is the very proposition that was rejected in a different context in Romero, supra, 13 Cal.4th 497.

I have already mentioned (ante, pt. 1) that Romero construed the Three Strikes statutes as allowing trial courts on their own motions to dismiss strikes under section 1385. In reaching this conclusion, the court began its analysis by reviewing "the impact of the separation of powers doctrine." (Romero, supra, 13 Cal.4th at p. 509.) The leading case of People v. Tenorio (1970) 3 Cal.3d 89 had examined a similar statute purporting to bar courts from striking prior convictions in certain drug cases without the prosecutor's consent. Romero summarized the reasoning of Tenorio "in this way: . . . conceding the Legislature's power to bar a court from dismissing certain charges altogether, when the Legislature does permit a charge to be dismissed the ultimate decision whether to dismiss is a judicial, rather than a prosecutorial or executive, function; to require the prosecutor's consent to the disposition of a criminal charge pending before the court unacceptably compromises judicial independence." (Romero, supra, 13 Cal.4th at p. 512.)

Romero stated, "[t]he applicable provision of the Three Strikes law (§ 667(f)(2); § 1170.12, subd. (d)(2)), if construed as the district attorney would have us construe it, would have precisely the same effect: A court that was convinced, in the proper exercise of its discretion, that justice demanded the dismissal of a prior felony conviction allegation pursuant to section 1385, would have no power to dismiss unless the prosecutor consented. So interpreted, the statute would appear to violate the doctrine of separation of powers." (Romero, supra, 13 Cal.4th at p. 513, fn. omitted.)

Romero rejected the contention that the Three Strikes statutes were intended to afford "judicial oversight of the prosecutor's charging discretion." (Romero, supra, at p. 514.) "This view of the statute is impossible to accept. To describe the statute as subjecting the prosecutor's charging discretion to judicial oversight is sophistic. The statute does not purport to require the court to oversee the prosecutor's charging decisions. Nor does the court, in reality, exercise any power over the prosecutor's charging decisions. Any decision to dismiss is necessarily made after the prosecutor has invoked the court's jurisdiction by filing criminal charges. '[O]nce the state is ready to present its case in a judicial setting, "the prosecutorial die has long since been cast." ' [Citations.] . .

"The notion that a statute with the effect described may be construed and justified as dealing with charging discretion, rather than with the court's disposition of pending charges, was expressly and flatly rejected in People v. Tenorio, supra, 3 Cal.3d at page 94 [citation]: 'When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.' (See also People v. Superior Court (On Tai Ho) [(1974)] 11 Cal.3d [59] at p. 66 ['[W]hen the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility.']; [citation.]" (Romero, supra, at p. 514.) Romero concluded that any "[i]nterference with the traditional prerogatives of the executive cannot justify interference with the independence of the judiciary." (Id. at p. 515.)

It seems to me that Woosley accepted the same argument that Romero previously rejected, namely, that for a court to dismiss an enhancement under section 1385 somehow interferes with the prosecutor's ability to charge the enhancement. I consider Romero to be more persuasive, if not controlling, on this point. In terms of the prosecutor's charging authority, it is exhausted once charges are filed invoking the court's jurisdiction. The court's subsequent dismissal of a strike does not have the effect of wiping out the conviction or the prosecutor's allegation. It is simply a determination that the sentencing consequences of that conviction should not be applied to the defendant in a particular case. (Romero, supra, 13 Cal.4th 497, 508.)

In the earlier decision in Vergara, supra, 230 Cal.App.3d 1564, a decision not discussed in Woosley, the Second District Court of Appeal was not troubled by an indicated sentence that was contingent on dismissing an enhancement. In that case, each of four co-defendants faced eight possession charges, two involving drugs and six involving weapons, and a charge of selling cocaine. Attached to the drug charges was a quantity enhancement that "would have added 15 years to each defendant's sentence under counts 1 and 2, and an additional 3 years as to count 3." (Id. at pp. 1566-1567.) After negotiations between the prosecution and the defendants broke down, the court gave an indicated sentence to each defendant of nine years eight months, after which each defendant pleaded guilty to all charges and enhancements, and the trial court imposed the indicated sentences, which involved staying the enhancements. (Id. at p. 1567.)

The appellate court quickly rejected the claim that the trial court had engaged in illegal plea bargaining. "It is clear that there is no requirement that the People need to consent when a defendant pleads guilty to all charges of the information. . . . Further, the trial court is allowed to give advance indication of a sentence based upon a set of facts. (People v. Superior Court (Smith), supra, at p. 916.) Sentencing is the exclusive province of the judiciary, to be accomplished within the limits set by the Legislature. (Ibid.) Accordingly, the trial court acted within its power in accepting the pleas and imposing the base sentences." (Vergara, supra, 230 Cal.App.4th at pp. 1567-1568.)

As a separate issue, Vergara concluded that the trial court had erred by failing to state reasons for permanently staying or striking the enhancements and it reversed that aspect of the judgment so that the trial court could either state reasons or impose the enhancements. (Id. at p. 1569.) Unlike Vergara, the People here do not assert that the trial court abused its discretion under section 1385.

While the result of Vergara was to uphold an indicated sentence that required dismissal of an enhancement, unlike Woosley, the opinion did not discuss whether the dismissal infringed on the prosecutor's authority. I now turn to this point.

(2) The Indicated Sentence in this Case Did Not Exceed the Trial Judge's Authority.

In part 1, ante, I explained that if defendant had opted for jury trial and he was convicted of all charges, with true findings on the on-bail enhancement and prior strike, the court at sentencing would be required to engage in a complex series of discretionary decisions to arrive at the ultimate sentence. At the sentencing hearing, the prosecution would be free to argue for any term it saw fit up to the maximum of 16 years 8 months. If the court at sentencing determined to impose a term of five years (calculated exactly as the sentence in this case was) after striking the strike and the on-bail enhancement, no persuasive argument could be made that the sentencing after trial somehow negated the prosecutor's role, encroached on the prosecutor's charging authority, or required the prosecutor's consent. Instead, the sentencing court would be recognized to be performing a fundamentally judicial function.

I do not understand Woosley to have suggested that the trial court at sentencing after conviction at trial would have exceeded its authority if it had imposed a same sentence of two years and eight months, even though this sentence involved striking the on-bail enhancement. But Woosley prohibited the trial judge from announcing and later acting on the same preliminary assessment of the defendant's likely sentence if convicted of all charges without conducting a trial. Woosley characterized such an indication as not only an "anticipatory commitment," but as tantamount to "dismissing the on-bail enhancement before taking the plea." (Woosley, supra, 184 Cal.App.4th 1136, 1147.) As I explained above, an indication of a sentence is an indication, an informed prediction of how the judge is likely to view the same facts at sentencing. It is not a binding commitment. It is certainly not a pre-plea imposition of the sentence or a dismissal of an enhancement. It is no less within judicial authority to indicate a sentence before trial than to impose a sentence after trial, even if the indication contemplates dismissal of an enhancement, so long as the indication otherwise conforms to the formula for an indicated sentence.

As noted above, at sentencing after an indicated sentence the prosecution is in the same position as if it had obtained defendant's conviction on all charges after trial. The prosecutor has an opportunity to marshal evidence, including what has been properly excluded from the jury's purview, in an attempt to convince the court of what sentence to impose in its considerable discretion. The prosecutor in this case took advantage of this opportunity, presenting a 12-page motion with several attachments showing defendant's criminal history and the nature of his current crimes. Having exercised their executive function in determining what charges to bring, the People's remaining responsibilities are to prove their charges and to argue for an appropriate sentence. The People are not required to consent to a plea of guilty as charged. After such a plea, when the People have the opportunity to present evidence and argument about the proper sentence, I see no infringement of the prosecutor's constitutional role. Rather, by preventing a trial court from providing a preliminary assessment of a defendant's likely sentence, the result in Woosley amounts to an infringement on the court's authority to exercise judicial sentencing discretion.

There is legitimate concern that a trial judge not figuratively step down from the bench and become entangled in a process of negotiation and partisan give-and-take with the criminal defendant. (Orin, supra, 13 Cal.3d 937, 942-943; People v. Weaver (2004) 118 Cal.App.4th 131, 148-149.) Impartiality and due process must be respected for all parties. However, for a court to simply announce an indicated sentence within the parameters described above, not conditioned on the defendant's change of plea, does not involve the court in negotiating or bargaining. If arriving at that indicated sentence requires the court to select a certain midterm as a principal term, to run several other terms concurrent, to strike a strike, and to strike an enhancement, the court has done nothing outside of performing core judicial functions and has not invaded the province of the executive branch.

In this case, as the critical statements by the judge during an early resolution conference were not recorded or later quoted, conflicting inferences may arise from the existing record of after-the-fact characterizations and paraphrases. It is the appellant's burden to demonstrate judicial error. In their appeal the People have cited no evidence establishing that the trial judge engaged in any bargaining with defendant. They emphasize that the judge repeatedly described the indicated sentence as an "offer." I do not believe that the judge was attempting to use the word as a term of art, but as another way of describing the indicated sentence. Unlike Labora, supra, 190 Cal.App.4th 907, in objecting to the court's action, the prosecutor here made no record that the defense attorney talked the trial judge into changing his indicated sentence or that the judge was otherwise involved in negotiating with defense counsel regarding the sentence. While the prosecutor characterized the court's action as making a promise in exchange for a guilty plea, the trial court implicitly rejected that characterization. For all that appears in the record, both sides presented their positions about an appropriate resolution at this meeting and the judge then indicated a sentence.*fn28

Applying a deferential review to the implied findings of the trial court, all that appears in this record is that the trial judge determined and announced that, based on the facts before him at the time of the early resolution conference, he would sentence defendant to five years in prison if all charges were proved at trial. It is true that this sentence could only be imposed by striking defendant's prior strike, and it was anticipated, not promised, that the court would grant an oral Romero motion at sentencing if no important new facts were presented. For the reasons stated above, I conclude that for the trial court to give this indication before trial did not exceed the court's sentencing authority or infringe on the prosecutor's charging authority. It was a proper indicated sentence.*fn29

B. The Statutory Prohibitions on Plea Bargaining Involving Strikes are Inapplicable.

In view of my conclusion that it is generally acceptable to predicate an indicated sentence on dismissal of an admitted enhancement, contrary to Woosley, the remaining question is whether the Three Strikes statutes affect that conclusion.

The People's final point is that the Three Strikes statutes, sections 667, subdivision (g) and 1170.12, subdivision (e), prohibit plea bargaining, as defined in section 1192.7, subdivision (b), involving prior felony convictions. This statute states: "As used in this section 'plea bargaining' means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant." (§ 1192.7, subd. (b).)

Defendant responds that the plea bargaining restrictions in the Three Strikes statues were aimed only at prosecutors, not judges. The subdivisions expressly require prosecutors to plead and prove "all known prior felony convictions" and prohibit prosecutors from entering "into any agreement to strike or seek the dismissal of any prior felony conviction allegation" except pursuant to section 1385. (§§ 667, subd. (g), 1170.12, subd. (e).)

Since these subdivisions refer to plea bargaining as defined in section 1192.7, subdivision (b), and that subdivision mentions "any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge," I am not persuaded that the plea bargaining prohibition in the Three Strikes statutes was intended to exempt judges. (Cf. Allan, supra, 49 Cal.App.4th 1507, 1516.) This statutory definition was enacted in 1982 as part of Proposition 8. While Proposition 8 seemingly recognized a judicial role in the bargaining process, it did so only in the context of prohibiting plea bargaining by prosecutors and judges in a wide range of felony cases not including the felonies charged in this case.*fn30 It is applicable here only by virtue of defendant having a prior strike that is subject to the Three Strikes statutes.

I recognize that section 1192.7, subdivision (b) is broadly phrased. The majority emphasizes its prohibition of any discussion between a judge and a criminal defendant, asserting that "a 'discussion' between a judge and a criminal defendant that produces the defendant's agreement to plead guilty or no context in exchange for a sentencing commitment by the judge is a judicial plea bargain." (Maj. opn. ante, at p. 3.)

This broad interpretation does not apply to a true indicated sentence. As described above, an indicated sentence is not conditioned on the defendant's change of plea. It is equally applicable whether the defendant is convicted by plea or at trial. An indicated sentence therefore is not offered "in exchange for" a defendant's agreement to plead guilty or no contest. The fact that a sentence indication results in a guilty plea does not establish that it was indicated with the prohibited intent.

Moreover, as stated above, an indication is simply that, an indication. It is not a binding promise, nor is it a commitment, concession, assurance, or consideration. A true sentence indication necessarily involves "discussion," since it must be articulated somehow, but it does not involve "any bargaining" or "negotiation" between a defendant or defense counsel and the judge. (§ 1192.7, subd. (b).) It is a conditional offer by the court leaving nothing for negotiation. To the extent that the broad language of this subdivision suggests a more expansive interpretation that would prohibit a court from indicating a sentence that involves the dismissal of a strike or enhancement pursuant to section 1385, I would conclude that "[s]o interpreted, the statute would appear to violate the doctrine of separation of powers." (Romero, supra, 13 Cal.4th 497, 513.)

I therefore conclude that the Three Strikes statutes, in restricting plea bargaining, do not prohibit the established practice of trial courts indicating sentences. As the prosecutor in this case made no showing that the court's off-the-record sentence indication resulted from judicial bargaining or negotiating and it was nothing more than a conditional offer, it falls outside the prohibitions of the Three Strikes statutes and within judicial sentencing authority.

For the reasons stated above, I would affirm the judgment.

LUCERO, J.*fn31


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