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The People v. Wesley Cian Clancey

January 10, 2012


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.


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.


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 ...

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