(Super. Ct. No. LF012224A)
The opinion of the court was delivered by: Murray , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Billy Melvin Huber appeals the sentence imposed by the trial court following entry of his pleas of no contest. He claims that because he never admitted the strike allegation utilized by the trial court to enhance his sentence, the sentence on the prior strike must be vacated.
The People contend that defendant's pleas were the product of judicial plea bargaining.
We agree with the People and must therefore conclude the trial court exceeded its jurisdiction. We further conclude that the sentence the court intended to impose was not legally authorized.
Accordingly, we reverse and remand for further proceedings with directions to the trial court to vacate defendant's pleas, vacate the sentence and reinstate all charges and allegations in the information.
FACTUAL AND PROCEDURAL BACKGROUND
The information charged defendant with nine counts related to three separate incidents involving three different victims.
As to Victim 1, defendant was charged with the following offenses, which were alleged to have occurred on September 9, 2010: count 1 -- first degree residential burglary (Pen. Code, §§ 459-461);*fn1 count 2 -- obtaining money by false pretenses, a misdemeanor (§ 532, subd. (a)); and count 3 -- theft from an elder or dependent adult, a misdemeanor (§ 368, subd. (d)).
As to Victim 2, defendant was charged with the following offenses, which were alleged to have occurred on August 24, 2010: count 4 -- petty theft with a prior theft-related conviction (§ 666); count 5 -- inflicting injury on an elder adult (§ 368, subd. (b));*fn2 and count 6 -- obtaining money by false pretenses, a misdemeanor (§ 532, subd. (a)).
As to Victim 3, defendant was charged with the following offenses, which were also alleged to have occurred on August 24, 2010: count 7 -- petty theft with a prior theft-related conviction (§ 666); count 8 - theft from an elder or dependent adult, a misdemeanor (§ 368, subd. (d)); and count 9 -- obtaining money by false pretenses, a misdemeanor (§ 532, subd. (a)).
In connection with the felonies charged in counts 1, 4 and 7, the information also alleged that defendant had three prior serious felony (strike) convictions within the meaning of sections 1170.12, subdivision (b) and 667, subdivision (d). All three were convictions of first degree burglary (§ 459), one occurring on December 3, 1987, and the other two occurring on July 9, 1993.
A full recitation of the facts underlying each of the charges is not necessary. In summary, on three separate occasions defendant "scammed" three elderly women by telling them they had a problem with something underneath their car and then charging them for a fake part to fix the nonexistent problem.
Victim 1 was the victim of the first degree burglary charged in count 1. Defendant followed Victim 1 to her house where he obtained money from her for a fake auto part. Defendant asked her for her name and address to send her a card. Victim 1 went inside her house and defendant followed her inside, where she wrote out the information he had requested. Thereafter, they went back outside to her car. Defendant asked Victim 1 to get inside her car so he could check something underneath. Defendant then went back toward the patio, ostensibly to get a rag. He told Victim 1 to wait in her car, and he was gone for several minutes. Victim 1 could not see where he went from her vantage point. Thereafter, defendant left. At some point after defendant left, Victim 1 noticed that her ATM card had been removed from her wallet, which she had taken out of her purse and set on the dryer in the house. Next to the wallet was a bottle of water Victim 1 had earlier provided defendant. An unauthorized withdrawal was made from Victim 1's account that same day.
Prior to the preliminary hearing, the prosecution offered defendant a plea deal that included a sentence of 14 years in state prison. That offer was not accepted and was thereafter revoked. On January 4, 2011, the day jury selection was scheduled to begin, defendant entered no contest pleas and was sentenced by the trial court to 13 years four months.
Of necessity, we set forth most of the colloquy that occurred on the day before the plea and on the following day when defendant pled and was sentenced.*fn3
The matter was assigned for trial on January 3, 2011. The following occurred:
"THE COURT: [¶] . . . [¶] Mr. Huber, we just had earlier ordered up the jurors to start tomorrow afternoon selecting the jury in your matter here, and I want to tell you something. If the jury convicts you -- and I have no opinion and I wouldn't exert it if I did whether they would or would not -- I haven't heard the facts, but I'm just saying if they convict you, you're looking at 25-to-life. It would be your third strike. [¶] Do you understand that?
"THE DEFENDANT: (Nods in the affirmative)
"THE COURT: [¶] . . . [¶] I've talked to counsel and apparently before the preliminary hearing, there was an offer at one time of 14 years if you want to plead on -- basically taking the six years on the first-degree burglary, doubling it, giving you the double amount of time on a third [sic] strike in there, and you're picking up from the other counts is enough to make it 14 years. [¶] Normally, once you . . . reject it and it goes to preliminary hearing, victims have to testify, all offers are off the board. [¶] . . . [¶] Now, I do not do plea bargaining after the preliminary hearing. I have met with counsel, and based on what they indicated to me, even though you have these burglaries from the past, the same basically . . . MO's . . . -- as to the new one -- that if you wanted to still plead for the 14 years, you pled [sic] to the sheet, and [the prosecutor] is not participating as an offer because she made her offer and the victims understood what she said was an offer, it was only before the preliminary hearing. But . . . I think that my evaluation of the case is that I would give you the 14 years still. But after that jury comes out, I'm not going to tinker with it. It becomes a third strike and it's 25-to-life. [¶] So you have to make a decision. . . ."
After discussion regarding defendant's credit eligibility, the following occurred:
"[THE PROSECUTOR]: And the other thing that I wanted to clarify is we have discussed this in chambers quite a bit and based on the facts that the People have presented to the Court and based on the facts of the prior strikes, which is the 1987 and 1993 facts, that the Court would have a difficult time after trial striking those strikes and making the necessary findings on the record. Therefore, the Court's hands would also be tied pretty much after the jury trial, even if the jury only came back with one felony; is that correct?
"THE COURT: It's pretty much correct. That's why I indicated . . . that once it goes to the jury and they come back with a first-degree burglary, . . . that's where it's going to be the third strike, that's 25-to-life. They make the call. Your strikes are there."
Defense counsel started to mention that the jury might only convict defendant of petty theft with a prior theft-related conviction and not residential burglary. The following then occurred:
"THE COURT: . . . Frankly, if all they came up with a [sic] petty theft with a prior, I probably wouldn't do 25-to-life . . . . But I guarantee you, though, with a [section] 459, burglary, that I wouldn't tinker with that. And I'm not guaranteeing I'm going to tinker with the other either. I would say I would look -- if I'm -- I would evaluate in a way that I think that there's a -- it's more favorable that I could do something with it on petty theft only with a prior, but I wouldn't do anything with it on a [section] 459." (Italics added.)
"[THE PROSECUTOR]: And the Court hasn't heard all of the facts of the case.
"THE COURT: Absolutely not.
"[THE PROSECUTOR]: So you're not really in a situation to determine how severe the [section] 666's are, or either even the [section] 459; correct?
"THE COURT: No. All I'm saying is, from what I know, if a plea was entered . . . on the sheet as such, I would be inclined to follow the 14 years . . . based on what has been presented to me. I have not heard the facts nor has a jury heard the facts. If the jury comes back with [section] 459 first-degree, I would say there would be no -- there would be nothing to talk about. I would impose the 25-to-life for sure. [¶] If the jury came back with - other than [section] 459, I would look at it carefully, and that's all I'm saying. But if they come back with a [section] 459, there's really not much to look at." (Italics added.)
The court suggested that defendant converse with his attorney. Before recessing, the court told defendant, "And one thing I want you to understand . . . . I'm not trying to tell you what you should do. I'm telling you what the options are here, because, remember, we got a jury called if that's what you want, to start at 1:30."
After a recess, defense counsel informed the court that defendant wanted more time to think about the resolution. The matter was adjourned to the following morning.
On January 4, 2011, the trial court commenced the proceedings as follows:
"THE COURT: Now, Mr. Huber [defendant], my understanding is that you have decided that you would take what had been offered at the pre-preliminary hearing of 14 years, which equates out -- we've talked about yesterday -- like 11 years 2 months, and you already have -- I don't know how much credit toward the sentence. But is that correct or incorrect?" (Italics added.)
"THE DEFENDANT: Yeah. Correct.
"THE COURT: Okay. [¶] Now, I want you to understand something here. What we're doing is that we have a jury that's here this afternoon ready, willing to go. So you have the right to the jury. They're called. [¶] Do you understand that?
"THE COURT: Okay. Now, if you resolve it today, I will be having -- I will strike a strike because if you got two strikes already, this would be the third. Okay. But if I strike a strike, then it will be your second one. That's where you get the double that comes up to the 14 years. [¶] Do you understand that?" (Italics added.)
"[THE PROSECUTOR]: Your Honor, I'm sorry. You have to strike two strikes. He has one strike in 1987 and he has two separate strikes in '93, so you would be required to strike two.
"THE COURT: Same result, but I'm going to strike two of your strikes. [¶] Do you understand that?" (Italics added.)
"THE COURT: For purposes of sentencing -- now this is something you have got to realize, too, because sometimes you may misinterpret -- I'm not striking those prior two strikes, two of them, off the board. They're there if you come back on a new offense sometime. All I'm doing is striking them for purpose [sic] of sentencing on the plea. [¶] Do you understand the difference?
The court then explained to defendant his constitutional rights, the potential penalties, and the consequences of waiving his rights and entering a plea. Having obtained affirmative ...