Ct.App. 6 H036501 Santa Clara County Super. Ct. Nos. C1072166 & C1073855
The opinion of the court was delivered by: Baxter, J.
Over the prosecution's objection, defendant Wesley Cian Clancey pleaded no contest to all charges (an assortment of felony and misdemeanor charges, mostly theft related) and was sentenced to five years in prison. To arrive at the five-year sentence, the trial court exercised its discretion under Penal Code section 1385*fn1 to dismiss both the on-bail enhancement (§ 12022.1) and the allegation that defendant had suffered a prior strike conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
A divided panel of the Court of Appeal held that the five-year sentence was the product of an unlawful judicial plea bargain and vacated defendant's pleas and admissions. Defendant petitioned for review, contending that he entered his plea after the trial court lawfully indicated its sentence and not as part of an unlawful judicial plea bargain. We conclude that the record is ambiguous as to whether the sentence proposed by the trial court reflected what it believed was the appropriate punishment for this defendant and these offenses, regardless of whether defendant was convicted by plea or following trial, or instead reflected what it believed was necessary to induce defendant to enter a plea. We therefore affirm in part the judgment of the Court of Appeal and remand the matter to the trial court to clarify the ambiguity (see People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 277-278) and, if it reinstates the judgment, to recalculate defendant's presentence conduct credits.
On August 19, 2010, defendant pleaded no contest to all the charges in the first amended complaint in case No. C1072166 (two counts of forgery (§ 470, subd. (d)); two counts of grand theft (§§ 484/487, subd. (a)); one count of false personation (§ 529); and an allegation that he had suffered a prior strike conviction), as well as all the charges in the first amended complaint in case No. C1073855 (three counts of attempted grand theft (§§ 664/487); a felony and a misdemeanor count of using a stolen access card (§§ 484g/487, 484g/488); one count each of second degree burglary (§§ 459/460, subd. (b)), concealing stolen property (§ 496), resisting an officer (§ 148, subd. (a)(1)), and falsely identifying himself to an officer (§ 148.9); and allegations that these crimes were committed while on bail and that he had suffered a prior strike conviction). In accordance with the sentence indicated at the time defendant entered his plea, the superior court sentenced defendant to five years in prison, calculated as follows: the midterm of two years for forgery; consecutive eight-month terms for the remaining forgery conviction as well as the convictions for second degree burglary and using a stolen access card; and consecutive four-month terms for each of the three convictions of attempted grand theft. The court exercised its authority under section 1385 to dismiss the on-bail enhancement and the strike allegations.
A divided panel of the Court of Appeal reversed the judgment and vacated defendant's pleas and admissions. The majority's decision rested on two legal principles: (1) that "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," and (2) that "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." The trial court violated the first principle, according to the majority, because "[t]he 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"; hence, "[t]his was an improper inducement for defendant to enter pleas and admissions." The trial court "confirmed the existence of a bargain" (and thereby violated the second principle) by "making a commitment that defendant could withdraw his pleas and admissions if the court did not follow through on its offer."
In dissent, Santa Clara Superior Court Judge Katherine Lucero, sitting by assignment, acknowledged that an indicated sentence bore "some similarities" to a plea bargain, but emphasized that "a true indicated sentence does not include any inducement to a criminal defendant to plead to the sheet apart from the indicated sentence." The dissenting opinion also cautioned that the majority's proposal to make the plea "unconditionally binding on the defendant, though not the court," would undermine the indicated-sentence procedure and leave "very few defendants . . . willing to take this risk": "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."
We granted review to clarify certain aspects of the indicated-sentence procedure.
This case asks us to map the line between the power of the executive and the judiciary in the context of plea bargaining and sentencing.
"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. [Citations.] 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. . . . Judicial approval is an essential condition precedent to the effectiveness of the 'bargain' worked out by the defense and the prosecution." (People v. Orin (1975) 13 Cal.3d 937, 942-943 (Orin).) Because the charging function is entrusted to the executive, "the 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." (Orin, supra, 13 Cal.3d at p. 943.)
On the other hand, "[w]here the defendant pleads 'guilty to all charges . . . so all that remains is the pronouncement of judgment and sentencing' ([People v.] Smith [(1978)] 82 Cal.App.3d [909,] 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.)
In this case, defendant contends that the five-year sentence proffered by the trial court was an exercise of the court's lawful sentencing discretion and that he entered a plea in response to the indicated five-year sentence. The People, like the Court of Appeal below, argue that the trial court offered to dismiss the strike as an inducement to an unlawful judicial plea bargain. Our resolution of this dispute must begin with a review of the proceedings in the trial court.
A. Defendant's Change of Plea and Sentencing
Following off-the-record discussions among the parties, defense counsel, at the request of the trial court, placed on the record the details of defendant's plea: "Mr. Clanc[e]y, on two separate dockets, in each case, 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[*fn2 ] motion, thereafter sentence Mr. Clanc[e]y to five years in state prison."
The People objected to the proposed disposition. The People's objection was based on their view that "a reasonable resolution would be eight or nine years in state prison" if defendant were to plead prior to the preliminary hearing, that the court's proposed disposition required dismissal of the prior strike allegation (which was "contrary to" the Three Strikes law), and that there "would be a substantial difference between the Court's offer and the People's position" because of the more lenient award of post-sentence credits under the court's proposal.
Despite the objection, the trial court and the prosecutor proceeded to obtain the appropriate waivers from defendant. The prosecutor additionally elicited defendant's understanding that the maximum term for the charged crimes was 16 years and eight months; that the minimum term was 11 years and four months; and that he was not eligible for probation. After stipulating to a factual basis for the plea, defendant pleaded no contest to all charges and admitted the prior strike allegation and the on-bail enhancement.
At the hearing on defendant's Romero motion, the People renewed their objection to the "plea bargain" and urged that defendant's prior strike not be dismissed. The prosecutor's "main" objection was "that a plea bargain was made in this case in that the defendant agreed to plead guilty to the current charges in exchange for an assurance or commitment or promise by the court to strike the strike and sentence him to five years in state prison, and that that agreement was contrary to Penal Code section 667(g) and Penal Code section 1170.12(e) . . . . [¶] So what's happening today with the oral Romero and the recommended sentence by the probation department, if the court goes forward with this, is a foregone conclusion, because it's something that was promised to the defendant prior to him [sic] changing his plea." The prosecutor also referred the court to the additional information he had submitted in opposition to the Romero motion and asserted, "I do not believe the court, at the time of our discussions, prior to the change of plea, had all this information."
Before pronouncing sentence, the trial court stated that the People's comments and objections "if they were viewed in a vacuum" could make it appear "that the court engaged in plea bargaining and abused its discretion; but having said 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 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 court explained that the "assignment" and "function" of the Early Resolution Calendar in general is "to settle cases, as many as it can, by way of settlement discussions with all parties." As an illustration of the basis for its exercise of discretion in this case, the trial court recited that the parties here "had discussions about the case, perhaps not as in detail as outlined by [the People's] points and authorities," but the court had reviewed "all of that and all of the exhibits that were attached thereto" as well as "the nature of the case and the facts." In addition, "all players that were there at the conference . . . had access to the criminal history of the defendant." As a result, the court "had all this at the time that we had the discussions. 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." "I don't think this is a case where the court didn't take into consideration the defendant's history, the nature of the case, the age of the prior, in making a determination as to whether or not an offer should be made in this case and on that basis the court did make that offer of five years." Rather, "having read the probation report, having read and considered the points and authorities that have been submitted by [the People], the oral arguments of both parties, the information that the court had at the time it made its offer, there is nothing new that the court did not know back . . . when I made the offer, that would require this court to set aside the plea because of new information that I didn't know at the time."
In response to the prosecutor's contention that the sentence was a foregone conclusion, the court explained that even though the court "was suggesting an offer of--with respect to an oral Romero and indicated sentence, it was understood . . . 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 position and not to make it a condition of the plea." "And, just for the record, the court has set aside pleas where I had indicated a sentence and based on the probation report, a factor came into consideration that I was not aware of and the court felt that that additional factor was weighty enough and that it allowed the court to set aside the plea."
Prior to imposing sentence, the court granted the Romero motion, and offered these reasons: the prior strike was approximately 10 years old, the current offenses were neither serious nor violent, no weapons were involved and no one was injured, the loss in this matter was not egregiously excessive, and several of the current offenses were "attempts." The court then struck the punishment for the on-bail enhancement and imposed the "agreed upon disposition" of five years.
B. The Distinction Between an Unlawful Plea Bargain and a Lawful Indicated Sentence
The People argue that the trial court "substituted itself for the prosecutor" and crafted "an unlawful judicial plea bargain" that was "functionally identical" to the judicial negotiations we condemned in Orin, supra, 13 Cal.3d 937. In that case, the defendant, Orin, was charged by information with attempted robbery, burglary, and assault with a deadly weapon, along with a number of enhancements. (Orin, supra, 13 Cal.3d at p. 940.) Over the People's objection, the trial court proposed and entered a disposition " 'in the nature of a plea bargain' " under which Orin would plead guilty to the charge of felony assault and be sentenced to the unenhanced term for that offense. (Ibid.) In exchange, the trial court would dismiss the remaining charges. (Id. at pp. 940-941.) "[T]he net effect of the dismissal was to preclude the prosecution and possible conviction of defendant for two offenses simply because he was willing to plead guilty to a third, all three offenses having been properly charged." (Id. at p. 948.) We reversed the judgment on the ground the trial court had failed to set forth reasons for the dismissal of those charges as required by section 1385--and, on that particular record, the apparent justification for the dismissal "was not in furtherance of justice and constituted an abuse of discretion." (Orin, supra, 13 Cal.3d at p. 951.)
Before addressing the validity of the trial court's exercise of its power under section 1385, though, our unanimous opinion declared that "notwithstanding the court's characterization of the disposition of the cause below 'as being in the nature of a plea bargain,' there was in fact no plea bargain." (Orin, supra, 13 Cal.3d at p. 942.) Because a "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" (id. at p. 943), the trial court lacked the authority to dismiss, over the People's objection, charges for which probable cause existed to believe the defendant was guilty (id. at p. 947). Such a bargain, we explained, "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." (Id. at p. 943, fn. omitted.)
Orin relied on a "substantially similar" case from the Court of Appeal, in which the trial court and the defendants, over the People's objection, agreed to an arrangement in which the defendants would plead guilty to charges of robbery and rape in exchange for a grant of probation and dismissal of three other felony charges. (Orin, supra, 13 Cal.3d at p. 947, citing People v. Beasley (1970) 5 Cal.App.3d 617.) "Holding said disposition to be improper, the Court of Appeal reasoned that the trial court's action evidenced a disregard of the adversary nature of criminal proceedings and of the state's interest, ' " 'as a litigant . . . in seeing that cases in which it believes a conviction is warranted are tried . . . .' " ' (People v. Beasley, supra, 5 Cal.App.3d at p. 636, italics omitted, quoting Singer v. United States (1965) 380 U.S. 24, 36.)" (Orin, supra, 13 Cal.3d at pp. 947-948; see ...