California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Diego County No. SCN274849, Daniel B. Goldstein, Judge.
[Copyrighted Material Omitted]
Law Office of Michael Perry Goldstein and Michael Perry Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew Scott Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
California law provides that after a defendant has entered a plea to an information, the People must "obtain court approval" prior to filing an amended information alleging previously uncharged prior felony convictions. (People v. Valladoli (1996) 13 Cal.4th 590, 606, fn. 3 [54 Cal.Rptr.2d 695, 918 P.2d 999] (Valladoli); see Pen. Code, § 969a ["if such amendment is made it shall be made upon order of the court" (italics added)].) "[A] court, in its discretion, may choose to deny permission to amend." (Valladoli, supra, at p. 606, fn. 3, italics added).) Further, in order to ensure that "the due process rights of criminal defendants are adequately protected" (id. at p. 607), a trial court that is considering whether to permit a post-plea amendment should consider several factors, including: the reason for the late amendment, whether the defendant is surprised by the attempted amendment, and whether the prosecution's initial failure to allege the prior convictions affected the defendant's decisions with respect to plea bargaining. (Id. at p. 608.)
In the original information that was filed in this case, the People charged Glen Theodore Lettice with three violations of the Vehicle Code. The
information also contained several enhancement and prior felony conviction allegations. Lettice pled guilty to one count of driving with a blood alcohol level of 0.08 percent causing bodily injury (Veh. Code, § 23153, subd. (b)), admitted certain enhancement allegations, and also admitted having suffered a prison prior and a single prior strike conviction. Lettice entered his guilty plea pursuant to a written plea agreement that provided that the maximum punishment that he could receive as a result of his plea was 14 years, but that the trial court had indicated that it would impose a sentence of eight years in prison. As part of the plea agreement, the People agreed to dismiss the balance of the charges and enhancement allegations in the information.
On the day set for sentencing, the trial court began the hearing by announcing, "There is an amended information." The court explained, "[T]he People believe that the defendant has a strike prior from New Jersey in 1976." The amended information added a fourth count charging an additional Vehicle Code violation, and alleged that Lettice had suffered two prior strike convictions. Later during the hearing, the People made an oral motion to withdraw from the plea agreement. The trial court stated that it would defer ruling on the motion because it wanted to "hear from both sides, " since, according to the court, "there may be an issue of notice." The court also stated that it wanted to "make sure there's no estoppel here and there's no jeopardy." The trial court added that if the People were going to seek to withdraw their assent to the plea agreement, they would be required to "file papers, " and expressed its view that defense counsel had "a decent argument... about notice... that really needs to be considered." The court ended the hearing by stating, "[T]here's a difference between withdrawing the plea or demanding to withdraw the plea and a statutory right to add the strike after the plea." At a subsequent hearing, Lettice pled guilty to the amended information and the trial court sentenced him to a stipulated sentence of 14 years in prison.
On appeal, Lettice claims that the People failed to obtain court approval prior to filing the amended information. In support of this claim, Lettice argues that the record demonstrates that the trial court was unaware that it was within the court's discretion whether to permit the filing of the amended information. We conclude that the record indicates that the trial court was not aware that it was within the court's discretion whether to permit the filing of the amended information, and that the court did not exercise its discretion
with respect to the matter. We further conclude that reversal is required because there is a reasonable probability that the court would have exercised its discretion to deny leave to amend. We reverse and remand to permit the trial court to exercise its discretion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The original complaint, the amended complaint, and the original information
In April 2010, the People filed a four-count complaint charging Lettice with driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)) (count 1), driving with a blood alcohol level of 0.08 percent causing bodily injury (Veh. Code, § 23153, subd. (b)) (count 2), leaving the scene of an accident involving an injury (Veh. Code, § 20001, subd. (a)) (count 3), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)) (count 4). As to counts 1 and 2, the People alleged that Lettice had caused bodily injury to more than one victim (Veh. Code, § 23558) and that he had suffered a conviction for driving under the influence within the previous 10 years (Veh. Code, §§ 23626, 23540.) The People also alleged that Lettice had suffered a prison prior (§ 667.5, subd. (b)) stemming from a 2008 conviction, and a strike prior (§§ 667, subds. (b)-(i), 1170.12) based on a 1986 conviction.
In June 2010, the People amended the complaint to add great bodily injury enhancement allegations (§ 12022.7, subd. (a)) with respect to counts 1 and 2. The People also deleted count 3, which had charged Lettice with leaving the scene of an accident involving an injury. In August 2010, the trial court conducted a preliminary hearing and held Lettice to answer on all remaining counts and allegations. The following month, the trial court arraigned Lettice on an information that contained the same counts and allegations as the July 2010 amended complaint. Lettice pled not guilty to all counts and denied all allegations.
B. The first plea agreement and Lettice's first guilty plea
On February 17, 2011, Lettice entered into a plea agreement pursuant to which he agreed to plead guilty to one count of driving with a blood alcohol level of 0.08 percent causing bodily injury (Veh. Code, § 23153, subd. (b))
(count 2). Lettice also agreed to admit to a multiple victim enhancement allegation (Veh. Code, § 23558) and two great bodily injury enhancement allegations (§ 12022.7, subd. (a)). In addition, Lettice agreed to admit that he had suffered a prison prior (§ 667.5, subd. (b)) and a strike prior (§§ 667, subds. (b)-(i), 1170.12). The plea agreement further provided that the trial court had indicated that it would impose a sentence of eight years in prison. Although the change of plea form states, "No [d]eals [with the] People, " the agreement also states "dismiss balance" and is signed by the prosecutor. The change of plea form states that Lettice was aware that he could receive a maximum sentence of 14 years in prison as a ...