Opinion
E046013
1-29-2009
THE PEOPLE, Plaintiff and Appellant, v. ANDRES ZARAGOZA VILLELA et al., Defendants and Respondents.
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant. William D. Farber, under appointment by the Court of Appeal, for Defendant and Respondent Andres Zaragoza Villela. Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Respondent Hector Alfonso Chavez.
Not to be Published in Official Reports
In an open plea to the court, defendants Andres Zaragoza Villela and Hector Alfonso Chavez pled guilty to robbery (Pen. Code, § 211) (count 1) as a felony and to actively participating in a criminal street gang while promoting, furthering, or assisting in a felony offense (§ 186.22, subd. (a)) (count 2) as a misdemeanor. Chavez also pled guilty to being an accessory (§ 32) (count 3) as a felony. In return, Chavez was promised a three-year state prison sentence and the reduction of count 2 to a misdemeanor. Villela was promised an aggravated term of five years in state prison as well as the reduction of count 2 to a misdemeanor. Plaintiff, the People of the State of California, objected to the reduction of count 2 to a misdemeanor. Following the taking of their pleas, defendants were immediately sentenced in accordance with the courts promises.
All future statutory references are to the Penal Code unless otherwise stated.
In addition, neither plea form was signed by the prosecutor, and both forms indicated that the dispositions were "plea[s] to [the] court."
The People now appeal, contending that (1) the trial court engaged in illegal plea bargaining when it agreed to reduce count 2 to a misdemeanor in exchange for guilty pleas; and (2) the trial court was without authority to reduce count 2 to a misdemeanor prior to accepting defendants guilty pleas. As explained below, we agree and reverse the judgment.
Because we reverse the trial courts finding based on the fact that it engaged in illegal plea bargaining, we need not address the Peoples remaining contention.
I
DISCUSSION
The details of defendants criminal conduct are not relevant to the limited issues the People raise in this appeal, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.
At a hearing on April 15, 2008, the trial court stated, "The whole thing comes down to whether Count 2 should be 17(b)." Villelas attorney then asked the court to read the preliminary hearing transcript. After reading the transcript, the court was informed about each of the defendants criminal records. The prosecutor objected to the section 17, subdivision (b) motion, arguing that the facts of the case did not warrant a reduction of count 2 to a misdemeanor. The court responded, "Whats relevant here is whats appropriate, based on the circumstances of this case, and whats on their record and the other surrounding crime. Ive got the picture pretty well. Its a 211 with a pellet gun, took some guys wallet and he followed them, and the police officer showed up, and they got arrested. And — per the transcript — at the booking desk, they admitted that they belonged to a gang. So I got the picture."
After hearing additional argument, the court stated, "So what Im thinking, as indicated, that the guy with the state prison prior [Villela] gets the upper term of five years, and the other guy [Chavez] gets three years and that 186.22(a) [as to both defendants], as indicated, is 17(b)."
Prior to taking the plea, the court showed the defendants the plea forms they had reviewed with their respective counsels. The forms noted that count 2, a charge of violating section 186.22, subdivision (a), would be reduced to a misdemeanor. The court then went on to accept guilty pleas from the defendants.
As to count 2, the court asked both defendants, as to "the charge in Count 2, a violation of 186.22 sub (a), a misdemeanor, how do you plead?" Both defendants replied, "Guilty."
Initially, we reject defendants claims that the Peoples notice of appeal is defective. (See People v. Trausch (1995) 36 Cal.App.4th 1239, 1243, fn. 5; see also People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354; People v. Orin (1975) 13 Cal.3d 937, 942-943; People v. Vergara (1991) 230 Cal.App.3d 1564, 1567-1569.)
The People contend that the trial court engaged in unlawful plea bargaining when it agreed to reduce defendants criminal street gang crimes from felonies to misdemeanors in exchange for their guilty pleas and prior to accepting their guilty pleas. The People rely on People v. Orin, supra, 13 Cal.3d 937, in which our Supreme Court held that "the [trial] 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.)
Defendants respond that there was no improper plea bargain because the court merely gave an indicated sentence; they pled guilty to all of the charges, and nothing was stricken or dismissed.
The argument raises the distinction between improper plea bargaining by the court and the giving of an indicated sentence. Plea bargaining generally refers to an agreement between the prosecution and defense that is approved by the court. "The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called `plea bargaining, is an essential component of the administration of justice. Properly administered, it is to be encouraged. . . . [¶] Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. . . . [¶] However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. . . . [¶] This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances." (Santobello v. New York (1971) 404 U.S. 257, 260-262 [92 S.Ct. 495, 30 L.Ed.2d 427].)
"Plea bargaining has become an accepted practice in American criminal procedure, `an integral part of the administration of justice in the United States [citation], `essential to the expeditious and fair administration of justice. [Citation.] . . . [¶] Both the state and the defendant may profit from a plea bargain. The benefit to the defendant from a lessened punishment does not need elaboration; the benefit to the state lies in the savings in costs of trial, the increased efficiency of the procedure, and the further flexibility of the criminal process." (People v. West (1970) 3 Cal.3d 595, 604.)
Thus, "plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." (In re Alvernaz (1992) 2 Cal.4th 924, 933.) "When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon. [¶] `"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." [Citation.] [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also 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. [Citations.]" (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Section 1192.5 is the general plea bargaining statute. It provides that, upon a plea of guilty, the plea may specify the punishment. The defendant must be sentenced to the specified punishment if the plea is accepted by the prosecutor in open court and approved by the trial court. However, the statute also provides: "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. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea." (Ibid.) The section further provides: "If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available." (Ibid.)
In People v. West, supra, 3 Cal.3d 595, our Supreme Court suggested four ways to document plea bargains as part of the record, including the preparation and use of forms for the recordation of plea bargains. (Id. at p. 610.) The plea forms signed by defendants here were not signed by the prosecutor, and the forms note that the dispositions were pleas to the court.
The People thus argue that, since they did not agree to the proposed disposition, the trial court improperly negotiated an agreement with the defendants. We agree. It appears that the trial court did not give merely an indicated sentence, and defendants did not plead guilty to all of the charges as alleged by the People; rather, the court stated to the defendants that if they pled guilty, it would reduce count 2 to a misdemeanor. (Cf. People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1269.) The court essentially made a promise in exchange for a guilty plea. The court informed defendants before taking their pleas that it would reduce count 2 to a misdemeanor, essentially because the court did not believe that count warranted a felony charge since it was merely a "status crime . . . ."
The difference between a plea bargain and an indicated sentence is that "[p]lea bargaining . . . may be related to an `indicated sentence but is a distinct way of compromising a case short of trial. 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. [Citations.] An accused retains the right to reject the proposed sentence and go to trial. The sentencing court may withdraw from the `indicated sentence if the factual predicate thereof is disproved. [Citation.]" (People v. Superior Court (Ramos), supra, 235 Cal.App.3d at p. 1271.)
Thus, a guilty plea to all charges with an indicated sentence is proper: "[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 prosecutors inherent right to challenge the factual predicate and to argue that the courts intended sentence is wrong. If the prosecutors 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. 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 defendants 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. Hence, any construction of Penal Code section 1192.5 which requires prosecutorial consent to the permissible scope of judicial power in sentencing rather than consent to the defendants offer of a bargain of a plea for lenient treatment is an unconstitutional invasion by the executive of power reserved to the judicial branch. [Citation.]" (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276-277, fn. omitted.)
The record here shows that the trial court manipulated the charges instead of exercising its sentencing discretion. Though we acknowledge, as pointed out by defendants, that the court could have exercised its discretion to reduce count 2 to a misdemeanor at the time of sentencing, it could not do so prior to sentencing. While the court could "17(b)" the charge at the time of sentencing, it could not sua sponte reduce the charge under these circumstances from a felony to a misdemeanor as an incentive to get defendants to plead guilty.
It appears from the record here that this was more than an indicated sentence; it was a judicial decision to reduce count 2 a misdemeanor in exchange for defendants guilty pleas and prior to accepting the guilty pleas on its own motion, regardless of facts and argument by the prosecutor. Section 1192.5 provides that the court shall inform the defendant that its approval of the plea bargain is not binding, and it may be set aside at the sentencing hearing "in the light of further consideration of the matter . . . ." A prosecutors agreement to a plea bargain may be withdrawn "before a defendant pleads guilty or otherwise detrimentally relies on that bargain." (People v. Rhoden (1999) 75 Cal.App.4th 1346, 1353-1354, fn. omitted.) The same is true with an indicated sentence: "An indicated sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made." (People v. Delgado (1993) 16 Cal.App.4th 551, 555.) But here the trial court induced the guilty plea by firmly committing to reducing count 2 to a misdemeanor. And it appears that defendants pleaded guilty for that reason. "The traditional role of the judge, as envisioned by Penal Code section 1192.5, is one of approving or disapproving dispositions arrived at by counsel for defendant and the district attorney, who is the duly elected representative of the People. When the judge steps out of that role and bargains directly with the defendant as to the manner in which the judges discretion will be exercised the dignity of the judiciary is impaired and public confidence in the judiciary is diminished." (People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 914.)
While the practical aspect of defendants ultimate sentence may be slight, we agree with the People that the transaction should properly be characterized as an illegal plea bargain by the trial court. The fundamental principles behind plea bargaining were violated.
II
DISPOSITION
The judgments are reversed, and the sentences are vacated. The matter is remanded to the trial court with instructions to allow defendants to withdraw their guilty pleas if they so desire.
We concur:
HOLLENHORST, Acting P.J.
McKINSTER, J.