Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF142598, Kenneth E. Vassie, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Rod Pacheco, District Attorney, and Jacqueline C. Jackson, Deputy District Attorney, for Plaintiff and Appellant.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Respondent.
McKinster, J.
On the last day of trial for defendant and respondent Deandre L. Williams (defendant), the trial court learned that the prosecution had failed to subpoena its complaining witness for three of the six charges because the prosecution had lost contact with the witness. Therefore, the trial court decided that the charges for which the prosecution failed to produce the complaining witness (counts 1, 2, and 3) had to be dismissed, and indicated that a sentence of three years in state prison was an appropriate sentence for the remaining charges and allegations. After defendant pled guilty to the remaining charges, counts 4, 5, and 6, the trial court imposed a three-year sentence over the People’s objection.
On appeal, the People contend that the trial court’s order dismissing counts 1, 2, and 3 must be reversed, and the subsequent judgment and sentence must be vacated. As will be explained below, we agree that the trial court engaged in unlawful plea bargaining and violated the tenets of Penal Code section 1385. We will therefore reverse the judgment.
All statutory references are to the Penal Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL HISTORY
On April 9, 2008, a felony complaint charged defendant with (1) assault likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1) upon Jane Doe (count 1); (2) spousal abuse under Penal Code section 273.5, subdivision (a) upon Jane Doe (count 2); (3) making criminal threats to Jane Doe under Penal Code section 422 (count 3); (4) child endangerment of John Doe, a child, under Penal Code section 273a, subdivision (a) (count 4); (5) assault likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1) upon D.L. (count 5); and (6) assault likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1) upon L.F. (count 6). The complaint further alleged a prison prior under Penal Code section 667.5, subdivision (b) for a 2003 Vehicle Code section 10851, subdivision (a) conviction.
A preliminary hearing was held on May 5, 2008. The complaint was amended to add a section 12022.7, subdivision (a) (great bodily injury) enhancement, and a section 1192.7, subdivision (c)(8) (serious felony) enhancement to count 6.
At the preliminary hearing, Jane Doe, the victim in counts 1, 2, and 3, testified. On April 3, 2008, at approximately 7:00 p.m., defendant came to the apartment Jane Doe shared with her sister, D.L. When defendant arrived, Jane Doe let him into the apartment. The two of them started talking about their son, John Doe. Defendant wanted to see his son and went looking for him in the apartment. D.L., who was nine months pregnant, was hiding John Doe in her bedroom with the door locked. Defendant busted open the door. Jane Doe ran past defendant and grabbed John Doe. An argument ensued during which defendant and Jane Doe pushed each other, and defendant grabbed her arm and twisted it.
While holding John Doe in her arms, Jane Doe ran outside to attract attention. Defendant followed her outside and put both of his hands around her neck and started to lift her off the ground for about 10 to 15 seconds. Defendant told Jane Doe to let go of John Doe and said he was going to kill her if she did not let go. Although Jane Doe knew that D.L. was outside with them, Jane Doe was not sure what her sister was doing because everything went gray and she could not hear or see anything. Jane Doe believed that her sister jumped on defendant; defendant let go of Jane Doe and put D.L. in a headlock for a few seconds. Jane Doe tried to help her sister by pulling on defendant’s arms. At one point, defendant had both of them in a headlock. As defendant was leaving with John Doe, D.L. threw a hammer at defendant’s head. Jane Doe and her sister then ran back into the apartment.
City of Corona Police Officer John Garcia interviewed Jane Doe within minutes of the incident. He noticed tiny scratch marks near her right wrist, but no other injuries. He did not see any redness or bruising on her neck.
L.F., D.L.’s boyfriend, also testified. He was walking home from the store that evening with his three-year-old son when defendant drove up in his truck. Defendant said something L.F. did not understand. Defendant then hit L.F. in the face and body 20 or more times. The attack left L.F. with two broken ribs, two cuts to his left eye, and required him to take one month off work.
Officer Garcia contacted defendant by telephone and asked him to come to the police station. Defendant agreed and came in as arranged. Defendant was held to answer to all charges.
On August 11, 2008, the People filed a motion to trail the jury trial because they were still in the process of securing a witness. On August 26, defense counsel announced that the defense was ready for trial. The People again requested to trail the matter for trial until September 5—the last day for trial under section 1382—because they were still in the process of securing witnesses. The trial court granted the motion.
On September 5, 2008, both parties announced ready and the case was sent out for trial. The case was transferred to Department 2J. At 3:27 p.m., a conference was held in chambers between the judge and both counsel.
The record does not contain the in-chambers discussion. Upon returning to open court, the following colloquy occurred:
“[PROSECUTOR]:... The People would object that this is an illegal plea bargain and that the defendant’s current exposure is 10 years; that Counts [3] and [4] are [section] 1192.7–type charges, and there’s no reason for any plea bargaining to happen. The defendant should be pleading to the sheet, and he should be getting an appropriate amount of time based on the charges.
“There’s [sic] three victims in this case. One of the charges includes a [great bodily injury]. There’s no reason for that to be stricken.
“THE COURT: Okay, I think, for the record, we should also put on as you, when we discussed it earlier without the court reporter, one of your principal witnesses cannot be located; isn’t that correct?
“[PROSECUTOR]: Yes. The victim, one of the victims, is currently hiding from us, and we have had an investigator go out and do due diligence to locate her. She did testify at the preliminary hearing; and that we would move for the victim to be found unavailable and for that testimony at preliminary hearing to come in, to be read into the court record during trial.”
The court responded: “As I indicated earlier, I’m not sure I’m going to be able to go with you on that one.”
Thereafter, defense counsel and the court clarified what was discussed in chambers—that the court would dismiss counts 1, 2, and 3 under section 1385, based on the unavailability of the witness. The court also commented that the People “have indicated they want to proceed on Counts [2] and [3]. But unfortunately, they’re unable to do so because of the inability of locating the necessary witness.”
The court then inquired if defendant had filled out the plea form. Defense counsel stated that she wanted to discuss the court’s intentions first. The court had indicated that a sentence of three years was appropriate in this case. The court again addressed the prosecutor’s objection to dismissing counts 1, 2, and 3: “I know she objects to the disposition that I’m suggesting, but I don’t think it’s an unfair disposition as long as she can’t find the witness[.]” Defense counsel inquired how the court would address the prior prison term enhancement if defendant admitted the prior conviction allegations. The court then asked the prosecutor for her opinion on the enhancement. The prosecutor argued that an additional one-year term was required if defendant admitted the allegation. The court then indicated that it would dismiss it. After further discussion, the court stated that it would stay the punishment for the enhancement.
At this time, the prosecutor renewed her objection to the dismissal of counts 1, 2, and 3; she argued that the court should conduct a hearing on the prosecution’s due diligence to obtain Jane Doe’s presence for trial. The court indicated that it was accepting the prosecutor’s representation that the district attorney’s office had been trying to locate the witness but had not been able to find her. The prosecution had not subpoenaed the witness and had lost communication with her a week or so prior. The court offered the prosecutor an opportunity to articulate, on the record, the efforts the district attorney’s office had made to locate Jane Doe and the length of their investigation. The prosecutor declined the court’s offer because she did not know everything the investigator had done to locate the witness. A recess was then taken for defendant to sign the felony plea form.
The case was called again at 4:00 p.m. The prosecutor again objected to the dismissal of counts 1, 2, and 3, and argued the People would be able to proceed on those counts with the testimony of D.L. and the preliminary hearing testimony of Jane Doe. The court responded that: “This is the similar stuff that you reit- —that you said before. Counsel, I listen[ed] to you carefully before, and I did consider what you said before. Keeping on keep repeating the same old thing doesn’t change anything in my view.” When the prosecutor stated that she wanted to preserve the record for appeal, the court responded as follows: “Counsel, you can appeal, if you wish. It doesn’t make me start shaking with fright to have to say that. You know. You have a right to appeal, if you wish. Good luck with the appeal.... I’ve explained what I thought was appropriate under the circumstances, and... I think what I’m doing in my discretion is fair and reasonable under the circumstances.” The court then proceeded to take defendant’s guilty pleas as to counts 4, 5, and 6. In discussing count 6, the court advised defendant that there was an allegation attached to that count that he personally inflicted injury. The court indicated it would stay imposition of sentence on the great bodily injury allegation on count 6. The court then asked defendant if he pleaded guilty to count 6; defendant responded yes. Defendant also admitted the prior prison term allegation.
The trial court sentenced defendant to state prison for three years (midterm) on count 6, the principal count, and imposed a concurrent three-year sentence on count 5, and a concurrent two-year sentence on count 4. The punishment of the prior prison term enhancement was stayed. The trial court dismissed counts 1, 2, and 3, and struck the enhancement on count 6.
On November 3, 2008, the district attorney filed a notice of appeal contending that the trial court unlawfully sentenced defendant as part of an illegal plea bargain.
II
ANALYSIS
The People claim the trial court engaged in unlawful plea bargaining. Specifically, they argue that the trial court improperly dismissed counts 1, 2, and 3 in order to impose its predetermined sentence of three years. For the reasons set forth below, we agree with the People.
Because we reverse the judgment based on the fact that the trial court engaged in illegal plea bargaining, we need not address the People’s remaining contentions.
In People v. Orin (1975) 13 Cal.3d 937 (Orin), on which the People rely, the California 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.) In Orin, the defendant was charged with three counts: attempted robbery, count I; burglary, count II; and assault with a deadly weapon, count III. The prosecutor announced ready for trial, “stating that the People were ready to proceed to trial on all counts and that any plea to count III was unacceptable.” (Id. at p. 940, fn. omitted.) The defendant’s attorney informed the court that the defendant was willing to withdraw his plea of not guilty to count III and enter a plea of guilty to that count. The court replied it was “‘willing to accept that plea at this time as to Count III and put the matter of the disposition of the remaining counts over to the time of probation and sentence proceedings. This would be in the nature of a plea bargain in which the People do not wish to enter, as stated by [the prosecutor] and with the further understanding that if the Court feels that it cannot at that time accept it, that the Court would allow you to set the plea aside and go to trial.... The Court, on it’s [sic] own motion, will dismiss the remaining counts against you.’” (Id. at pp. 940-941.) The prosecutor again objected to the proposed arrangement and indicated that the People were ready to proceed to trial on all three counts. (Id. at p. 941.) Thereafter, the trial court took the various waivers, and the defendant entered a guilty plea to count III. At sentencing, the court denied probation, sentenced the defendant on count III, dismissed counts I and II, and entered a minute order that stated: “‘Remaining counts dismissed in interests of justice.’” (Ibid.)
The Supreme Court discussed the nature of the plea bargains and made a number of observations. “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. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the People’s acceptance of a plea to a lesser offense than that charged, either in degree [citations] or kind [citation], or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the ‘bargain’ worked out by the defense and prosecution. [Citations.] But implicit in all of this is a process of ‘bargaining’ between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them. [Citation.] [¶] However, 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. Such judicial activity 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. [Citation.] In the instant case it is undisputed that the prosecution did not agree to the arrangement by which the charges against defendant were disposed of; it is therefore clear that the matter under consideration herein does not involve a plea bargain.” (Orin, supra, 13 Cal.3d at pp. 942-943, italics added, fns. omitted; see also People v. Allan (1996) 49 Cal.App.4th 1507, 1513; People v. Woodard (1982) 131 Cal.App.3d 107, 110; Santobello v. New York (1971) 404 U.S. 257, 260-262.)
The Supreme Court then explained that “the dismissal of counts I and II is manifestly invalid under section 1385 because of the [trial] court’s failure to comply with the following provision of the statute: ‘The reasons of the dismissal must be set forth in an order entered upon the minutes.’... [¶]... [¶] In the instant case, the trial court purported to exercise its authority under section 1385 by merely checking a box at the bottom of a printed form, specifying no reasons to justify its dismissal of the attempted robbery and burglary charges. The record discloses no statement of reasons whatsoever in connection with the elliptic order of dismissal at the bottom of the form, [citations]; nor do we find anywhere in the pertinent part of the record... any reasons stated which by clear incorporation or reference may be deemed to be the ‘reasons of the dismissal... set forth in an order.’ [Citation.]” (Orin, supra, 13 Cal.3d at pp. 943-944.) Discussing the sentence in the context of the improper dismissal of the first two counts, the court noted: “We can only conclude that the court accorded defendant a more lenient disposition of the charges without any reason other than that defendant entered a plea of guilty to one count.” (Id. at p. 949.) It also stated: “We are unable to conclude that in the present matter the court’s action was based upon a proper exercise of sentencing discretion. Its disposition of the instant case cannot stand.” (Id. at pp. 950-951.) The Supreme Court reversed the matter with “directions to grant defendant leave to withdraw his plea of guilty to count III....” (Id. at p. 951.)
We are faced with a similar situation here. In Orin, the trial court noted on the record that the plea would be in the nature of a plea bargain and that the prosecutor disapproved; the trial court failed to state sufficient reasons for its discretionary decision to depart from the midterm sentencing norm; and the trial court failed to enter reasons on the minutes for the purported dismissal of enhancements pursuant to section 1385. In this case, the trial court expressed its intent to dismiss counts 1, 2, and 3, and that defendant’s plea would be in the nature of a plea bargain; the prosecution vehemently disapproved of the agreement at various stages of the hearing; and the trial court failed to enter its reasons for dismissing counts 1, 2, and 3 on the minutes pursuant to section 1385.
Here, defendant concedes the trial court failed to state reasons in writing for dismissing counts 1 through 3 as required by section 1385. “‘“[I]f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385.” [Citations.]’” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 532, quoting Orin, supra, 13 Cal.3d at p. 944.) Nevertheless, defendant argues that the reasons can be deduced from the transcript containing the court’s reasons, i.e., the prosecutor’s failure to produce Jane Doe as a witness. However, in a recent California Supreme Court decision, the high court reaffirmed the long-established requirement that under section 1385, courts must set forth their reasons for dismissals in the minutes or their orders are ineffective. (People v. Bonnetta (2009) 46 Cal.4th 143, 150-151.)
Section 1192.7, subdivision (b) provides that “plea bargaining” means “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.” (Italics added.)
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. No “bargaining” is involved because no charges are reduced. (People v. Vessell (1995) 36 Cal.App.4th 285, 296.) In contrast to plea bargains, no prosecutorial consent is required. (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271.)
The record here unmistakably reflects no plea by defendant to counts 1 through 3, as the trial court dismissed those counts because the victim could not be located to testify. In addition, the record is clear that the trial court was intent on sentencing defendant to three years in prison as to counts 4, 5, and 6, and the enhancement, and dismissing the first three counts. The court manipulated the charges to reach a predetermined result instead of exercising its sentencing discretion. “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 judge’s 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.) We can only conclude that the transaction was an illegal plea bargain.
Although the victim, Jane Doe, could not be located to testify, the prosecutor informed the court that the victim’s sister—who witnessed the acts charged in counts 1, 2, and 3—was available to testify. Moreover, we note that the trial court failed to conduct an Evidence Code section 402 hearing on the issue of Jane Doe’s unavailability, even though the prosecutor requested such a hearing.
In view of the foregoing, we find the judgment must be reversed with directions to grant defendant leave to withdraw his guilty plea. (See Orin, supra, 13 Cal.3d at p. 951.)
III
DISPOSITION
The judgment is reversed, and the sentence is vacated. The trial court is directed to allow defendant to withdraw his guilty plea.
We concur: Hollenhorst, Acting P.J., Richli, J.