PEOPLE v. CLANCEY

Appellant's Answer Brief on the Merits

Cal.September 10, 2012

COPY Iu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, | Plaintiff and Appellant, Case No. S200158 V. | SUPREME COURT WESLEY CIAN CLANCEY, . FILED Defendant and Respondent. . SEP 10 2012 Sixth Appellate District, Case No. H036501 Frank A. McGuire Clerk Santa Clara County Superior Court, Case No. C1072166, C1073855 Deputy The Honorable Rene Navarro, Judge APPELLANT’S ANSWER BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER ? Senior Assistant Attorney General ERIC D. SHARE : Supervising Deputy Attorney General - LAURENCEK. SULLIVAN Supervising Deputy Attorney General State Bar No. 72857 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5849 Fax: (415) 703-1234 Email: Larry.Sullivan@doj.ca.gov Attorneysfor Plaintiffand Appellant TABLE OF CONTENTS Page TSSUC oeeeeeecceesseeeseetecececeececenecesneeeeasesseceeeerssesssecaeseneueseasersecsaseesseseeesaseseneeeas 1 Introduction .......cccccccesseenceecseceseeseeevercecteeseseaecesecesauacsesessecseesseeecseesaeeessagengs 1 Statement of the Case......cccecccceseesssessesenseesesesseneeeesssesaeseassessssaaeesateseeeenates 3 A. Charge 0... cceeesessereceeccsseesseesesetceeesnesnseceneeseneesseeeenaees 3 B. Trial court proceedings...eeeceeeseeseeeeeteeeeneeees 4 C. Court of Appeal decision... cee eeseseeeseeeeeeeeneeeeees 8 Summary of Argument........ eee e cesses ereeetenseeeeeeseresseerssesesesesssaeessseeeneaes 12 ALQUMENE ooo... eee ccceceecceseeseeersceteceeeneeeseeteeeaeeaeecssessaaeesseseseesesesaeeoneaseaseegeey 14 I. A trial court’s offer of a dismissal of findings and a specified sentence on condition of and in exchange for a plea of guilty or no contestis a judicial plea bargain, not an indicated SeENteNCeoeeeseceseeteeeeeeeteeeeeeeateeeees 14 A. Thetrial court’s exchange of promised sentencing leniency for defendant’s waivers violates section 1192.5 and constitutes an improper inducementofthe defendant’s pleas......... 15 1. Thetrial court substituted itself for the prosecutor by making a conditional plea agreementin violation of section 1192.5 AN OFT ae cececccnececeseceeeesaeeeseetsneesereeetereseeneees 15 2. Judicial plea bargains underminethe plea bargaining SYStCM 0... eee eeeeeeeeeeseeeeneeeeeaee 17 3. Judicial promises of leniency given to induce a defendant’s waiveror forfeiture of fundamental constitutional rights imperil the CONVICTION...cee eeeteeteeeneeeenee 18 4, Thetrial court’s role in approving a conditional plea agreementis compromisedbyjudicial plea bargaining...... 20 B. The record establishes a judicial plea bargain.......... 21 TABLE OF CONTENTS (continued) Page C. Thetrial court’s ruling and the dissent’s view of an indicated sentence are meritless...eee 22 D. The court’s plea agreementrests, in significant part, on illusory Consideration .........ceeeecseeseeseeeeens 25 II. Thetrial court’s plea agreement with defendant was not a permissible indicated sentence... ceeeeeeeeeeeseteeee 26 A. Defendant’s polemic on standing, gaming, consent, and best possible results is unsupported by authority 0...cee eeeeeetsseessssecssseneeeseesseseesesenes 26 B. A conditional plea agreement for sentencing leniency by the trial court cannot be sustained as an indicated sentence based on expedient inducementofpleas “to the sheet”...eeeeee 32 C. Defendant’s view of indicated sentencing as unreported judicial bargaining for pleas “to the sheet” 1S UNPCTSUASIVE........c ce eeeeeeeeeeetteeetseeteeeeeeneens 34 D, Woolsey is a correct statement oflaw... 36 III. Itis unnecessary to decide if a defendant may withdraw pleas if the trial court rejects an indicated SCNLCNCE......csccececeseeeeeneeeseeceeeeesseesseecseeeseeessecsseesesseseeeessreess 37 IV. Thethree strikes law prohibited the trial court from offering to strike the prior serious felony conviction as inducementfor the pleas ......eeeeeeeeesseetesreeeeeeeneneneenenees 40 V. Alternatively, if defendant’s pleas stand, the trial court should be directed to vacate its award of additional presentence credits under section 4019 .....ccccceeseeseeseteeee 42 CoOnclUSION ..cccccccccsssceecccccccescceccucecceccucecececueverecsaceuecaueusncecscueesecceuuecesssseeeeees 44 i TABLE OF AUTHORITIES Page CASES Bordenkircher v. Hayes (1978) 434 US. 357i eccceccssscecceesenseeseeceeecseceseeceeenanevecnaeeaeeesneesatecneseateneee 42 Bryce v. Superior Court (1988) 205 Cal.App.3d 671 icc ccecsseeeseseessecsecssesnecesseseeseeasectecseeeaetaetarees 23 Burris v. Superior Court (2005) 34 Cal.4th 1012 ooo. ccccccsesseceeeseseeeeecseeesreseeseesesseeseeeeaseeeseeatens 18 Corbitt v. New Jersey (1978) 439 U.S. 212. eececcccceccceeeeeeeteeeeceseseeeceeeeneeseceesssesecsaeeseaesleeseeessateas 20 In re Alvernaz (1992) 2 Cal4th 924 ooo cccecseseseeceseeneceeteeaeseeeeeaeeesteesereeeeeens 1, 17, 20 In re Coley (2012) Cal.4th —, [2012 WL. 3764526 *23 | vecccceecscecssseetssesteeees 40 In re Greg F. (2012) Cal4th =, —- [2012 WL 36041512 *20] oneeeeeeees40 In re Lewallen (1979) 23 Cal.3d 274 oo. leeceeseeesesreeeseereeeaees vesceseaeeseaeseseatateseenesesesesspassim Missouri v. Frye (2012) 566 U.S. ,__ [132 S.Ct. 1399, 1407, 182 L.Ed.2d 379] ........ 1, 42 Parker v. North Carolina (1970) 397 U.S. 790. eececcessesecseesseseesnseeteveessecsessecnaeesasesseneeeeecarensesaerareatens 42 People v. Allan (1996) 49 CalApp.4th 1507 ooo. cicceecessesseseccsceneesseesesnrsaeesteseesieessseeseeteees 8 People vy. Brown (2012) 54 Cal.4th 314 oooccccecseeesecerseeeeneteesseeceecerseesseessaesteverseeenreneens 43 People v. Bunn (2002) 27 Cal.4th Loic ccceccescecececneecseeeseeceeeseaeesaeeesaeeseesieeseeeesaessaseateseegs 41 it People v. Collins (2001) 26 Cal.4th 297 oo cceeeeesesesseeseescnsenecseesetarsesscseseesseeees 12, 19, 20, 27 People v. Correa (2012) 54 Cal.4th 331 oieeceseceessesetsessesssseecsectecsecnesesseasnecssesesneeenseneeses 4 People v. Dixon (2007) 153 Cal.App.4th 985 ooo cccececcecenecreesssesseseeeestessensetsetscenerenens 19 People v. Duran (1998) 67 Cal.App.4th 267 ...cccceseccccseeerscsenseesecnensenenesecnessesseteneeses 43 People v. Edwards (1991) 54 Cal.3d 787 .o..eeceecseeesseeeeeesesseeseessessecesseeseeecseessesssseessenssssnenssiees 18 People v. Freyrer (2010) 48 Cal.4th 426 oo.cceeece cece eeeenereeteetieseceerssessenecnssseeeseeneereees 30 People v. Godfrey (1978) 81 CalApp.3d 896 wieeseesseseseeersesesecssensssesssseneeesenesseneey 20 People v. Hoffard (1995) 10 Cal.4th 1170 occcceececseeeee cesses ceeeesseeesessesessesseseseeseseseseeeseasenes 37 People v. Jensen (1992) 4 Cal.App.4th 978 oo.eserecccseseceseesessesecnesteesesesesnsensssenesaeiees 14 People v. Jurado (2006) 38 Cal.Ath 72 oo. eciccceccseecseeeescseevsstecessssscsssesessecssssesssessienecesserens 18 People v. Kaanehe (1977) 19 Cal.30 1 occ cceceseeeeecnecsceeeesteeeseesseneecsecesssssessssseseersneeserenseres 20 People v. Labora (2010) 190 CalApp.4th 907 oo. ecccccreesencseretsteresecsetneseenecees 9, 14, 27 People v. Lara (2012) 54 Cal4th 896 ooo cceceeesetseces cesses sseessecneeseeeseessesseeseeseneeegspassim People v. Michaels (2002) 28 Cal.4th 486 occcc eeessscsseteeesecsececnesssesecnresesteesseeeeneceesenes 18 People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523 ..ececeeleceseseeseesescnsesecsesssssscssescsereestssesserssnsssenensenees 17 People v. Nasalga . . (1996) 12 Cal.4th 784cececeeseeeeeecesssssereseressesessessestesseseneneeenees 43 iv People v. Orin (1975) 13 Cal.3d 937 o..cceeceeccccscescecceeeeeseeeresesasecesaeeseeseeeenstertessassneespassim People v. Rivera . (1981) 127 Cal.App.3d 136 .o.ccecccceccseeseeceeseseeeeeseeceeseeesseccsseseessessasesaneeaes 18 People v. Scott (1994) 9 Cal.4th 331 ooo. iececcesseseescecesenecseeccsenseseeecsesseesseesscsessseesssesaseates 43 People v. Segura (2008) 44 Cal.4th 921 ooeceecereecneeeeeesenteseeeessseeeesesseeaeenees 16, 17, 20, 23 People v. Smith (1975) 53 CalApp.3d 655 oo. ceesceesscescecceneeenseeteseesseseesseeseeeessressssseeane 8, 41 People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270 ooo. ceccccccsscteseeceeteseneesseestesssssessetecessesseseespassim People v. Superior Court (Ludwig) (1985) 174 CalApp.3d 473 occ cccccecssscceceseecssssesseesneseessseeseesseeseesesseaee 8, 40 People vy. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261 occ cceceecescesseesesseesssecssssecssscnssseeeeserens 8, 9, 34 People v. Superior Court (Romero) (1996) 13 Cal4th 497 ooo ccceccsecesecteccneeseceeeeceesessseeeseeseessteeeesseareneeeespassim People v. Superior Court (Smith) (1978) 82 CalApp.3d 909 occ eeccccccseenseesecseeseesseeeecssccssesseeeecsesenssessevsaeens 8 People v. Thomas (1992) 4 Cal.4th 206ceccccsesscessesssesesseteceesneseecssaeesseeescaeeesseneseeseaes 40 People v. Traylor (2009) 46 Cal4th 1205 occ ccccccesccssceseesessseseesuecesseeesscsseesessessaeesseetresserses 28 People v. Turner (2004) 34 Cal4th 406 oo. ccceccesececceessececteeneeeesesesnessessessessesassasseeeespassim People v. Vessell (1995) 36 CalApp.4th 285 ooo ieeeeeecteeneceseeseteesenesseeeeseteasereassetteeteetseees 36 People v. West (1970) 3 Cal.3d 595 wo iiccccccetesecesesesnectseseeeeseeetseeesseesseesesesersensesseessteas 15, 16 People v. Williams (1998) 17 Cal.4th 148 oooccc cccccccsecteesteeeetsecseeeesssssstessseessessasestensenspassim People v. Woolsey (2010) 184 Cal.App.4th 1136 oo.eeeeeeseeeeneseeseeeeeeeseeneespassim People v. Zambia (2011) 51 Cal.4th 965 oooceeeeeee eres beesaeeaeeseesesseseseessensseeteaseesecee? 40 United States v. Goodwin (1982) 457 U.S. 368 vec eccsceeesseceseteesesseseecessecssnsessesseneesseseessssesesenaeeeegees 18 Weatherford v. Bursey (1977) 429 U.S. 545eecteeeeneteeetecsesseseesseccsesesseseesseeseeseaeesesseesesaees 42 vi STATUTES Penal Code § 148, subdivision (a)(1) ....c.cecceesseccsssecestecceneesseeeeetseeseecseesseeesesseessecessasenees 3 § 148iccccccccseceecsseseesscescereeesesseseeesaeseeesseseeseseeseesecsssseeseaessseasersessensenses 3 § 290 et SOG. oo ceeeeececeeceseeeeeceeeeeeeneseeeesseerseeesaecsaeesaeeneeseenieseatesecetseeeneeeseenes 42 3 ASOec eccccscesetsceseesenseeseseesceececesecesecsessessecessesecerssesseedesesiesseeseseesssesecsecseees 3 § 460, subdivision (D) 2... eee eeeeeeeeeeeeeeeeeneeeeeeeseeseaeeeeecesceseceseeessesssesneeesessaees 3 § 470, SUDGIVISION (CG) .....ececcceeseeceeceneeeeeceeeeeeseeeesesseeseeesaeeatenseeecsecsseeatecseerates 3 SABAcccccesscneceneccsssecaeceesaecneecoesreesaeseeesaeseseseesesaecasenessaaesaeeeseaseateseenses 3 § 484g, subdivision (8)... eccscesccceeceseeeeesesseteseeseeseseeeecaeseeseesterseseestessenees 3 SBTeccccceccensecsecsecesssecaeensessecesecseceneesecerasieecesesensesaseesieesuessessseseestesseases 3 § 487, SUbCIVISION (2)... ceeceeceeseeeeeeeeeeeesaeeeseeseseeeeaeeeeseeaeeeseaeeeseesesseesteneenees 3 SSSeeeceseceseesecaeecseecseenseesecesecseceaesecceesieseeeeseesesaessasesnsaeesesseeseeseessenees 3 § 496, SUbGIVISION (8)... cc eeeeeseeseceeceseteesesesseteseeaeseeteeseeeereeaesaessessesseensenees 3 BSececcecccseesccesessecscecsseeseeeeaeeaeecseceesseceecesecseeeaesaeesessseseeetssuessessesaeetensenses 3 § GO4ee eececceceeeeceeceeesseceeesecseceeaecenecsscneessassaeeaescecseeeesnessesesesseesessesseeseeeesaes 3 § O67S ..eccccccesccnscesecseecsceeeeeseeseesaeseaeecesaeeeseceeenseseeesseeessessessecssaesseesessteaesaees 42 § 667, SUDAIVISION (C)..... cee eeeseeeeeesceteeteeeeeeeeceeeeeeesceaeessessesaeeeaeeeeenesteseaesateate 3 § 667, subdivision (2) .....cceeseeeeeeesseesecceseceescerseceeenaeeaeeaeeseenstesesseeatenesaes 11 § 667, SUbCIVISIONS (D)-(1)..... ce eeceeeeeeeeteeteeeeeteeeeceaeeseeeeseceaeenseerseeseaesstenseesaeenees 3 § LOLBeeceecceceeeeeseesseaeeseeeseeseesaeesesseessesaesaeedeesaecsesaeseeseeestesaeees 23, 38, 39 BS LDT0 LQeeeeceeeeteereeeee Leseaceaceeseeeseesecacecseeaeeeaecastsesasesasseeecsseesseassssersentens 3 § 1170.12, subdIVISION (8)... ee eee eseeeeeeseeeneeseeeteeeeseecaeeeaeetneetatteeteeeesesseees 3 § 1170.12, subdivision (€)...... ce eeeeeseeeeeceneecneesterseseeseestestateesaeeesees 11, 13, 40 SLLODLeececceesceseeeeeeseseesecereeseesseeseetsesseeseesseeaesaevaeseseesseseseassatesesseeseesgees 15 FOLccsecceesecessseeesensecseccaeeseeesecaeessesaeseresaessesaseseesessaeesuesrsseesseegses 15 0 15 S192gece ccccccccescecccesecessssceceesseccensseeceessaueceeaseeccssesensrsesreresseesateaspassim F192eee eeeceeceecenecececseeeceaeensceeenenssesaecseceeeessesceeeeecaeseeseeeetaeeseeaeeaess 11, 42 § L192. 7(D) ce ceccesccccecsecssecceecneeseeeseeseesaeeceesnesseseeeesereseeneseetecaes 8, 13, 14, 40 SLBSSeecectcceesseesseccseecsaceesceeseaeecesaeessaeeesseeseeaeesscesensesseeseseatensssenaeepassim § 1385(a)eeehevaceceaeesecaeceseeeeeesenseesaeesecaeeeseeaeceeesessesueeeesasseseeeass 4,6 S LBS7 ee eccceccecscssecncecsecneeseesecseeeaeceeesaececsaeeneseceseeceesesesseesseaeensesserseeateneenees 28 § 2900.5. .ececccccsccssceseesecnecseeeessceaceeseseseseseceaeeeececeassaeeseeseeaeesatseeseeseeseeeess 25 § FOLDecccccccccscenscsseeseeceeseeseeaeecseceeecseceesseceesseensseescsesnessseessesseesesaees 42, 43 § 4019, subdivisions (b)(1), (c)(1) and (f) oo.e eee seceeeeeeeeeeeereeeeteeseens 42, 43 § 4019, subdivision (h) ......ccececccsecesseceeececseeeeeeneeesnerestsesenrecessseseesstesenseeeas 43 J 12022Loe eecccccceencenceeeeeeneceeceaeeeseceeeesseecsesaeseeesaeeaeeeseaessteeaeseessesseseensenees 3. Statutes 2009, 3d Ex. Sess., Chapter 28, § 50... cececccecssscesseecesseesseessetessecees 42 COURT RULES California Rules of Court TUle 8.S00(C)(2) oo. eeeceeececceeceneeeeeeesneeenecseeeeneeenaeseeseenersaeeseeeaseeeasececeeesneesseentens 4 vil OTHER AUTHORITIES Scott & Stuntz, Plea Bargaining as Contract (1992) 101 Yale L.J. 1909, L912eeeeeeeeeesdeeeeeteneeeneesvevenssesseeseessecsuesseseasesesesecssenerscersesseeeespesseeesseneey 1 Vili ISSUE Whetherthe trial court’s offer to dismiss a prior strike and give a sentence for a package disposition below the statutory minimum punishmentandthe prosecutor’s offer, or else to allow the withdrawal of the pleas, was judicial plea bargaining or indicated sentencing. INTRODUCTION “[P]lea bargaining is an integral componentofthe criminaljustice system and essential to the expeditious and fair administration of our courts.” (In re Alvernaz (1992) 2 Cal.4th 924, 933.) “‘To a large extent... horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargainingis. It is not some adjunct to the criminaljustice system;it is the criminal justice system.’” (Missouri v. Frye (2012) 566U.S.__,__: [132 S.Ct. 1399, 1407, 182 L.Ed.2d 379], quoting Scott & Stuntz, Plea Bargaining as Contract (1992) 101 Yale L.J. 1909, 1912,ellipsis and bracketed phrase in Frye.) Defendantprefers the system of the Santa Clara County Superior Court’s aptly named “Early Resolution Calendar” (ERC). It makes plea agreements at “somewhatless than the going disposition at a trial department.” (1 RT 7.) Informed in chambers bythe courtof its offer to defense counsel to dismiss a prior strike and to impose a below-minimum five-year term in exchange for a package disposition, a prosecutor, who tendered an eight- or nine-year sentence to resolve 11 felony and 3 misdemeanorcharges, asked that defendant’s two-strike cases be sent to the trial department wherea preliminary hearing wasset the following week. (1 RT 4; see 2 RT 56.) The court instead consummatedits plea agreement over the prosecutor’s objection at a hearing the next day. (1 RT 4-5.) Directing defendant’s attention to “your disposition” (1 RT 3) and to “objections to the disposition” (1 RT 8), the court characterized the offer as its “plea agreement” (1 RT 9), and its “promises given here” (1 RT 16). Defendant acknowledged the promises as the inducementfor his pleas (1 RT 16, 17), then pleaded no contest to all charges and admitted the allegations in both cases (1 RT 18-23). . At sentencing, the prosecutor objected again and movedfor reconsideration of the plea agreement as unlawful. (2 RT 30, 32; see CT 42-45.) The court respondedthat the prosecutor’s comments reflected a judicial plea bargain and an abuseof discretion only when “viewed in a | vacuum.” (2 RT 54-55.) It ruled that ERC “settlement discussions with all parties” (2 RT 55), historically conducted with the district attorney’s consent (1 RT 58, 60), result in an “indicated sentence” (2 RT 58), representing its “informed”and “fair offer” under the circumstances (2 RT 58-59)... The court dismissed the strike and imposedthe five-year sentence “in keeping with the agreed upon disposition.” (2 RT 62.) A divided panel of the Court of Appeal found an unlawful judicial plea bargain and vacated the pleas. (Ct.App. Maj. Opn. (MO) 1, 13; Ct.App. Dis. Opn. (DO 1, 37.) Its judgmentis correct, andthe trial court erred in finding an indicated sentence. In its accepted form—not challenged here—indicated sentencing meanspleading “to the sheet” without conditional promises whenthetrial court predicts (indicates) the sentence or sentence range its ordinary discretion yields uninfluenced by promises or concessions ofleniency whether conviction is bytrial or by plea. That is decidedly notthis case. STATEMENT OF THE CASE A. Charges A complaint charged defendant with two counts of forgery (Pen. Code, g 470, subd. (d)),’ two counts of grandtheft (§§ 484, 487, subd. (a)), and false personation (§ 529). The complaint alleged onepriorstrike conviction (§§ 667, subds. (b)-(i), 1170.12).” (CT 18-19.) In a separate case, the complaint charged defendant with second degree burglary (§§ 459, 460, subd. (b)), concealing stolen property (§ 496, subd.(a)), three counts of attempted grand theft (§§ 484, 487, subd.(a), 664), misdemeanoraccess card fraud (§§ 484g, subd.(a), 488), felony access card fraud (§§ 484g, subd. (a), 487), and two misdemeanorsof resisting an officer (§ 148, subd. (a)(1)), and giving false identification to an officer (§ 148.9). The complaint also alleged an on-bail enhancement(§ 12022.1) and theprior strike conviction (§§ 667, subds. (b)-(i), 1170.12). (CT 22-25.) B. Trial Court Proceedings’ ' Further undesignated statutory referencesareto this code. * Underso-called “two-strike” punishmentstatutes,if the current offense is a felony, and the defendant has one qualifying prior “strike” conviction, the term for the crime is doubled; probation denial with a prison sentence is mandatory; consecutive sentencing for crimes on separate occasions is mandatory; there is no aggregate term limitation on consecutive sentences; and prison conduct credit reduction is limited to one-fifth of the total term. (See §§ 667, subd. (c), 1170.12, subd.(a)). * Defendant’s petition for rehearing asserted no misstatementor omission offact by the Court of Appeal. (Ct.App.Pet. for Rehg. 1-6.) Accordingly, this court is entitled to rely on the statement offacts in the opinion. (Cal. Rules of Court, rule 8.500(c)(2); see People v. Correa (2012) 54 Cal.4th 331, 334, fn. 3.) Additional facts appear in footnotes 5 through 7, post. “At a change-of-plea hearing, defendant’s trial counsel announced that defendant would be ‘pleading as charged’ and admitting the ‘strike prior allegation,’ and‘[i]t’s anticipated at the time of sentencing the Court will grant an oral Romero motion, [and] thereafter sentence Mr. Clanc[e]y to five years in state prison.” [1 RT 4.7 The prosecution objected to ‘the Court offer’ because the court had ‘promisedfive years’ and ‘[t]he only wayto get to that term would be for the Court to strike his prior serious felony conviction.’ [1 RT 4-5.°] The court respondedthatthis matter was on the ‘Early Resolution Calendar’ andthat ‘matters that are placed in ERC calendar[sic] are usually with the understanding of both sides settled for somewhatless than the going disposition at a trial department.’ [1 RT 6-7.] The court thereafter asked defendant: ‘Mr. Clanc[e]y, did you hear your * People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero), held that section 1385(a) permits a court on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law. ° The prosecutor additionally objected “to the taking ofthe plea” because “of the Court’s promising the defendant the Court would strike his prior serious felony conviction if he changes his plea in these cases.” (1 RT 4-5.) The People’s position, the prosecutor said, was that an eight- or nine- year term under the Three Strikes law was reasonable if defendant pleaded before the preliminary examination, “which we could get to by dismissing one or two counts.” (1 RT 5; see also 2 RT 56.) The prosecutor noted a “substantial difference” between the prosecutor’s tendered resolution and the court’s offer, given the understanding of the court and the parties that the prior strike’s dismissal would increase defendant’s presentence conduct credits and significantly shorten his time in prison. (1 RT 5.) The prosecutor noted a victim also had objected to the court’s offer. (1 RT 6.) Addressing “the comments yesterday in chambers,” the prosecutor said that he was unawareuntil then of “somekind ofpractice or agreement ... my office has with the Court on these types of cases,” which was not the prosecutor’s “personal practice,” and that he would not have agreed to discussions in the ERC had he been aware “this was going to happen.” (1 RT 6.) plea agreement?’ Defendant acknowledged that he had, and the court asked: ‘You agree with it?’ Defendant said ‘Yes, sir.” [1 RT 9.] The court proceeded to advise defendantofhis rights and obtain his waivers of them. [1 RT 13-16.] It then asked the prosecutor if he wished to engagein further. examination of defendant. The prosecutor obtained defendant’s acknowledgement that he was aware his maximum term was 16 years and eight months in prison and his minimum term was11 years and four months, but he was ‘being promised no morethanorless than five years in state prison.” [1 RT 17.] Defendant then pleaded no contest to all of the charges in both cases and admitted the on-bail andstrike allegations. [1 RT 18-23.] “The probation report stated that the ‘CONDITIONS’of defendant's pleas and admissions were ‘Prison term offive years top/bottom. .. .” [CT 129.] Although the probation officer ultimately concluded that he ‘concurs with the Court’s indication of a State Prison commitmentoffive years,’ he also stated that this was ‘in accordance with the negotiated plea.” [CT 132.] The probation report also noted that, ‘[t]o stay within the parameters of the negotiated plea,’ the court would needto strike the punishment for the on- bail enhancement. [CT 144] “Thetrial court concededat the sentencing hearing that the prosecutor's objections, ‘if they were viewed in a vacuum,’ made it appear that ‘the court engagedin plea bargaining.’ [2 RT 54-55.] However, the court insisted that ‘if you step away from that vacuum and you viewthis 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 that for purposes of any reviewing court, I needto outline for the reviewing court how the conferences are structured and how they're held.’ [2 RT 54-55.] The trial court went on to describe how the ‘Early Resolution Department’ functioned. ‘[I]t’s [sic] function andit’s [sic] assignment[is] to settle cases.’ [2 RT 55.] It recounted how it had had before it a great deal of information about defendant before it made a decision aboutits ‘offer.’ [2 RT 55-58.°] ‘So it isn’t as though the court made an offer in a vacuum,butrather it was an informed offer that the court had, given the nature of the circumstances.’ [2 RT 58.] The court ‘felt that the offer was a fair offer given the circumstances and what I knew of the case.’ [2 RT 59.’] Thecourt highlighted that it was ‘understood’ amongall of the parties ‘that if there’s anything new that comesup,that the court has the ability to set it aside and to put the parties back in their original positions and not to makeit a condition ofthe plea.’ [2 RT 58-59.] The court noted that, on past occasions, it ‘has set aside pleas where I had indicated a sentence’ and then learned additional circumstances that ‘allowed the court to set aside the plea.’ [2 RT 59-60.°] ‘Andit isn’t as © The court referred to the unreported chambers conference the day before the plea hearing, “a date that we normally would meetfor discussions.” (2 RT 55-56.) ’ The court recalled when “I madethis offer,”it told the prosecutor that “you want eight or nine and I’m giving him five.” (2 RT 59.) The court acknowledgedthat it made the offer understandingthatits striking defendant’s prior strike would increase defendant’s presentence conduct credits, and that “[i]t makes a big difference,” but “notwithstandingthat I still felt the offer was a fair offer given the circumstances and what[the court] knew aboutthe case.” (/bid.) It awarded defendant enhanced presentence conductcredits pursuant to section 1385 and then extant case authority. (2 RT 64; see ArgumentV,post.) ® Compare section 1192.5, which governsconditionalpleas involving sentencing leniency negotiated by the parties. It reads: “Upon a plea ofguilty or nolo contendere to an accusatory pleading charging a felony ... the plea may specify the punishment to the same extent as it may be specifiedby the jury on plea ofnot guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it. [§]] Where the plea is accepted by the prosecuting attorney in open court and is approvedbythe court, the defendant, except as otherwise (continued...) though the court is engaging in plea bargaining because ofthe history that I’ve indicated for the record, that the district attorney, through their representatives have consented to.’ [2 RT 60.] ‘Defendant’s trial counsel noted, and the trial court agreed, that defendant would be entitled to withdraw his pleas and admissionsif the court did not ‘honor[its] agreement’ to strike the strike and imposea five- year prison term. [2 RT 45, 60-61.] Over the prosecutor’s objections, the trial court then struck the strike finding and imposed the five-year prison term, which the court referred to as ‘the agreed upon disposition.’ [2 RT 61-62.]” (MO 1-4, bracketed record citations and footnotes added.) C. Court of Appeal Decision The People appealed. The Court of Appeal held the trial court “engaged in unlawful judicial plea bargaining,” reversed the judgment, and directed that the pleas and admissions be vacated. (MO 1, 13.) The court found “all of the parameters of the court’s offer to defendant” needed to review for abuse of discretion, and saw “no basis for deferring to the trial court’s assertion that its actions did not amountto prohibited plea (...continued) provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [{] If the court approves of the plea, it shall inform the defendantprior to the making ofthe 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 ofjudgment, withdraw its approvalin 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 ofthe defendantto satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. [§] Ifthe plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and thedefendant may then enter the plea or pleas as would otherwise have been available.” bargaining.” (MO 9-10, & fn. 2.) It noted section 1192.7, subdivision (b) includes in its definition of a plea bargain a “discussion” between a judge and a defendantthat produces the defendant's agreementto plead guilty or no contest in exchange for a sentencing commitmentby the judge. (MO 4.) The court quoted People v. Orin (1975) 13 Cal.3d 937 (Orin), the “seminal case” condemningjudicial plea bargaining. (MO 4.) It noted Jn re Lewallen (1979) 23 Cal.3d 274 (Lewallen) later cited the disapproval of judicial plea bargaining in People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270 (Felmann), without addressing Fe/mann’s concept of indicated sentencing (MO 5-6). The court found six subsequent Court of Appealdecisions had failed to apply a “clear and coherent test” distinguishing an unlawful judicial plea bargain from a permissible indicated sentence. (MO 6-10.)'° The Court of Appeal held the trial court violated two principles that govern the distinction. (MO 10.) First, “{a] trial court “may not offer any inducementin return for a plea of guilty or nolo contendere.”’” (/d. at pp. 10-11, quoting Lewallen, supra, 23 Cal.3d at pp. 278-279.) It explained that a “proper indicated sentence is not premised on guilty or no contest pleas, but applies whether or not the defendant chooses to proceedtotrial,” ” Thestatute, designated hereafter section 1192.7(b), defines “plea bargaining” to mean “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 defendantor to the sentencing of the defendant.” © See People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909 (Smith); People v. Superior Court (Ludwig) (1985) 174 Cal.App.3d 473 (Ludwig); People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261 (Ramos); People v. Allan (1996) 49 Cal.App.4th 1507 (Allan); People v. Woolsey (2010) 184 Cal.App.4th 1136 (Woolsey); People v. Labora (2010) 190 Cal.App.4th 907 (Labora). disagreeing with Ramos, supra, 235 Cal.App.3d 1261, to that extent. (MO 10, fn. omitted.) The trial court’s plea colloquy impermissibly informed defendant“that it would imposea five-year term andstrike the strike ifhe admitted all ofthe charges and allegations.” (Id. at p.11.) “[T]he court’s goal was‘to settle cases,’” and “its offer was contingent on the defendant pleading and would not have beenvalid if he choseto exercise his right to trial.” (Zbid.) A true indicated sentence, the court said, is “nothing more than a prediction”and “is valid whether the defendantpleads or goesto trial.” (/d. at p. 12.) | Second, “an ‘offer’ by the court that provides the defendant with the option to withdraw the .. . pleas and any admissionsif the court decidesto impose a sentence other than the one offered is not a proper indicated sentence,” rejecting contrary dicta in Felmann, supra, 59 Cal.App.3d 270. (MO 11.) Thetrial court’s “commitment that defendant could withdraw his pleas and admissionsif the court did not follow through on it offer. . . _ confirmedthe existence of a bargain.” (/bid.) Its offer amounted to a “risk- free proposition for defendant” as he was promisedthe five-year term or a return to his original position, which “makesthe court’s purported ‘indicated sentence’ identical, from the defendant’s standpoint, to a true plea bargain... .” (Id. at p. 12 & fn. 4.) Thetrial court’s action lacked the characteristics of an indicated sentence, in which “if the court learns something new that makesits prediction inaccurate, the defendant is vulnerable to a sentence other than the indicated one and has no right to withdraw the plea.” (/d. at p. 12.) The dissent by a Santa Clara County Superior Court judgesitting by assignment accepted that an indicated sentenceis neither “a binding promise or guarantee” (DO 12), nor “conditioned ona... defendant’s pleading guilty or no contest” (id. at p. 14, fn. 12 and p. 16); instead, it should be a reliable prediction “conditioned on the facts remaining essentially the same at sentencing”(id. at pp. 13-14 & fn 12;see also id.at pp. 19, 21). Though acknowledging “the line between indicated sentences and plea bargains may not be bright and mayallow diverse interpretations” (id. at p. 14), the dissent said a defendant can withdraw pleaif the trial court does not impose the indicated sentence (id. at p. 13), rather than the | indication being “unconditionally binding on the defendant, though not on the court” (id. at p. 17). Few defendants, the dissent believed, would nsk pleading guilty otherwise and sentence indications “will lose meaning.” (/d. at pp. 20-21.) An unauthorized judicial plea bargain, the dissent said, requires showingthe trial court ““modifie[d] a sentence indication in response to the defendant’s reaction to the court’s initial indication” (DO 12, fn. 11); or promised a plea and waiverof trial would guarantee “a specified sentence, regardless of what facts may be shown at sentencing”(id. at p. 21); or “suggest[ed] that a post-trial sentence would be more harsh”(id.at p. 34, fn. 24). Thetrial court’s assurances to defendant were benign given the “true nature”ofthe trial court’s use of the word “promise.” (/d. at pp. 22-25, & fn. 22.) Reasoningthetrial judge is “particularly well situated to determine if he or she engaged in any negotiating or bargaining, particularly if the claim is that the activity occurred off the record” (id. at p. 26), the dissent “accept[ed] the implicit factual findings supportingthe trial court’s conclusion that it did not engage in plea bargaining, but merely indicated a sentence as authorized by precedent”(id. at pp. 22-27). Rejecting an argumentby the People not addressed by the majority, and contrary to Woolsey, supra, 184 Cal.App.4th 1136, the dissent endorsedjudicial promises to dismiss strikes (DO 29) as appropriate exercises of discretionary sentencing authority, “to be accomplished within the limits set by the Legislature” (id. at p. 31), “so long as the indication otherwise conformsto the formula for an indicated sentence”(id. at p. 33). 10 The dissent found “no record that the defense attorney talked the trial judge into changing his indicated sentence or that the judge was otherwise involved in negotiating with defense counsel regarding the sentence.” (/d. at p. 34.) It was irrelevantthat the trial court never “issued a sentence indication conforming precisely to the [dissent’s] model,” andthat it sought to justify its actions by “historical practices.” (qd. at p. 35, fn. 25.) And while not persuaded by defendant that the Three Strikes law exempts judges from its plea-bargaining prohibitions(id. at p. 36),'' the dissent considered the separation of powersto be violated if that law precludes sentence indications involving the dismissal ofa strike. (/d. at p.37.) The dissent concluded that the prosecutor made “no showingthat the court’s off-the-record sentence indication resulted from judicial bargaining or negotiating and it was nothing more than a conditional offer . . . outside the prohibitions of the Three Strikes statutes and within judicial sentencing authority.” (/bid.) SUMMARY OF ARGUMENT Therecord reflects an unlawful judicial plea bargain. Thetrial court exchanged increased sentencing leniency in a package disposition for defendant’s waivers by promising to dismissa strike finding to allow a below-minimum punishmentin a plea agreement. (1 RT 3-4, 7, 9, 16; 2 RT 58.) Orin, supra, 13 Cal.3d 937 held impermissible a functionally identical judicial plea bargain. Lewallen, supra, 23 Cal.3d 274 and People v. Collins '! Section 667, subdivision (g) (section 667(g)), states: “Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and proveall known prior felony convictions and shall not enter into any agreementto strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (2) of subdivision (f).” Section 1170.12, subdivision (e) (section 1170.12(e)) is virtually identical to section 667(g). We collectively refer to the statutes as the Three Strikes law. 1] (2001) 26 Cal.4th 297 (Collins) condemn judicial inducement of waivers | of fundamental constitutional rights by promised leniency and judicial addition of punishment for refusingto waive those rights. Romero, supra, 13 Cal.4th 497 held a court abusesits discretion under Orin by dismissing a sentencing allegation or finding simply because a defendantpleads guilty or no contest. The dangers of such bargains were described in Orin and manifested themselves here. Thetrial court’s agreementdistorted its duty to impartially consider the pleas. Its agreement preempted the prosecutor’s tender of a higher sentenceto resolve the cases by the court’s offer of a significantly lower sentence. With respect to its inducementofincreased presentence conductcredits, the agreement exposed defendant’s waivers and pleas as products, in substantial part, of an illusory sentencing benefit. Andthe agreement openedthe waivers to challenge on a claim they were coerced—a claim defendant remainsfree to assert if and whenit proves advantageous. | Thetrial court did not give an indicated sentence. It did notstate “what sentence it will imposeif a given set of facts is confirmed, irrespective of whether guilt is adjudicated attrial or admitted by plea.” (People v. Turner (2004) 34 Cal.4th 406, 419 (Turner).) An indicated sentenceis a predicted sentence, not a promised dismissal or a conditional plea agreementthatrestricts ordinary sentencing powers. A trial court may not, in derogation of section 1192.5, under the guise of indicated sentencing, substitute itself for the prosecution by making a conditional plea agreement to induce the defendant’s waivers of fundamental constitutional rights through unilateral or negotiated promisesto strike or dismiss findings or charges, or to sentence below thestatutorily-authorized minimum forall the charges and allegations. The absence of express “bargaining”or “threats” does not convert into an indicated sentence a plea agreementin violation of 12 statute and Orin. Defendant’s argumentthat Woosley, supra, 184 Cal.App.4th 1136 should be “overruled” lacks merit. Thetrial court’s promise tostrike the prior strike conviction as consideration for the plea agreement wasalso prohibited by the Three Strikes law (§§ 667(g), 1170.12(e).) A unilateral judicial promise to dismiss a strike as inducement for an admission of a properly charged allegation and consideration for an agreement to plead to other proper charges impermissibly invades the prosecutor’s powers to negotiate conditional plea agreements and comeswithin section 1192.7(b). The Three Strikes plea bargaining restriction impingesno legitimate sentencing authority under Orin. On closer consideration, we withdraw the argument madein the Court of Appeal that an indicated sentence is per se inconsistent with a trial court’s statement that a defendant may withdraw plea of guilty or no contest if it decides not to impose asentence. The matter is fact dependent and ordinarily rests in the trial court’s purview to determinethe interests of justice. (See People v. Williams (1998) 17 Cal.4th 148, 164, fn. 7 (Williams).) This court need not decide the remedyif a trial court disapprovesa properindicated sentence. Defendant was given no indicated sentence, did not confronta trial court’s disapproval of one, was not rebuffed trying to withdraw pleas, and will not need permission to withdraw pleas on remand as they mustbe vacated. The substantial increase in presentence conduct credits was beyond the trial court’s power. (People v. Lara (2012) 54 Cal.4th 896 (Lara.) The inducement was impropereven as an indicated sentence. The unauthorized sentence can beraised as an independentclaim onthis appeal and requires correction because it improperly reducesthe total time defendant serves in prison. 13 ARGUMENT I... A TRIAL COURT’S OFFER OF A DISMISSAL OF FINDINGS AND A SPECIFIED SENTENCE ON CONDITION OF AND IN EXCHANGE FOR A PLEA OF GUILTY OR NO CONTESTIS A JUDICIAL PLEA BARGAIN, NOT AN INDICATED SENTENCE Judicial plea bargaining without the consent of the prosecution contravenesstatute and is an act in excessofthe trial court’s jurisdiction. (Turner, supra, 34 Cal.4th at p. 418; Labora, supra, 190 Cal.App.4th at pp. 913, 914; see §§ 1192.5 &1192.7(b).) The court cannotviolate the statute and exceedits jurisdiction, whetherit does so under the guise of “agreeing” 912 to a plea bargain or of giving an “indicated sentence. A. The Trial Court’s Exchange of Promised Sentencing Leniency for Defendant’s Waivers Violates Section 1192.5 and Constitutes an Improper Inducementof the Defendant’s Pleas 1. Thetrial court substituted itself for the prosecutor by making a conditional plea agreementin violation of section 1192.5 and Orin California’s legislative scheme (§§ 1192.1-1192.5) “contemplates a district attorney negotiating with the accused andthetrial judge approving or disapproving the ultimate agreement.” (Un re Lewallen, supra, 23 Cal.3d at pp. 280-281.) Bystatute, “a trial judge is precluded from offering an accused in return for a guilty plea a more lenient sentence than he would imposeafter trial.” (/d. at p. 281, citing § 1192.5; Felmann, supra, 59 Cal.App.3d at p. 276.) “(T]he process of plea negotiation “contemplates an agreement negotiated by the People and the defendant and approved by the court. (§§ '? Nothingin this brief should be taken as implied approvalofrules in other jurisdictions that forbid the involvement ofjudgesin plea negotiations. (See People v. Jensen (1992) 4 Cal.App.4th 978, 984.) 14 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604— 608.) Pursuant to this procedure the defendant agrees to plead guilty [or no contest] in order to obtain a reciprocal benefit, generally consisting ofa less severe punishment than that which could result if he were convicted of all | offenses charged. (People v. West, supra, 3 Cal.3d at p. 604.) This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People’s acceptance ofa plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or kind (People v. West, supra, 3 Cal.3d at p. 608), or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information. Judicial approval 1s an essential condition precedentto the effectivenessof the “bargain” worked out by the defense and prosecution. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West, supra, 3 Cal.3d at pp. 607-608.) 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 oneside, the defendant represented by his counsel on the other—which bargaining results in an agreement between | them. (See People v. West, supra, 3 Cal.3d at pp. 604-605.)’” (People v. Segura (2008) 44 Cal.4th 921, 929-930 (Segura), quoting Orin, supra, 13 Cal.3d at pp 942-943, first brackets added.) | Section 1192.5 does not distinguish clement punishment exchanged for pleas “to the sheet” from pleas to fewer charges. Nor doesstatute authorize judicial promises of lenient dispositions, over the prosecution’s objection, where the court’s consideration for the pleas is “secured in part.. . by the .. . dismissal of one or more”priorstrike convictions, or current offenses. (Segura, supra, 44 Cal.4th at p. 930.) Pretrial dismissal of charges under section 1385 has been used to effectuate plea bargains between the People and the defense when approved by the court. (Orin, supra, 13 Cal.3d at p. 946.) The People’s statutory 15 authority is to negotiate sentencing leniency. Their “legitimate interest in the fair prosecution of crimes properly alleged” undergirded Orin’s holding that the trial court cannot arrange a “package disposition” of the charges against a defendant, over the People’s objection, by invoking section 1385 to dismiss charges in order to induce a defendant’s plea of guilty to another charge. (/d. at pp. 947-948;see id. at p. 949 [“{T]he net effect of the dismissal was to preclude the prosecution and possible conviction of defendant for two offenses simply because he waswilling to plead guilty to a third, all three offenses having been properly charged”’].) The court “clarified in Orin that only the prosecutoris authorized to negotiate a plea agreement on behalf of the state. “‘[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and underthe 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 ofthe 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 maybeintimidated by the judge's participation in the matter.’ [Citation.]” (Segura, supra, 44 Cal4th at p. 930, quoting Orin, supra, 13 Cal.3d at p. 943.) That the trial court in Orin did not accept pleas to “the sheet” before dismissing counts wasnotthe basis for this court’s overturning the plea agreement there. Nor wasthe basis for that decision a “negotiation” by the trial court with the defense. No decision by this court holds thata trial court may make an agreement with the defendant, over the prosecution’s objection, for the purpose of inducing pleas “to the sheet,” by promising to ~ dismiss properly charged parts of an accusatory pleading and to sentence 16 below the statutory-minimum forall charged offenses and allegations. Nor does any statute sanction that procedure. | Assuming inherent powerexists to give indicated sentences,“inherent powers should neverbe exercised in such a mannerasto nullify existing legislation or frustrate legitimate legislative policy.” (People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 528.) . 2. Judicial plea bargains underminethe plea bargaining system Orin condemnsthetrial court’s substituting itself as the representative of the People in the negotiation process, particularly through unilateral offers of section 1385 dismissals merely for the purpose of inducingpleas. Prosecutorial control over the proffer of conditional plea agreements ensures an efficient and equitable system of plea bargaining. (See Jn re Alvernaz, supra, 2 Cal.4th at p. 933.) “[A] prosecutor should remain free beforetrial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. Aninitial decision should not freeze future conduct [because] the initial charges filed by a prosecutor maynotreflect the extent to which an individualis legitimately subject to prosecution.” (People v. Michaels (2002) 28 Cal.4th 486, 514-515, quoting People v. Edwards (1991) 54 Cal.3d 787, 828, internal quotation marks omitted and brackets in Michaels; see also People v. Jurado (2006) 38 Cal.4th 72, 98 [holding no presumption of vindictiveness applies to plea bargaining by prosecutor]; United States v. Goodwin (1982) 457 US. 368, 378, fn. 10 [explaining plea bargaining’s legitimacyin termsofthe necessity for inducing guilty pleas through the prosecutor’s exclusive powerto bring and increase charges]: People v. Rivera (1981) 127 Cal.App.3d 136, 146-148 [recognizing prosecutorial leverage in plea bargaining avoids systematic overcharging].) 17 Byits conditional plea agreement,the trial court preempted the prosecutor’s “broad discretion . . . to determinethe extentof the societal interest in prosecution.” (Michaels, supra, 28 Cal.4th at p. 515, internal quotation marks omitted.) That societal interest is legislatively “heightened ... in the prosecution of moreserious crimes.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019.) Conversely, “no weight whatsoever may be given to factors extrinsic to the [legislative] scheme, such as the mere desire ‘to ease court congestion... .” (Williams, supra, 17 Cal.4th at p. 161, citing Romero, supra, at p. 531.) 3. Judicial promises of leniency given to induce a defendant’s waiver or forfeiture of fundamental constitutional rights imperil the conviction Defendant is sanguine regarding judicial inducements for guilty pleas. (RBOM 16.) This court’s plea bargain jurisprudenceis not. (Orin, supra, 13 Cal.3d at p. 943.) “A court may not offer any inducementin return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoeshis right to trial or more harshly because he exercisesthat right.” (In re Lewallen, supra, 23 Cal.3d at pp. 278-279, quoting Felmann, supra, 59 Cal.App.3dat p. 276.) The court has explained that promising leniency _ to a defendant for refraining from the exercise of fundamental constitutionalrights “has been rejected, whetherits source is executive, legislative, or judicial in nature.” (See People v. Collins (2001) 26 Cal.4th | 297, 309, 306 (Collins).) “The impropriety ofa trial court’s explicit promise of morelenient treatment in sentencing if the defendant waives [such rights] is comparable to the impropriety of harsher treatment imposed because of the defendant’s having invokedhis orherright to trial by jury.” (Id. at p. 307 [analogizing inducementofjury-trial waiver by indicating unspecified “benefits” of waiver to Lewallen, where defendant punished for 18 refusing a plea negotiation].) A trial court that formally fulfills procedural requirements for assuring a knowing and voluntary waiverofa right, as did the trial court below,“while announcing its intention to bestow some form of benefit in exchange for defendant’s waiverof that fundamental constitutional right, act[s] in a mannerthat[is] at odds with its judicial obligation to remain neutral and detached in evaluating the voluntariness of the waiver.” (/d. at p. 309.) “Theform ofthe trial court’s negotiation with defendant present[s] a ‘substantial danger of unintentional coercion.’” (Ibid., quoting Orin, supra, 13 Cal.3d at p. 943, italics added.)”” 4. Thetrial court’s role in approving a conditional plea agreement is compromised by judicial plea bargaining “Tf the court does not believe the agreed-upon disposition 1s fair, the court ‘need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the 999consentofboth parties.’” (Segura, 44 Cal.4th at p. 931 quoting Peoplev. Godfrey (1978) 81 Cal.App.3d 896, 903.) Thus, a trial court’s “‘approvalis an essential condition precedent to any plea bargain’ negotiated by the '? Where the court’s promises induce the waiverofa rightthat, by itself, is not subject to its negotiation, the waiver is involuntary and due process violated. (Collins, supra, 26 Cal.4th at pp. 309, 311-312 [holding improper inducementof a jury-trial waivera structural defect]; cf. People v. Dixon(2007) 153 Cal.App.4th 985, 993-994 [improper promise found not to have inducedjury-trial waiver].) That is true even though,as this court said in Collins, the state through a plea bargain negotiated by the prosecutor, “‘may encouragea guilty plea, and thereby obtain a waiver of those samerights, by offering substantial benefits in return for the plea,’ which may obtain for the defendant‘the possibility or certainty .. . [not only of] a lesser penalty than the sentence that could be imposedaftera trial and a verdict of guilty...’ [citation], but also of a lesser penalty than that required to be imposed after a guilty verdict by a jury.” (Collins, supra, at p. 309, fn. 4, quoting Corbitt v. New Jersey (1978) 439 U.S. 212, 218-220, internal quotation marks omitted, brackets andellipses in Collins.) 19 prosecution and the defense, anda plea bargain is ineffective unless and until it is approved by the court.” (Alvernaz, supra, 2 Cal.4th at p. 941.) In exercising their discretion to approve or reject proposedplea bargains, trial courts are charged with the protection and promotion ofthe public’s interest in vigorous prosecution of the accused, imposition of appropriate punishment, and protection of victims of crimes.” (/bid.) Hence,a plea agreement betweenthe parties does not “bind trial court which is required to weigh the presentence report and exercise its customary sentencing discretion.” (People v. Kaanehe (1977) 19 Cal.3d 1, 14.) A trial court making its own conditional plea agreement for sentencing leniency does not weigh a probation officer’s report or exercise “customary sentencing discretion”as it does when deciding to approve or reject a bargain negotiated by the parties. The court alters its customary sentencing discretion by limiting its available powers through the inducementoffered for the waivers of constitutional rights and the pleas, which “detract[s] from the judge's ability to remain detached and neutral in evaluating the... fairness of the bargain to society as well as to the defendant.” (Orin, supra, 13 Cal.3d at p. 943.). As shown post,the evils described in Orin manifest themselvesin this case. B. The Record Establishes a Judicial Plea Bargain Thetrial court induced defendant’s pleas and admissions withits promise of the dismissal ofa strike and a sentence below the minimum two-strike sentence for conviction on all charges. Defendant accepted the court’s offer to exchange his pleas and admissions in a package disposition _ to obtain the reciprocal benefit of a less severe punishment than would result were he convictedaftertrial. Thetrial court offered a plea agreement at a sentence discount “somewhat less than the going disposition at a trial department.” (1 RT 7.) The court’s consideration was its promise to dismissa prior strike and to 20 imposea five-year prison sentence. (1 RT 4, 9; 2 RT 59.) The promised sentence wasrepresented to defendant as one below thelegislative minimum applicable to findings on all charges and allegations. (1 RT 16, 17.) The court conditioned its leniency on the “plea agreement” offered in the defendant’s cases sent to theERC. (1 RT 3-4, 7, 9.) Those promises were made pursuant to the court’s assignmentto settle as many casesasit can throughits discussions with counsel and to sentence in accord withits plea agreements. Its offer, as the majority and dissent below tacitly agreed, was unavailable after a trial or even beforetrial outside the ERC. (1 RT 4-5; 2 RT 55, 62.) Thetrial court’s package disposition was a sentence offer below the statutory minimum. (1 RT 17; 2 RT 56.) It mooted bargaining over the longer sentence tendered by the prosecutor. (2 RT 59.) Its promises directly induced defendant’s early pleas. (1 RT 7, 16, 17.) This conditional plea agreement rested on the court’s promised leniency exchangedfor the defendant’s constitutional waivers and pleas. Thatthetrial court took pleas to all charges before dismissing thepriorstrike fails to distinguish the plead-to-one-dismiss-another package disposition overturned in Orin. Orin’s rule is against dismissing properly chargedparts of an accusatory pleading as a reciprocal benefit merely to induce a guilty plea to another proper charge. It is functionally identical to this case, where the plea agreement promised sentencing leniency onfindingsleft after a promised dismissal of another finding. If there is a difference from Orin,it is that the trial court here specified a sentence thatit informed the defendant was lower than the “going disposition” (1 RT 6-7)—the sentence available to the defendant if he were not to waivehis rights and wassentto the trial department as a consequenceofthat decision. Orin accurately predicted that “it would frustrate the orderly and effective operation of our criminal procedure as envisioned by the 21 Legislature if without proper and adequate reason section 1385 were used to terminate the prosecution of defendants for crimes properly charged in accordance with legal procedure.” (Orin, supra, 13 Cal.3dat p. 947.) Today,as then, a trial court may not “frustrate the legitimate prosecution of a defendant by arranging a ‘package disposition’ of the charges against him over the People's objection.” (Jbid.) C. The Trial Court’s Ruling and the Dissent’s View of an Indicated Sentence Are Meritless 1. Trial court’s ruling The trial court justified its plea agreement withits historical practices. The dissent incorrectly found its reasoning irrelevant. In stating that | prosecutors attend ERCdiscussions and had consentedto earlier plea agreements there (2 RT 58, 60), the trial court was confusedasto the law. Prosecutorial participation in settlement discussions is obligatory in this state. (Bryce v. Superior Court (1988) 205 Cal.App.3d 671, 672.) And an indicated sentence requires no prosecutorial consent. (People v. Turner, | supra, 34 Cal.4th at pp. 418-419.) Consent by the prosecutor to a plea agreementis characteristic of a conditional plea bargain negotiated by the parties (§ 1192.5), not an indicated sentence. There was no consent to the court’s offer or its plea agreement here. (1 RT 4-5.) Thetrial court signaled a judicial plea bargain in its ruling. It said it did not impose a sentence underits plea agreements when an “additional factor” appeared “weighty enough”that “it allowed the court to set aside the plea,”a situation that “would requirethis court to set aside the plea because ofnew information... .” (2 RT 59-60.) Thatis, the trial court views new facts of sufficient weight a condition to reassertion ofits ordinary sentencing powers after a defendant acceptsits plea agreements. Yet, new facts are not neededto reject an indicated sentence any more than they are to disapprove a plea bargain. (See Segura, supra, 44 Cal.4th at p. 22 930 [trial court may reject a plea bargain whenit believesit is not “fair”]; cf. §§ 1018 [defendant must show good cause for court to grant permission to withdraw plea of guilty or no contest]; 1192.5 [a conditional plea agreed to by the parties is ineffectual unless approved by the court; statute contains no requirement of good cause or new facts neededfortrial court’s disapproval].) The trial court’s practice is explicable only if approvalofits offered inducementis implicit when the defendantpleads in reliance thereon, rendering the plea agreement nonrescindable absent good cause, which the defendant hasno incentive to show. Thetrial court also found an indicated sentence becauseit considered the five-year sentence informed andfair. (2 RT 58-59.) Nothing in the record reflects the prosecutor’s tendered offer of an eight- or nine-year sentence was not also informed and fair. A trial court no less abuses discretion by offering a plea bargain that preempts a range of presumptively fair sentencing outcomesas by offering one that doesnot. The dangers ofjudicial plea bargains appearin the trial court’s actions and in its ruling. Improper judicial inducements inject extraneous considerations into the duty ofa trial court to consider impartially whether to approve or disapprove sentencing commitments and leave the court open to charges of coercion. Once agreed to by defendant, the court’s offer effectively moots plea bargaining between a prosecutor and defense counsel. Here, the court offered a term less than half the minimum authorized by conviction on all charges in the complaints, andat least three years less than the eight- or nine-year sentence tendered by the prosecutor. It is impossible, on this record, to know if the defense was prepared to negotiate with the prosecutorto try to better the offer of eight or nine years. The court’s plea agreement removedthe incentive of defense counselto try. Defendant’s real incentive, if one existed, was to horse trade with the court to try to sweeten the deal. 23 2. The dissent below The latter point undermines the argument, madebythe dissent below and largely embraced by defendanthere, that a court’s promissory offer sufficient to inducepleastoall chargesis an indicated sentence, so long as the record does not show thetrial court was talked into changingits initial sentence offer by defense counsel, or actively negotiated the sentence with defense counsel, or threatened the defendant with a longer sentence after trial. (Since the threat of a longer sentence is implicit in ERC plea offers, the dissent obviously meantoral threats.) But the sheer fact plea negotiations betweenthe trial court and defense counsel can, and usually are, cabined off the record is hardly the totem of an indicated sentence the dissent makes of it. Considering the battles that were required to bring plea bargaining into the open,it would be ironic, to confer blessings on | “negotiations” squirreled behind curtains and to denounce what seeps onto the record. The dissent’s preferenceis for a rule that keeps “bargaining” off the record. That rule might lurch alongif all parties were estopped from attacking guilty pleas that rest, in any degree, on unreported discussions. But there is no prospect ofthat. As Orin reflects, judicial plea bargains are condemned onthe offered consideration of sentencing leniency exchanged for waivers of fundamental constitutional rights. Orin overturned a judicial plea bargain on a record with no references to dickering or negotiation. The offered agreement and the prosecutor’s objection were made off the record at a settlement discussion and were then repeated at the plea hearing, as here. (See 13 Cal.3d at pp. 940-941, 948.) That is how an ERC operates, notas a trial or sentencing or dismissal calendar, but as a change-of-plea calendar to induce pleas. No points are awarded under Orin for proffered leniency by the trial court so enticing it immediately induces a defendant’s pleas and makes superfluousbarter or threats by anyone, this defendant included. 24 D. The Court’s Plea Agreement Rests, in Significant Part, on Illusory Consideration Defendant entered pleas under a representation the striking of the strike would substantially increase his presentence conductcredits. (See fns. 5 & 7, ante.) That was incorrect, a matter addressed in argument V, post. More problematic is that “[t]he [trial] court awards such credits at the time of sentencing (§ 2900.5), not as an exercise of discretion, but based on the sheriff's report of” the number of days the defendant was in presentence custody. (Lara, supra, 54 Cal.4th at p. 903.) Becausethetrial court had no discretion over the award of presentence conduct credits, defendant’s pleas rest on offered consideration beyond the court’s powerto negotiate. (See ibid.) Il. THE TRIAL COURT’S PLEA AGREEMENT WITH DEFENDANT WAS NOT A PERMISSIBLE INDICATED SENTENCE Defendant mixes various themes into his apparent definition of indicating sentencing as a trial court’s offer of a conditional plea agreement, including dismissals and specifiedsentences, to induce a package disposition ofall charges. Generally, defendant asserts the People simply are not aggrieved by such plea agreements. We confront the more prominent of these themes before addressing the central issue. A. . Defendant’s Polemic on Standing, Gaming, Consent, . and Best Possible Results Is Unsupported by Authority 1. Standing Defendantasserts the Court of Appeal misconstrued the Felmann’s dicta about indicated sentencing and Lewallen. He claimsthose decisions only proscribe coercing a defendant’s waiver ofa jury trial because of that waiver,1.e., offering more lenient treatment than the defendant would have received, in defendant’s words, “but for his waiverofhis right to a jury trial.” (RBOM 16.) But that eccentric reading of the cases might assist him 25 only if “indicated sentencing”actually is, in law, a synonym for judicial plea bargaining. Defendantentered his pleas to all chargesafter thetrial court declared its offer was given on the “understanding”ofthe parties that cases settled in the ERC are for somewhatless than the going disposition in the trial department. (1 RT 6-7.) Defendant necessarily entered his waivers and pleas onthetrial court’s expressed understanding of its package disposition—an offer that but for defendant’s waivers and pleas im the ERC, he would not get “more lenient treatment than he otherwise would have received.” (Felmann, supra, 59 Cal.App.3d at p. 277.) Even the dissent below acknowledged: “[A] true indicated sentenceis not conditioned on a defendant’s change of plea (in substance,‘ifyou plead guilty to all charges, I will imposea’ specified sentence) ....” (DO 16,fn. 16.) Yet, defendant and the dissent agree whatthetrial court said, all things considered,is not the sameastelling defendant“in substance, ‘if you plead guilty to all charges, I will impose a’ specified sentence.” (/bid.) What to make of such malleable substance is a mystery. Moreclear is defendant’s misreading ofLewallen and Felmann. Far from holding coercion of a jury-trial waiver the only improper inducement of a guilty plea, Lewallen cited section 1192.5 and Felmannfor the principle that “atrial judge is precluded from offering an accused in return for a guilty plea a more lenient sentence than he would imposeaftertrial.” (Lewallen, supra, 23 Cal.3dat p. 281, citing Falmann, supra, 59 Cal.App. 31 at p. 276.) That is this case. Defendantalso cites Collins, supra, 26 Cal.4th at page 307, for his idea that a “guilty plea is improperly ‘induced’ only whenthe court has coerced a waiverofa rightto a jurytrial,” from which he infers a | prosecutorlacks “standing” to oppose an indicated sentence on the ground the court coerced the defendant. He then declares a discussion of “inducement” “academic” because any error only “affects the interests of 26 another party.” (RBOM 16-17.) Collins did not involve a guilty plea and did not hint at the permissibility ofjudicial offers condemned in Lewallen. Neither Collins, nor defendant’s curious notion ofjury-trial-waiver coercion as the singular improper inducementof guilty pleas, bears conceivable relation to “standing” by the People. Defendantalso asserts a prosecutor can only complain if “the record showsthat the court has clearly engaged in negotiating the length of the sentence,” as in Labora, supra, 190 Cal.App.4th at pages 915-916 that defendant cites by example. (RBOM 17.) ArgumentI, ante, addresses the fallacy of the dissent that presumably inspires this argument. Judicial promises inducing guilty plea that rest on impermissible or illusory promises of leniency violate statute and detract from the plea bargaining system aside from therisk of coerced pleas. The People have standing to challenge indicated sentences. Argument HI, post, details Williams, supra, 17 Cal.4th 148, a People’s appeal under Romero. There, this court accepted the People’s argumentthat thetrial court’s illusory inducement by an improperindication of the appropriatenessofstriking strikes allowed withdrawal of a guilty plea. (id. at pp. 164-165 & fn. 7.) Romero, like Orin, holds judicial plea agreements reviewable on timely objection by the prosecutor, because “society, represented by the People, has a legitimate interest in the fair prosecution of crimes properly alleged.” (Romero, supra, 13 Cal.4th at p. 531, internal quotation marks omitted.) Defendant has never claimed the charges were improperly alleged or that the objections by the prosecutor were untimely. 2. Gaming the system Seeking to legitimize, or at least mitigate, the trial court’s actions (RBOM 9-10), defendant quotes Orin’s discussion (13 Cal.3d at p. 949) of what hecalls thetrial judge’s power“to deal with the prosecutor’s obdurate refusal to settle a case” (RBOM 9-10). Defendant says Orin “foretold” the indicated sentencing concept as “invaluable in clearing the court’s calendar 27 whenthe prosecutorrefuses to be reasonable.” (RBOM 14.) Presumably to suggest an “obdurate refusal to settle” or at least a refusal to be “reasonable,” defendant claims the prosecutor below tried to “game the system”by seeking “to veto the court’s informed sentencing judgment in order to seek a more favorable result from a different judge,” and asserts “Tt]his type of forum shopping”is “inconsistent with California law,” citing People v. Traylor (2009) 46 Cal.4th 1205, 1213. (RBOM 20.) Defendant does notcite the record, nor notes Traylor discussed section 1387’s protection against “forum shopping” by repeated dismissal and refiling of identical charges. We do not assumehis untethered argumentimplies facts outside the record or section 1387’s relevance. Presumably, healludes to the prosecutor’s requests to the trial court to send the cases to the department in which the preliminary hearing wasset (1 RT 4) and to reconsiderits plea agreement (2 RT 31). Neither was an .“obdurate refusal to settle” or attempted “veto” of anything. They were part and parcel of the prosecutor’s objection to the plea agreement. Defendant’s amuse boucheis the more the prosecution objects to a judicial plea bargain, the more it proves an indicated sentence. The record showsa prosecutor’s bargaining offer of a sentence undercutby the court’s plea offer of a lower sentence, not forum shopping.'* (2 RT 55-56.) Nor did Orin ordain or foretell judicial plea agreements as a solution whenprosecutors refuse consent to those agreements. This court said “rigid prosecutorial policies manifesting an obstructionist position toward all plea bargaining irrespective of the circumstances of the individual case,” ‘* That is not to say forum shoppingis unassociated with indicated sentencing. There is no rule against defense counsel discussing the “worth” of a client’s case with more than one judge. Reduced forum shoppingis a beneficial result of precluding promisesor offers like that given by the trial court below. 28 that is, an “automatic refusal of prosecutors to consider plea bargaining as a viable alternative to a lengthytrial,” may be alleviated “of this can be accomplished by meansof a permissible exercise ofjudicial sentencing discretion in an appropriate case.” (13 Cal.3d at p. 949.) Pursuing his gaming theme, defendantsaysit is telling the prosecutor did not appeal the dismissal of the strike as sentencing error and used “the backdoor methodofclaimingthat the trial court somehow engagedin plea bargaining.” (RBOM 21.) Defendant does not explain how the People’s choice of appellate claims “games the system” of indicated sentencing, how backdoorclaims announceto him on appeal differently from frontdoor claims, or how thetells he gathers from the People’s briefs are assessed in determiningifa trial court offers an indicated sentenceor an illegal plea bargain. Instead, he gives assurancesthetrial court “acted in goodfaith and with the goal of efficiently administering justice.” (/bid.) Werethis a game, andit is not, the only tell would be defendant’s juxtaposing thetrial court’s sincerity (which we do not doubt, but which is notest ofits actions) against his demonstrable preference for arguments the People do not make. 3. No prosecutorial consent is needed for indicated sentences when defendantpleads “to the sheet” Defendant cites footnote 6 ofPeople v. Freyrer (2010) 48 Cal.4th 426, 434. There, the court quoted Turner: “A trial court may provide the defendant an ‘indicated sentence’ if he or she pleads guilty or no contest to all charges and admitsall allegations. (People v. Turner[, supra,] 34 Cal.4th [at p.] 419.) When ‘the defendant pleads “guilty to all charges... so all that remains is the pronouncement ofjudgment and sentencing” [citation], “there is no requirementthat the People consentto a guilty plea. [Citation.]”’ (Ud. at pp. 418-419.)” (See RBOM5, 11, 13.) Freyrer distinguishedthe plea to all charges in that case from an indicated sentence, finding an actual plea bargain “in whichthe trial court gave its approval to 29 the parties’ agreementrather than unilaterally negotiating a permissible agreement with defendant.” (48 Cal.4th at p. 434, fn. 6.) That a court can give an indicated sentence without a prosecutor’s consent if a defendant “pleads to the sheet” begs the question of distinguishing a permissible indicated sentence from unlawful judicial plea bargaining. 4, Thefallacy that this is the best result possible for the prosecution Defendant asserts an indicated sentence means the prosecutor “has achievedthe best result possible.” (RBOM 6.) “Insofar as the defendantis foundliable for everything alleged by the prosecutor, the People have no grievancethat the court has intrudedinto the prosecutorial domain.” (RBOM 11.) “The prosecutor suffered no harm in this case since [defendant] admitted each and everyallegation against him.” (RBOM 13.) | First, judicial promises to dismiss findings and to grant leniency below the statutory minimum term invade the People’s interest in securing higher authorized punishment through plea bargaining. The prosecutoris prevented from addingto or subtracting from the initial charges, or from offering less lenient sentencing concessions, oncethe trial court, in the vernacular, “takes the case away.” The difference between a preempted party-bargained sentence andthe judicially-promised sentence usually is widest for early pleas to “the sheet,” when the defendant can “charge” the trial court premiums for package dispositions. Second, defendant’s no-harm no-foul argumentis old wine in a new bottle. In Orin, defendant arguedthe trial court deferred makinga final disposition until it read the probation report and wasentitled to take into account its sentencing practices and determine the dismissed charges would not significantly affect his sentence. (13 Cal.3d at p. 950.) This court answered that defendantfailed to distinguish case law removing the case from proper sentencing discretion, namely, making a package disposition 30 for more lenient treatment, over the prosecutor’s objection, as exchange for -a plea, rather than on a showingit wasin the interests ofjustice. Additionally, defendant did not grapple with “the unavoidable fact” that he had avoided the higher term he would receive if convicted on all charges under existing punishmentstatutes, ignoring his speculation about thetrial court’s sentencing practices. (/d. at pp. 947, 950.) Similarly, this record shows“the unavoidable fact” that the court induced defendant’s pleas in a package disposition by a promised dismissal. Defendant received more lenient treatment than a two-strike conviction allowed, ignoring speculation aboutthe trial court’s sentencing practices. B. A Conditional Plea Agreement for Sentencing Leniency by the Trial Court Cannot Be Sustained as an Indicated Sentence Based on Expedient Inducementof Pleas “to the Sheet” The defendant in Turner, a capital case, accepted a plea agreementin whichthetrial court “offered to sentence defendantto life withoutthe possibility of parole in exchange for defendant's admission ofhis intent to kill the” victims. (Turner, supra, 34 Cal.4th at p. 416.) The prosecutor objected, but the trial court found “that the prosecutor abusedits discretion in objecting to the court's offer and concludedthat it could proceed with the offer pursuant to section 1385,” (/bid.) This court upheld mandamusto vacate whatit declared was “an illegal plea bargain.” (/d. at p. 418.) “TTThe trial court negotiated an agreement with defendant whereby defendant agreed to admit that he intended to kill the victims and, in exchange,the court agreed to sentence defendant to LWOP—rather than death. In doing so, the court entered into a plea bargain, which required the consentof the prosecutor.” (/bid, citing Orin, supra, 13 Cal.3d at p. 943.) This court also rejected Turner’s argument that an indicated sentence wasestablished by a plea to all charges. (A capital penalty trial cannot be waived over objection of the prosecution.) In the course of that discussion, 31 the court explained, with conciseness, that an indicated sentence ofa trial court is “‘what sentence[it] will imposeif a given set of facts is confirmed, irrespective of whether guilt is adjudicatedat trial or admitted by plea.”” (Turner, supra, 34 Cal.4th at p. 419, quoting People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 915-916.) The sentencethat is indicated applies irrespective of any pleas. It is not to save court time, but represents the trial court’s application of the law (its ordinary sentencing discretion) to assumed facts (as explained in the indication bythetrial judge in Felmann itself, see 59 Cal.App.3d at page 274). That element is what prevents an indicated sentence from invading the prosecutor’s negotiating authority, and the trial court from becoming the bargainer. A sentence dependent upon trial court’s promise to dismissfindings, when exchangedas consideration for the defendant’s guilty pleas to the charges in the form of a conditional plea agreement, excludesthat element. Recall that the trial court cannot proceed, without the consent of both parties, by inducing a plea through a promise or commitmenttorestrict its sentencing powers, as in a conditional plea agreementofthe parties, without running afoul of section 1192.5 and Orin. For that reason, a true sentence indication cannot require the consent of either the defendantor the prosecution: it is not a conditional plea. It cannot take the form of an offer of promissory consideration for pleas, © otherwise, a court could restrict its sentencing powers withoutthe parties’ consent simply to induce waivers of the defendant’s constitutional rights, includinga partial or complete “indicated dismissal,” as it were. The plea bargaining system, by default, would be a unilateral judicial function. The prosecutor’s incentive would be to charge from the outset all possible crimescarrying the highest sentences, and detriment to defendants and the judicial system alike would follow, as discussed in Orin. 32 Thetrial court below never stated the sentence it “will impose irrespective of whether guilt is adjudicatedat trial or admitted by plea.” (Turner, supra, 34 Cal.4th at p. 419, internal quotation marks omitted.) It promised the sentence it would not imposeif guilt was adjudicatedattrial. It gave defendant express assurances of promissory leniency, including a reduced sentence and a dismissal of a finding, in exchangefor his pleas (1 RT 4-5, 16, 17.) Thetrial court, therefore, acted inconsistentwith Orin and section 1192.5. Its plea agreement cannotbe sustainedas an indicated sentence. C. Defendant’s View of Indicated Sentencing as Unreported Judicial Bargaining for Pleas “to the Sheet” Is Unpersuasive Defendantsays challenges to indicated sentencing by prosecutors must be rejected “unless it clearly appears that the court has engaged in negotiations with the defendant.” (RBOM 18.) He claims an indicated sentence is established here. Why? Because, putting all else aside, thetrial court said, retrospectively at sentencing, that it “intended to give an ‘indicated sentence’ (2 RT 58)”andthatits offer at the time was “premised on a full understandingof the relevant facts.” (RBOM 19.)'° Defendant represents this as applying the principle that “[t]he choice of wordsis not determinative.” (RBOM 18, citing Ramos, supra, 235 Cal.App.3dat p. 1266, fn. 2.) In reality, for defendant and the dissent below,the trial court’s choice of wordsis very determinative. (But see Orin, supra, 13 Cal.3d at p. ' Actually, the trial court admittedit did not think “we discussed the losses that were involved. ... I don’t have any notes on that. And I don’t have a clear recollection, but I sort of have gotten off track here.” (2 RT 58.) Shortly afterward,it said, “[T]here is nothing new that the court did not know back in August 18th when I madethe offer, that would require this court to set aside the plea because ofnew information that I didn’t know at the time.” (2 RT 60-61, italics added.) Werefer the court to ArgumentI.C.1., ante. 33 942 [“[NJotwithstanding 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 and weare nothere presented with any issue ofthe existence,validity or effect of any plea bargain”].) Defendant seeks for the trial court the prosecutor’s power to negotiate (off the record) conditional plea agreements to dismiss charges under section 1385 and to imposea specified sentence on less than all findings— so long as the court offered sufficient leniency to induce a defendantto plead “to the sheet,” or, as in defendant’s case, to all sheets. That makes Orin a deadletter, even though defendant says, substance controls over form. (RBOM 5, 33.) Section 1192.5 itself, and conceivably sections 1191.1 and 1191.2 on charge bargains, would be deadletters too, suitable only for the odd occasion where a trial court, for whatever reason, wears only robes and not also the prosecutor’shat. Defendantinsists that as a “simple matter ofreality, there will be no plea absent the proffered sentence” (RBOM 13) by the court, as the indication procedureis “invaluable in clearing the court’s calendar” _(RBOM 14).. He meansit is invaluable to defense attorneys in off-the- record discussions to relay the court’s offer and whatit will take for the defendant to changehisplea to guilty, knowing thetrial court can utter the words “indicated sentencing” if a prosecutor, a crime victim, or a reviewing court questions the plea agreement. His in terrorem seeminglyinspiring his expurgated hypothetical (RBOM 14)'°—thatprosecutors are wontto refuse '© He leaves out from his hypothetical the promise required by the trial court to strike the strikes to be able to offer probation to this three- strike-charged ailing bandit. Defendant also seems to assumethere is no basis for a plea bargain with the prosecutor, though it is not clear why that would be so, since defendant’s description of the case seems to imply a successful Romero motion is a certainty. Yet, if probation is certain, the (continued...) 34 bargains to the hopelessly incriminated, who then meaninglessly insist on meaninglesstrials, which causes indicated sentencingto fall into _ desuetude—is outlandish. Before and after Fe/mann, countless legal practitioners have bargained cases weak or strong with each other, not with a judge. Defendant maysee indicated sentencing as Romerorelief without burdensomelitigation. But there was, in addition to the plea litigation, substantial Romerolitigation in his case too. The prosecutor submitted numerousadditional facts (CT 45-51.) Predictably, the bargain was not rescinded. Defendant does not establish the operative necessity for his exigency exception to rules against judicial plea bargaining, andcertainly notits efficiency. D. Woolsey Is a Correct Statement of Law Defendant argues that the court should “overrule” Woolsey, supra, 184 Cal.App.4th 1136. (RBOM 25.) He acknowledgesthat the Court of Appealdid notrest its judgment on that decision, but nonetheless asserts that the case was wrongly decided as stated by the dissent. (RBOM 26.) Woolsey held that inducing the defendant to plead guilty to all counts and admit the charged enhancement, by promising, over the prosecutor's objection, to dismiss an enhancement and impose an agreed-upon sentence is an unlawful judicial plea bargain. (Woolsey, supra, 184 Cal.App.4th at p. 1140.) Impliedly criticizing People v. Vessell (1995) 36 Cal.App.4th 285, 296, a case following Ramoscited by defendant (RBOM 28), the court in Woolsey reasoned that pleading guilty to all charges does not expose the defendant to a sentence and judgment on chargesthetrial court has to (...continued) bandit has no reason to annoythetrial judge with a pointless demand for trial. There is no need for any plea agreement—the bandit can just plead. The whole point of the scenario is obscure. Plea bargaining is insurance against the uncertain, not the certain. 35 dismiss in order to impose its promised sentence. (184 Cal.App.4th at pp. 1146-1147.) “Even though section 1385 givesthe trial court discretion to dismiss ‘an action’ in the interests ofjustice, the anticipatory commitment by the court to exercise that discretion to dismiss the enhancement cannot be usedto negate therole of the prosecutor.... [§] By defendant’s reasoning, the trial court could agree to dismiss anyorall of charges or enhancements, pursuant to section 1385, in exchange for a defendant’s guilty plea on all the charges and enhancements. Such a practice is within neither the spirit nor the letter of state law as summarized in Orin.” (Id. at p. 1147.) Woolsey is consistent with Turner’s definition of an indicated sentence. Ill. IT IS UNNECESSARY TO DECIDE IF A DEFENDANT MAY WITHDRAW PLEASIF THE TRIAL COURT REJECTS AN INDICATED SENTENCE Defendantargues “whena trial court offers an indicated sentence,it must advise the defendant that he will have the opportunity to withdraw his plea if the court later determinesthat it is unable to impose the indicated sentence.” (RBOM 21, style altered.) The trial court gave no such admonition, but it did accepta stipulation to a factual basis for the pleas. (1 RT 18.) The admonition and factual basis requirements come from the third paragraph of section 1192.5. That paragraphis “only for negotiated pleas specifying the punishment to be imposed.” (§ 1192.5; People v. Hoffard (1995) 10 Cal.4th 1170, 1174.) It applies to “the conditional plea made pursuantto the first paragraph and accepted and approved pursuantto the second paragraph,” where “the prosecution offers substantially reduced punishment in exchangefor a plea of guilty or no contest.” (/d. at pp. 1181-1182.) No admonition was required since no conditionalplea under section 1192.5 was submitted to or approvedbythetrial court. 36 Defendant seeks endorsementofdicta at page 276 ofFelmann,that the defendant has “the option of going to trial” if an indicated sentenceis not imposed, and he observes subsequent Court of Appeal decisions recognize such a practice in trial courts. (RBOM 22, 25.) Healso asserts due process demandsthe opportunity to withdraw a guilty plea. (RBOM 23.) Echoing the dissent below, he predicts “very few defendants will plead guilty without some assurancethat their interests will be protected if the indicated sentence is not imposed.” (RBOM 23-24.) Heasserts the People should “bear a heavy burden to establish why Felmann should be overruled at this late date.” (RBOM 22,italics added.) On further consideration, we withdraw our argumentin the Court of Appeal (Ct.App. AOB 11) that a trial court’s statementthat the defendant will be allowed to withdraw a plea if a sentence is not imposed is characteristic ofjudicial plea bargaining and removesthe possibility that a plea resulted from an indicated sentence. Instead, the issue concerns the withdrawal of pleas under section 1018, and the answer will vary with the circumstances ofthe case. © In Williams, supra, 17 Cal.4th 148,the court found limit to the usual rule that anticipated leniency is unenforceable by the defendant through the withdrawal of a guilty plea, not as a constitutional right, butin the interests ofjustice. There, the defendant admitted strike priors with no promises in an open plea after the trial court indicated the case would be appropriate for a two-strike sentence. (/d. at p. 156.) On the Attorney General’s suggestion, this court found remedially inadequate the Court of Appeal’s reversalofthe trial court’s sua sponte order vacating its finding ofa prior serious felony conviction on the People’s meritorious appeal under Romero, and that Williams should be allowed to withdraw his guilty plea. (Id. at pp. 164-165.) This court said “[w]hether to grant or deny a defendant permission to withdraw a plea of guilty must be decidedintheinterest of 37 promoting justice” under People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796-797; the People conceded thetrial court’s inappropriate sentence indication of its willingness to strike the prior conviction 999 allegation was a “‘powerful inducement” for the guilty plea with admissions; “this was in fact not an ‘appropriate caseto strike a prior’”as the trial court had said, and Williams “should not have been subjected to its influence’; and, accordingly,“‘in the interest of promoting justice (ibid.) he should be allowed to return to the status quo ante by withdrawinghis plea of guilty with admissions, should he so choose” (id. at pp. 164-165, & fn. 7). The dissent for three justices recognized “in light of the comments madebythe judge before defendantentered his plea, that this may bea case in which the usualrule disfavoring withdrawal of a plea solely because anticipated leniency was not forthcoming should not be applied.” (Williams, supra, 17 Cal.4th at p. 168 (conc. & dis. opn. of Baxter, J).) The court debated no constitutional principle, but the wayto identify cases as exceptions to the usualrule against plea withdrawalfor frustrated hopes of leniency in the context of an unlawful sentence indication. The dissent suggested a defendant bears the burden ofestablishing to the trial court’s satisfaction that an improperindication is the factual inducementforthe plea and goodcause for plea withdrawal (§ 1018). The dissent suggested the majority, in essence, had heldthat, as a matter of law, comments about a court’s inclinations regarding sentence induce the plea, which a defendant may withdraw if the anticipated sentence is not imposed, usurping thetrial court’s role in exercising discretion in the interests ofjustice in the first instance. (See id. at pp. 166-169 (conc. & dis. opn. of Baxter, J).) - This case requires no decision on whether, or how, Williams’s interests-of-justice exception to the rule disfavoring withdrawal ofa plea for misplaced hopes of leniency applies if a trial court properly rejects an 38 indicated sentence on fuller consideration at sentencing. Defendant’s problem is keeping his pleas, not deciding whether to withdraw them. The trial court’s illusory consideration increasing defendant’s presentence conductcredits was itself a powerful inducementfor the pleas and was not within the court’s discretionary sentencing power. Even werethetrial court’s offered plea agreementan indicated sentence, that inducement was one that it should not have given. Because that inducementresulted in clear prejudice to the People by reducing defendant’s time in prison, the judgment of the Court of Appeal vacating the pleas must be affirmed. (See Williams, supra, 17 Cal.4th at pp. 164-165,fn. 7.) IV. THE THREE STRIKES LAW PROHIBITED THE TRIAL COURT FROM OFFERING TO STRIKE THE PRIOR SERIOUS FELONY CONVICTION AS INDUCEMENTFOR THE PLEAS Addressing an issue discussed only bythe dissent, defendant claims the Three Strikes law (§§ 667(g) and 1170.12(e)) does not prohibit trial court from offering dismissal of a prior strike as the inducementfor pleas and admissions to the charges. (RBOM 30.) Wedisagree. Under Romeroandsection 1385, “the sentence that is actually imposed underthe Three Strikes law is frequently dependent uponthetrial court’s exercise of discretion in determining whether, in furtherance of justice, to strike any ofthe serious or violent prior convictions that have been charged by the prosecutor and, if so, how manyprior convictions to strike.” (Un re Coley(2012) Cal4th —,_——s« [2012 WL 3764526 *23].) However,judicial discretion to dismiss a charge or allegation may be eliminated by the Legislature even without an express reference to section 1385. (Romero, supra, 13 Cal.4th at pp. 518-519; People v. Thomas (1992) 4 Cal.4th 206, 211; see also In re Greg F. (2012) Cal4th =, _—_—s- [2012 WL 3641512 *20,fn. 3] (dis. opn. of Cantil-Sakauye, C.J.).) 39 The Three Strikes prohibition at issue is more limited. It precludes using a prior strike in “plea bargaining.” Defendantarguesit is “doubtful” the law applies to judges as the law mentionsonly the prosecution. (RBOM 30-31.) He ignoresthe first sentence ofthe law, which expressly incorporates the definition of “plea bargaining” in section 1192.7(b). It plainly includes judicial plea bargaining. (Ludwig, supra, 174 Cal.App.3d at pp. 475-476.) Whenthe languageofa statute is plain and unambiguous, there is no need for a court to construe the statute or to determine the intent of the Legislature. (People v. Zambia (2011) 51 Cal.4th 965, 972.) In arguing the law was probably not intended to refer to an indicated sentence (RBOM 31-33), defendant repeats his claim that an indicationwas involved in this case. His argumentthetrial court did not “use”thestrike, just took his “admission that the prior was true” (RBOM 32), doesnot affect the statute’s plain meaningin theslightest. Defendant also argues there is a separation of powers issue because the Three Strikes law eliminates indicated sentences. (RBOM 34-35.) But the law does not do that. “Judges must be as vigilant to preserve from judicial encroachmentthose powers constitutionally committed to the executive as theyare to preserve their own constitutional powers from infringement by the coordinate branches of government.” (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 262.) Noting People v. Smith (1975) 53 Cal.App.3d 655, Greer recognizeda trial court’s unlawful plea bargain over the prosecution’s objection is a separation of powers issue a court meets by judicial “enforce[ment of] the allocation to the executive of the function of determining which personsare to be charged with what criminal offenses.” (/d. at pp. 262-263 andsee id. at p. 267 [“[T]he prosecutor's discretionary functions are not confined to the period before the filing of charges,” but extend to the powerto negotiate plea bargains].) Whenthecourt errs by entering into an unlawful plea bargain 40 over the prosecutor’s objection, rather than giving an indicated sentence, “the prosecution [does] not violate any separation of powerprinciples or improperly interfere with the court's power to impose a lawful sentence.” (People v. Turner, supra, 34 Cal.4th at p. 419.) Defendant argues the Legislature (and the People by initiative) are compelling trial court to undertake “a useless jury trial.” (RBOM 36.) To the contrary, they are compelling plea bargaining withoutstrikes as chips. That is wholly consistent with Orin. Defendant makes no showingthe legislation defeats or materially impairs constitutional functionsoftrial courts. (See Peoplev. Bunn (2002) 27 Cal.4th 1, 16.) A “defendant has no right to be offered a plea [bargain],” nor “a federal right that the judge acceptit.” (Frye, supra, 566 US.at p.__ [132 S.Ct. at p. 1410]; see also Weatherford v. Bursey (1977) 429 U.S. 545, 561.) Judicial plea bargains are“‘very different from the give-and-take negotiation commonin plea bargaining between the prosecution and defense, which arguably possessrelatively equal bargaining power.’” (Bordenkircher v. Hayes (1978) 434 U.S. 357, 362, quoting Parker v. North Carolina (1970) 397 U.S. 790, 809 (dis. opn. of Brennan,J.).) Thetrial court has exclusive sentencing authority. If a given negotiated outcomeis inappropriate, the trial court can reject the bargain and exercise ordinary sentencing discretion when and if convictions ensue. It has no need to make its own bargain. That is whatthetrial court did, and the pleas cannot stand. V. ALTERNATIVELY, IF DEFENDANT’S PLEAS STAND, THE TRIAL , COURT SHOULD BE DIRECTED TO VACATE ITS AWARD OF ADDITIONAL PRESENTENCE CREDITS UNDER SECTION 4019 Thetrial court awarded day-for-day presentence conductcredit of 236 days for time spent on offenses committed in March 2010. It based the - award on its dismissal ofthe prior strike and on the subsequently vacated 4] decision in People v. Jones, review granted Dec. 15, 2010, S187135. (1 RT 18-19, 2 RT 63-64; see CT 18-19, 128, 180.) Trial courts lack discretion to dismiss or strike prior serious felony convictions undersection 1385 in order to award additional presentence conductcredits under the former version of section 4019 to any prisoner who was required to register as a sex offender (see § 290 et seq.), was committed for a serious felony (see § 1192.7), or, like defendant, had a prior conviction for a serious or violent felony (see §§ 667.5, 1192.7). (Lara, supra, 54 Cal.4th at p. 899, see former § 4019, subds. (b)(2), (c)(2) & (f), as amendedby Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Lara held that striking a prior conviction allegation does not authorize “award[ing] credits at the increased rate to a categorically disqualified prisoner by ignoring the disqualifying facts” (Lara, supra, 54 Cal.4th at p. 899); rather, the conviction remainsa part of the defendant’s prior criminal history and is “available for other sentencing purposes” (id. at p. 906). Lara upheld the trial court’s denial of one-for-one conductcredits, notwithstanding a negotiated disposition in which the court struck the allegation of a prior strike, because the credit-limiting facts did not have to be formally pled and proved. (/d. at pp. 900, 907.) Thestriking of the allegation in Larais indistinguishable from the striking of the finding here. (Lara, supra, 54 Cal.4th at p. 907 & fn. 10 [credit limitations in former section 4109 operate “without reference to whether any enhancementhas been foundtrue”].) As in Lara, defendant committed his crimes after the January 25, 2010, legislative increase of the rate at which prisonersin local custody could earn conductcredits. (See Lara, supra, 54 Cal.4th at p. 899, citing former § 4019, subds. (b)(1), (c)(1) & (f).) The later amendmentto section 4019 under the 2011 Realignment Legislation that now authorizes day-for-day credits for local prisoners . without regard to a prisoner’s prior convictions does not apply to thoselike 42 defendantin local custody for crimes committed before October 1, 2011. (§ 4019, subd. (h); Lara, supra, at p. 906, fn. 9; see People v. Brown (2012) 54 Cal.4th 314, 322, fn. 11, & 328-329.) Either party mayraise an erroneouscalculation of presentence conduct credits as an unauthorized sentence on an appealof otherissues. (People vy. Duran a 998) 67 Cal.App.4th 267, 270 [issue properly raised by eeethe People on defendant’s appeal from the judgment].) “‘[L]egal error resulting in an unauthorized sentence commonly occurs wherethe court violates mandatory provisions governing the length of confinement.’” (People vy. Nasalga (1996) 12 Cal.4th 784, 789, fn. 4, quoting People v. Scott (1994) 9 Cal.4th 331, 354, brackets original.) Accordingly,if defendant’s no contest pleas are reinstated, the trial court must vacate its order granting presentence conductcredits and recalculate credits consistent with Lara. ‘CONCLUSION _ Accordingly, appellant respectfully requests that the judgmentof the Court of Appeal be affirmed. 43 Dated: September 10, 2012 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General ERIC D. SHARE Supervising Deputy Attorney General ML. LAURENCE K. SULLIVAN Supervising Deputy Attorney General Attorneysfor Plaintiffand Appellant SF2012204255 20619833.doc 44 CERTIFICATE OF COMPLIANCE I certify that the attached APPELLANT’S ANSWER BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 13,904 words. ‘Dated: September 10,2012 KAMALA D. HARRIS Attorney General of California (onAKL LAURENCEK. SULLIVAN Supervising Deputy Attorney General Attorneysfor Plaintiffand Appellant DECLARATION OF SERVICE BY U.S. MAIL Case Name: People vy. Wesley Cian Clancey No.: S200158 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On September 10, 2012, I served the attached APPELLANT’S ANSWERBRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Dallas Sacher Attn: Executive Director Assistant Director Sixth District Appellate Program Sixth District Appellate Program 100 North Winchester Blvd., Suite 310 100 North Winchester Blvd., Suite 310 Santa Clara, CA 95050 Santa Clara, CA 95050 (2 copies) County of Santa Clara Criminal Division - Hall of Justice Sixth Appellate District Superior Court of California Court of Appeal of the State of California Attention: Criminal Clerk's Office 333 West Santa Clara Street, Suite 1060 191 North First Street San Jose, CA 95113 San Jose, CA 95113-1090 The Honorable Jeffrey F. Rosen District Attorney Santa Clara County District Attorney's Office 70 W. HeddingStreet San Jose, CA 95110 I declare under penalty of perjury underthe laws of the State of California the foregoing is true and correct and that this declaration was executed on September 10, 2012, at San Francisco, California. . Tan Nguyen | Lna(04 Alfeton Declarant Siggature/ SF2012204255 20636662.doc