Filed 1/9/20 P. v. Garza CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant,

v.

ANTHONY GARZA,

Defendant and Respondent.

E071927

(Super.Ct.No. INF1601917)

OPINION

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Reversed.

Michael A. Hestrin, District Attorney, Natlie M. Lough, Deputy District Attorney, for Plaintiff and Appellant.

Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Respondent.

Over the prosecution’s objection, defendant and respondent Anthony Garza pled guilty to one count of first degree murder (Pen. Code, § 187, count 1), and he admitted that he personally and intentionally discharged a firearm and proximately caused great bodily injury and death (§§ 12022.53, subd. (d) & 1192.7, subd. (c)(8).) In return, a trial court sentenced him to 25 years to life on count 1 and struck the firearm enhancement.

The People appeal, contending that the trial court engaged in unlawful judicial plea bargaining, and, in any event, the court abused its discretion in dismissing the firearm enhancement, pursuant to section 1385. We agree.

FACTUAL BACKGROUND

C.D. lived at her mother’s residence and stayed in the garage. Defendant also stayed in the garage and slept in the same bed with her. The victim would come over to the house and occasionally spend the night on the sofa in the garage. On December 20, 2016, C.D., defendant, and the victim were doing drugs in the garage. Eventually, C.D. went to bed. When she was lying on the bed, she observed defendant and the victim start to fight. C.D. saw defendant hit the victim in the face and push him down on the couch. Then defendant shot him with a gun. The victim’s body stayed in the garage for about one and one-half days.

C.D.’s son discovered the victim’s dead body behind the house and called the police. Police officers responded to the scene and saw a body wrapped in a blanket. They went to the garage and observed a lounge chair with fresh blood on it. An officer found a pair of jeans behind the bathroom door. He checked the jeans and found a plastic bag in the pocket containing .22-caliber ammunition. The police also found a black shirt with blood on it in the laundry room, as well as a gun hidden under some blankets on the bed.

The police interviewed C.D.’s brother, who said he assisted defendant in moving the victim’s body from the garage to the backyard. He also identified the gun involved in the incident as one he had seen in defendant’s possession prior to the incident. The officer interviewed C.D. and asked if she tried to stop defendant from shooting the victim. She said she tried to stop him, but defendant just shot him.

A coroner subsequently examined the victim’s body and observed that there were four gunshots sustained in his face and head.

ANALYSIS

I. The Court Engaged in Unlawful Judicial Plea Bargaining

The People argue that the trial court engaged in unlawful judicial plea bargaining on the second day of trial, when it bargained with defendant to reach a negotiated disposition, in order to prevent the case from proceeding to trial. Defendant claims the appeal should be dismissed because the People are appealing from a nonexistent order. He also argues the court did not engage in unlawful plea bargaining, but rather gave an indicated sentence at the change of plea hearing and later exercised its discretion at the sentencing hearing to dismiss the firearm enhancement under section 1385. We agree with the People.

A. Procedural Background

Defendant was charged by information with first degree murder. (§ 187.) The information also alleged that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury and death. (§§ 12022.53, subd. (d) & 1192.7, subd. (c)(8).) He initially pled not guilty.

On October 10, 2018, trial by jury commenced. The following day, after several chamber conferences on the first and second day of trial, defendant agreed to plead guilty, with the understanding that the court would sentence him to 25 years to life and strike the firearm enhancement, over the People’s objection. Prior to the taking of the plea, the prosecutor had the following discussion with the court:

“[Prosecutor]: I wanted to make the record clear. We have had several chambers conversations yesterday and also this morning. [¶] Yesterday, the court threw out several numbers asking the People to accept 35 to life, striking the 12022.53(d) enhancement, and adding a 12022.53(c) instead. [¶] The court made reference to the People accepting a 40-years-to-life offer yesterday, and again this morning.

“THE COURT: Right. This morning the defense offered 40 to life against 50 to life.

“[Prosecutor]: And when the People did not accept that is when the court said, ‘Fine, then I’ll strike the gun enhancement and give him 25 to life.’

“THE COURT: Right.

“[Prosecutor]: Based upon that, the People would ask that the court make that a part of the record. [¶] And also I would ask the court to indicate the reasons why the court will be striking the [firearm enhancement], for the record.

“THE COURT: Well, again, this morning I said, ‘40 to life is available to you. The defense has offered that to reduce it to a second, plus a gun.’ [¶] I can’t reduce it to a second. So I can’t arrive at 40 to life on a plea to the court. [¶] You said, ‘No.’ No, you would not accept 40 to life. [¶] So I told you the only thing that I can do to work out a disposition is to strike the gun and give 25 to life. [¶] You have a slam dunk case. However, your percipient witness is presently 1368 . . . . You still have the victim’s DNA on the defendant’s pants. You have the gun. You have the shells that match the gun at the autopsy. You have an admission early on, years ago. [¶] . . . [¶] This was at a drug house in . . . a garage. I assume both the defendant and the victim were drug users. So I felt that 25 to life is an appropriate sentence since you wouldn’t take to [sic] 40 to life against a possible 50 to life after trial.

“[Prosecutor]: It’s the People’s position that the Court’s indicated is to resolve this matter rather than go to trial.

“THE COURT: Yes. I think that is an appropriate sentence for a 28-year-old individual.

“[Prosecutor]: The court has not dealt with the issues that the defendant shot the victim four times in the face while he was falling asleep in an armchair. [¶] If anyone deserves a 12022.53(d), it’s this defendant.

“THE COURT: Anything else?

“[Prosecutor]: No.”

Defendant then filled out the plea agreement. The court addressed defendant and said it was going to sentence him to 25 years to life and proceeded to take his plea. Defense counsel stipulated to the preliminary hearing transcript as the factual basis for the plea. The prosecutor reiterated her objection to the court striking the firearm enhancement. The plea agreement stated that defendant would enter a guilty plea to the first degree murder charge and section 12022.53, subdivision (d) firearm enhancement, conditioned on him receiving a term of 25 years to life and the court “strik[ing] the firearm allegation.” The plea agreement was signed by defendant and his counsel. The prosecutor did not sign it.

The prosecutor subsequently requested a probation report prior to sentencing, since defendant was going to state prison. She noted that a probation report detailing the circumstances surrounding the offense and defendant’s criminal history was required to be sent to the Department of Corrections and Rehabilitation. The court ordered an expedited report.

On November 8, 2018, the court held the sentencing hearing. At the outset, the prosecutor informed the court that there were victim impact statements. The court allowed the witnesses to speak, including the victim’s sister and mother. The victim’s mother asked the court for justice—for defendant to serve the maximum penalty—and noted that her son was only 19 years old. The court asked the mother if she had been told what the sentence would be, and then informed her that it would be 25 years to life, and that defendant would have to serve “20-some years” before he could apply for release. The court explained that the maximum punishment for the charge was 25 years to life, plus another 25 years to life for the use of the gun. However, the court stated it was not going to impose any additional punishment for the gun use. When the victim’s mother asked why not, the court said it thought it would be justice for both her son and defendant to not impose additional punishment for the gun use. The court stated that defendant was young and had a minimal criminal history. It added that if her son had been murdered without a gun, “he still would have passed” and “[her] pain would be the same,” and the sentence would be 25 years to life.

The court went on to comment on the potential evidence that would have been presented at trial, including its assessment that C.D. was not a reliable witness. The court told the victim’s mother that defendant admitted guilt early on and offered to plead guilty to murder and admit he used a gun if he could get 40 years to life, but the prosecutor wanted to submit the case to a jury and try to get 50 years to life. The court stated, “She did have a good case. Probably would have prevailed, but a jury trial is always . . . a gamble.” The court explained that when the prosecutor turned down the offer by defendant to plead guilty for a term of 40 years to life, it could not give him that sentence, but the only sentence it could give him was the 25 years to life. The court stated: “I just had to make a decision on what would be . . . justice. So—and I’m thinking if your son had been killed by any other method, the sentence would be the same, your pain and suffering would be the same, your loss, missing your son, not being able to talk to your son, it would all be the same with or without a gun.”

After the court’s discussion with the victim’s mother concluded, the prosecutor asked to be heard. She stated that, in view of the court’s comments and its comments prior to the plea on October 11, the court “very clearly has indicated that there is overwhelming evidence of the defendant’s guilt.” She added that the court wanted the People to resolve the case for 40 years to life; however, “[i]n response to the People not accepting the offer of 40 to life, the Court decided to strike the gun enhancement to get to the only sentence that the Court could do so, which was 25 years to life. The Court indicated that it could not make this case a second degree murder to give the defendant 40 to life, only the People could do that, so the Court decided to strike the gun enhancement.” The prosecutor explained that the court used the striking of the gun enhancement to resolve the case short of trial. However, the court was required to make a finding “in the interest of justice” in order to strike the gun enhancement. The prosecutor argued that the interest of justice would not be served by the court striking the gun enhancement, since this was “a cold-blooded, premeditated murder of a vulnerable victim, unsuspecting, who was sleeping in an armchair, unarmed.” The prosecutor also noted defendant’s lack of remorse and callous attitude toward his crime.

The court addressed the prosecutor, noting she refused to take a 40-year sentence and stating: “I don’t know what your reasoning was, maybe you needed this trial to get a promotion, I don’t know. But you were intractable, and your case was not—not without risk because of the intoxication, because of the eyewitness, you were going to go ahead and put on additional DNA evidence that proved what? That there was a fight and blood spatter? Or that there was a gunshot? We don’t know. But you were willing to take that risk rather than get a sentence where he could potentially do life. I thought that justice would be better served by ensuring that he would be in prison for a very long time, if not for the majority of his life, rather than risk you taking it to a jury and taking a gamble.”

The court went on to sentence defendant to 25 years to life on the murder conviction. It also sentenced him to 25 years to life on the firearm enhancement, but ordered that term stricken, at its discretion. The court then ordered the gun used in the murder to be destroyed. However, the prosecutor asked the court to stay the order on the destruction of the gun, pending the People’s decision whether to appeal the court’s decision. The court agreed to stay the order.

The People timely filed this appeal from the order striking the section 12022.53, subdivision (d) gun enhancement.

B. Standard of Review

“We review allegations of judicial plea bargaining for abuse of discretion. This is because we may void the act of a trial court that is ‘in excess of the trial court’s jurisdiction’ [citation], and ‘ “judicial plea bargaining in contravention of existing law are acts in excess of a court’s ‘jurisdiction’ ” [Citation.]” (People v. Labora (2010) 190 Cal.App.4th 907, 914 (Labora).)

C. The People May Appeal

At the outset, defendant points out the People’s notice of appeal states the appeal is taken from the order striking the firearm enhancement; however, the court’s actual order struck the additional 25-year-to-life term on the firearm enhancement. In other words, the court did not enter an order striking the firearm enhancement; rather, it struck the additional term on the enhancement. Thus, he reasons that the People’s appeal should be dismissed since it is based on a nonexistent order. Defendant appears to be making a semantics argument. Moreover, the People may appeal “an order made after judgment, affecting the substantial rights of the people” as well as “an order or judgment dismissing or otherwise terminating all or any portion of the action.” (§ 1238, subd. (a)(5) & (a)(8).) Thus, the People may appeal the court’s order.

Moreover, we note that the court appears to have imposed an unlawful sentence. The People may appeal from the imposition of an unlawful sentence. (§ 1238, subd. (a)(10).) As used in section 1238, subdivision (a)(10), “unlawful sentence” means “the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.” Here, it was alleged that defendant personally and intentionally discharged a firearm in the commission of the murder (§ 1192.7, subd. (c)(23)) and, thus, his case was ineligible for plea bargaining under section 1192.7, subdivision (a)(2) [“Plea bargaining in any case in which the . . . information charges any serious felony [or] any felony in which it is alleged that a firearm was personally used by the defendant . . . is prohibited, unless there is insufficient evidence to prove the people’s case . . . .”]. Accordingly, if judicial plea bargaining occurred, the sentence would be unlawful. (Labora, supra, 190 Cal.App.4th at p. 913.)

D. The Court Improperly Engaged in Plea Bargaining

“Plea bargaining” is statutorily defined as “any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.” (§ 1192.7, subd. (b).)

Pursuant to the process of plea bargaining, “the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the People’s acceptance of a plea to a lesser offense than that charged, either in degree [citations] or kind [citation], or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the ‘bargain’ worked out by the defense and prosecution. [Citations.] But implicit in all of this is a process of ‘bargaining’ between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them.” (People v. Orin (1975) 13 Cal.3d 937, 942-943 (Orin).)

“[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor’s consent to the proposed disposition, [and] would detract from the judge’s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, . . .” (Orin, supra, 13 Cal.3d at p 943, fn. omitted.) A discussion between a criminal defendant and a judge that produces the defendant’s agreement to plead guilty, in exchange for a sentencing commitment by the judge is a judicial plea bargain. (§ 1192.7, subd. (b).)

Here, the parties had several conversations off the record, in chambers. However, the prosecutor made sure to put what occurred on the record. The record indicates that, on the second day of trial, defendant attempted to bargain with the prosecutor and offered to plead guilty to second degree murder and admit the firearm enhancement, for a term of 40 years to life. The prosecutor declined the offer, choosing instead to continue with the jury trial. However, despite its recognition that the People had “a slam dunk case” in view of the evidence of defendant’s guilt, the court wanted the People to resolve the case for 40 years to life. When the prosecutor declined to accept defendant’s offer, the court decided to strike the gun enhancement. The court stated to the prosecutor: “I told you the only thing that I can do to work out a disposition is to strike the gun and give 25 to life.” In other words, the court admitted it could not reduce the charge to second degree murder to give defendant 40 years to life, so it decided to strike the gun enhancement and give 25 years to life. The court expressly stated to the prosecutor: “I felt that 25 to life [was] an appropriate sentence since you wouldn’t take [] 40 to life against a possible 50 to life after trial.” The record clearly demonstrates that, on its own, the court decided to “work out a disposition,” and somehow determined that justice would be served by not imposing the additional 25 years to life for the firearm enhancement. In doing so, the trial court improperly substituted itself as the representative of the People in the negotiation process and agreed to a disposition of the case with defendant, over prosecutorial objection. (Orin, supra, 13 Cal.3d at p. 943.) Pursuant to the plea agreement, which stated that the court would “strike the firearm allegation,” defendant obtained an assurance from the judge relating to sentencing. Accordingly, defendant’s sentence was the product of improper judicial plea bargaining. (See Labora, supra¸190 Cal.App.4th at p. 916.)

Defendant boldly claims that the People are “totally misinterpret[ing]” the record of what the trial judge did. He argues the trial court did not engage in plea bargaining, but merely provided an indicated sentence at the time of the change of plea. It then exercised its discretion under section 1385 to strike the punishment on the firearm enhancement at the sentencing hearing. The record belies this claim.

“When giving an ‘indicated sentence,’ the trial court simply informs a defendant ‘what sentence he will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea.’ [Citations.] An accused retains the right to reject the proposed sentence and go to trial. The sentencing court may withdraw from the ‘indicated sentence’ if the factual predicate thereof is disproved.” (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271.) “An indicated sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made.” (People v. Delgado (1993) 16 Cal.App.4th 551, 555 (Delgado).) Defendant claims the trial court gave him an indicated sentence of 25 years to life. However, as the court admitted at the time, that sentence could be imposed only if it struck the firearm enhancement. Therefore, defendant signed a written plea agreement stating that his guilty plea was conditioned on the court’s promise “to strike the firearm allegation” and sentence him to 25 years to life. The promise to strike the firearm allegation was a material part of the plea arrangement. Moreover, the court’s comments during the change of plea hearing reflected a commitment to imposing 25 years to life, regardless of subsequent facts, evidence, or arguments. The court told the prosecutor, “I told you the only thing that I can do to work out a disposition is to strike the gun and give 25 to life,” and “I felt that 25 to life is an appropriate sentence since you wouldn’t take [] 40 to life against a possible 50 to life after trial.” Since the terms of the plea agreement made clear the court was guaranteeing it would strike the firearm enhancement and sentence defendant to a total term of 25 years to life, the court was not giving an indicated sentence. (See Delgado, supra, 16 Cal.App.4th at p. 554.)

In light of the circumstances and the words used by the court, we conclude that what occurred here was judicial plea bargaining.

II. The Court Abused its Discretion Under Section 1385

Defendant claims that the court properly exercised its discretion at the sentencing hearing and dismissed the firearm enhancement punishment in furtherance of justice, under section 1385. He asserts that the court properly stated its reasons for striking the punishment, including that defendant was fairly young and had no significant criminal history, and that the crime occurred at a drug house and both defendant and the victim were alleged to have been drinking and doing drugs all day. We conclude the court abused its discretion.

First, as outlined ante, the court had clearly already determined at the change of plea hearing that defendant would receive a total sentence of 25 years to life. (See Ante, § I.) Thus, the court’s purported reasons for striking the 25-year-to-life punishment prescribed by section 12022.53, subdivision (d), appear to be a facade for the plea agreement it previously made with defendant.

Second, assuming arguendo the court did exercise its discretion under section 1385 in striking the punishment, its comments at the sentencing hearing reveal its decision was arbitrary and capricious. When the court was explaining to the victim’s mother why it was not going to impose the punishment on the firearm enhancement, it focused on the inherent risk in every jury trial that a jury will not “get[] it right.” However, these comments show that the court was trying to justify why it reached a plea agreement with defendant. The court also told her that if her son had been killed by any other method, aside from the use of a gun, “the sentence would be the same, your pain and suffering would be the same, your loss, missing your son, not being able to talk to your son, it would all be the same with or without a gun.” The court appeared to be rationalizing how it could essentially ignore defendant’s use of a gun and its attendant enhancement punishment. Furthermore, the court expressly told the victim’s mother that when the prosecutor turned down defendant’s offer to plead guilty to murder and use of a firearm for a term of 40 years to life, it “just had to make a decision on what would be . . . justice.” This statement was consistent with the court’s earlier statement to the prosecutor at the change of plea hearing: “I felt that 25 to life is an appropriate sentence since you wouldn’t take [] 40 to life against a possible 50 to life after trial.”

In addition, we note the comments by the prosecutor and the court before sentencing. The prosecutor asserted that the court wanted the People to resolve the case for 40 years to life, but when she did not accept defendant’s offer, the court responded by striking the gun enhancement. After the prosecutor stated that the court used the striking of the gun enhancement to resolve the case short of trial, rather than making a finding in the interest of justice, the court appeared to become angry, and stated: “You refused to take a 40-year sentence. [¶] I don’t know what your reasoning was, maybe you needed this trial to get a promotion, I don’t know. But you were intractable . . . you were willing to take that risk rather than get a sentence where he could potentially do life. I thought that justice would be better served by ensuring that he would be in prison for a very long time, . . . rather than risk you taking it to a jury and taking a gamble.” These comments reveal a complete abuse of discretion. The court’s rationale for striking the firearm enhancement focused on the prosecutor’s failure to accept defendant’s offer to plead guilty to second degree murder and admit the firearm enhancement, in exchange for a 40-year-to life sentence, and on the court’s apparent decision that the case should not go to trial.

In sum, the trial court improperly negotiated an agreement with defendant whereby he agreed to plead guilty to first degree murder and admit the firearm allegation and, in exchange, the court agreed to sentence him to 25 years to life, rather than 50 years to life. In doing so, the court entered into a plea bargain, without the consent of the prosecutor. (See Orin, supra, 13 Cal.3d at p. 942.) Because the prosecutor objected, the court exceeded its jurisdiction. Therefore, we vacate the judgment and sentence. (People v. Turner (2004) 34 Cal.4th 406, 418.)

DISPOSITION

The judgment is reversed, and the matter remanded to the trial court with directions to vacate defendant’s plea and reinstate the original charge and enhancement.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.