Filed 12/18/19 P. v. Ensminger CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT FRANKLIN ENSMINGER,

Defendant and Appellant.

G056680

(Super. Ct. No. 15HF0356)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Remanded with directions.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Robert Franklin Ensminger was sentenced to a low term of two years for a drug offense, doubled to four years, based on his admission he had suffered a prior strike conviction. Ensminger contends the trial court committed a sentencing error because his admission of prior strike convictions was based on an agreement the prior strike convictions would not be used in sentencing. Ensminger requests this court remand the matter with directions to the sentencing court to strike the prior strike convictions and otherwise comply with the terms of the plea agreement. The Attorney General argues there was no plea agreement, but concedes there was a sentencing error because Ensminger was not provided an opportunity to withdraw his admission. Alternatively, the Attorney General argues if there was a plea agreement, the agreement should be rescinded and the parties allowed to renegotiate. For the reasons stated below, we will remand the matter to the court to determine whether there was a plea agreement and to conduct any further proceedings consistent with the court’s determination.

I

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Ensminger of various drug-related offenses. Following the jury’s verdict, the trial judge and the parties discussed a “global resolution” of the charges in the instant case and in two other cases.

Thereafter, on June 22, 2017, Ensminger completed a form waiving his right to a jury trial on the prior conviction allegations and admitting he suffered numerous prior convictions (admission form). On the admission form, Ensminger acknowledged that his prior drug convictions could expose him to a three-year enhancement under Health and Safety Code section 11370.2, subdivision (c). He also handwrote his admissions would have the following effect on his sentence: his prior strike convictions would be stricken under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385, subdivision (c), and his prior prison term enhancements would be stricken for sentencing purposes.

At the court trial on the priors, the trial court conducted a colloquy confirming Ensminger’s waiver of his relevant constitutional rights and his admission he suffered the alleged prior convictions. The court then proceeded to sentencing. It stated: “I’ve discussed this case with counsel and indicated to counsel that the court intends to remove the strikes and sentence the defendant to the low term on count 1 with an additional year of time based on one of his prior convictions . . .” Asked to comment on the indicated sentence, the district attorney stated “the People were requesting a five-year sentence on this case,” although he acknowledged “the court . . . has indicated a different sentence . . .” Defense counsel commented that the parties had “talked about what the ultimate sentence would be that would be appropriate on this.” Counsel noted the parties discussed a “low term plus a prison prior, and then structuring potentially the sentences of the others – the two open matters consecutively. We left off with what would have been a six-year max.” Counsel stated Ensminger hoped “the court would give him low term of two years on his possession case, not impose a prior, then impose the consecutive time of one year eight months, eight months, eight months, for a total of three on top of the two to get us back to the original of five [years].”

The court responded: “I understand this is a global resolution that – the sentenced proposed on [the instant case] would be different if it was being sentenced by itself. And it is, as I understand, being sentenced along with two other matters. And if – if the defendant enters guilty pleas on those two other matters, the court’s indicated sentence is to sentence the defendant to three years consecutive on [the other case] for a total sentence of six years. [¶] . . . When it comes to the sentence on [the instant case], the sentence will be three years that the court indicated to counsel in chambers.” The court then took the guilty pleas on the other matters, and continued sentencing on the instant matter.

The following day, defense counsel informed the court Ensminger wanted to accept the “option the court provided in which he could do two years on the [other case] concurrent to the five-year sentence that he was going to get on the [instant case.].” The district attorney did not object to this resolution. The court struck Ensminger’s strikes and prior prison term enhancements. It sentenced him to five years in prison, consisting of the low term of two years on count 1, plus a consecutive three-year term on one of the Health and Safety Code section 11370.2, subdivision (c) enhancements.

After Ensminger appealed, this court reversed the Health and Safety Code section 11370.2, subdivision (c), enhancements because, effective January 1, 2018, those enhancements were repealed if they were based on prior convictions for violations of Health and Safety Code sections 11378 and 11379, subdivision (a). Although we acknowledged the parties disputed whether striking the enhancements would alter the global resolution of Ensminger’s three cases, we declined to resolve the issue and remanded the case to the trial court for a “full resentencing hearing.”

On July 27, 2018, the trial court conducted a resentencing hearing. It found the guilty pleas in the other matters were “based on an offer to resolve the whole case for five years.” The court asked for options to approximate that same five-year sentence. During the ensuing discussions, the court expressed concern that imposing a new five-year sentence would result in a longer prison term than the original sentence because of changes in the law on parole eligibility and custody credits. The court imposed one of Ensminger’s prior strike convictions, and sentenced him to four years in prison, consisting of the low term of two years, doubled due to the strike.

II

DISCUSSION

The parties agree the trial court erred in imposing one of Ensminger’s prior strike convictions, although they arrive at this conclusion in different ways. According to Ensminger, he admitted the prior convictions based on a “plea agreement” that the strikes would be stricken. The court’s imposition of the strike violated the “bounds of the plea agreement.”

According to the Attorney General, there was no plea agreement. Rather, the trial court had indicated it would strike the prior strike convictions if Ensminger admitted them. When the court failed to follow through on the indicated sentence, Ensminger should have been afforded an opportunity to withdraw his admissions before the sentencing court could rely on those admissions. (Cf. People v. Delgado (1993) 16 Cal.App.4th 551, 555 [remedy for not receiving a sentence promised by the court was opportunity to withdraw guilty plea].) Because Ensminger was not afforded that opportunity, the court could not impose the strike conviction.

We agree the trial court improperly imposed one of Ensminger’s strikes. On the available record, however, we cannot determine whether the “global resolution” involved a negotiated sentence or a lawful indicated sentence. The trial court determined the global resolution was an “offer” of a five-year sentence in the instant case and the admission form indicates the prior strike convictions and the prior prison terms would not be used in sentencing. These facts, however, do not resolve whether a plea agreement existed. (Cf. People v. Clancey (2013) 56 Cal.4th 562, 582 [“[W]hen a trial court has invoked its statutory power to dismiss the strike allegation in order to indicate the sentence it would impose, the court has not engaged in plea bargaining.”]; People v. Buttram (2003) 30 Cal.4th 773, 789 [“[B]y negotiating only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit.”]; Pen. Code, § 1192.5 [plea agreement “may specify the exercise by the court thereafter of other powers legally available to it”].)

Whether the global resolution results in a negotiated sentence or a lawful indicated sentence in the instant case will determine the scope of the relief granted. For example, if the global resolution is a lawful indicated sentence, the trial court may impose a new sentence that does not violate the terms of the indicated sentence. Alternatively, it can reinstate the instant sentence if Ensminger does not withdraw his admissions to the priors. If Ensminger does withdraw his admissions, he may go to trial on the prior conviction allegations or submit a new admission form. A new sentencing hearing would follow.

If the global resolution is a negotiated sentence, the trial court must determine the material terms of the negotiated sentence. The ensuing resentencing must comply with those terms, or depending on the facts, the plea agreement may be rescinded and the parties may renegotiate. Accordingly, we will remand the matter for the trial court to hold a hearing to determine the parameters of the global resolution in the context of the instant case and to conduct further proceedings in light of the court’s determination. The trial court is not limited to the resolutions proposed above, but may proceed in any manner appropriate to the court’s determination.

III

DISPOSITION

The matter is remanded for further proceedings consistent with this opinion.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.