Filed 1/22/20 P. v. Gonzalez-Sanchez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

FLORENTINO GONZALEZ-SANCHEZ,

Defendant and Respondent.

F077089

(Super. Ct. No. VCF323924)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney, Dave Alavezos, Assistant District Attorney, Douglas W. Rodgers, Cindy Underwood, Jamil Nushwat and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Respondent.

-ooOoo-

Over prosecutor objections, 24-year-old Florentino Gonzalez-Sanchez (defendant) pleaded no contest to all charges (three counts of second degree robbery), enhancements and two prior “Three Strike” convictions. He was sentenced to 24 years in state prison. To arrive at the 24-year sentence, the trial court exercised its discretion under Penal Code section 1385 to strike one of the prior convictions.

This is an appeal brought by the People, who contend that the trial court exceeded its authority in dismissing the prior strike conviction and that the no contest plea was obtained by unlawful judicial plea bargaining.

We affirm. We conclude that the trial court did not abuse its discretion in dismissing the prior strike. And we find the 24-year sentence was not the product of an unlawful judicial plea bargain since the proposed sentence reflected what the trial court believed was the appropriate sentence for this case, regardless of whether defendant was convicted by plea or trial.

STATEMENT OF THE FACTS

On August 16, 2015, two armed and masked men robbed a jewelry store in Dinuba. When the men entered the store, they ordered everyone onto the ground and then stole approximately $700,000 worth of watches, rings, chains and cash. Both men pointed their guns at employee M.L., who was scared for her life and thought they would shoot her if she did not follow orders. The men also pointed their guns at another employee, M.A., who was pregnant at the time, and threatened to shoot her as well. She also feared for her life. Also present during the robbery was a customer, J.C. One of the men pointed a gun at J.C., who feared for his life. The men pushed him to the ground and pulled a chain from his neck. A surveillance video captured the robbery and was consistent with the statements provided by the victims.

One of the ski masks used in the robbery was recovered and DNA from the mask indicated a match to defendant. During his initial interrogation following his arrest, defendant initially denied knowing anything about the robbery, but then admitted carrying out the robbery, claiming he had been ordered to do so by a gang member. He claimed the handgun he used in the robbery was a fake. He admitted wearing the ski mask during the robbery, stating it likely fell out of his pocket while fleeing.

RELEVANT PROCEDURAL HISTORY

In September 2015, the People filed a felony complaint, alleging defendant committed three counts of second degree robbery (§ 211). As to all three counts, it was alleged defendant had suffered two qualifying prior serious or violent strikes. (§§ 1170.12, subds. (a)–(i), 667, subds. (b)–(i).) These strikes consisted of an October 17, 2011, attempted first degree residential burglary (§§ 664, 459) and a January 13, 2013, first degree residential burglary (§ 459). It was further alleged defendant suffered two prior serious felonies (§ 667, subd. (a)(1)) and a prior qualifying prison commitment (§ 667.5, subd. (b)) for the 2013 first degree burglary conviction. Defendant pled not guilty and denied all allegations.

In late 2016, in response to an off the record oral Romero motion, the trial court gave an indicated sentence of 16 years, assuming it would strike the 2011 attempted residential burglary conviction. The People then filed points and authorities in opposition the court’s stated intention to strike the 2011 prior conviction.

On January 27, 2017, the court acknowledged receiving the People’s opposition to the “Court’s proposal” to strike one of the strikes, saying it made “some very good points.” However, the court did not indicate it was changing its indicated granting of the Romero motion and 16-year sentence. Defense counsel expressed his client’s desire to enter a plea to the indicated sentence of 16 years, but that his client wanted more time to deal with family and bail issues before he entered his plea and was taken into custody. The trial court granted the extension to April 18. Acknowledging that the People would want to put something on the record as to why he was going to strike the prior strike, the trial court asked that defense counsel provide “some grounds” to justify striking the strike, which defense counsel apparently provided to the court and the People before the next hearing. The trial court noted the People’s objection to the indicated sentence.

On April 18, 2017, the court stated that the People’s opposition to the indicated sentence was strong enough for it to request the victims be present to make impact statements at the time of the plea. The trial court said it was going to strike the prior strike, dependent on defendant’s cooperation, taking responsibility, and “doing the right thing.” The trial court again continued the hearing, this time to June 8, 2017, for a change of plea.

On June 2, 2017, the People filed supplemental points and authorities in opposition to strike the prior conviction.

On June 8, no victims appeared. However, the trial court stated it was no longer willing to give the original indicated sentence of 16 years, stating it “agreed with everything” the People said in their supplemental opposition to the Romero motion. The trial court stated it was ready to set a trial date, but it suggested that it now “would consider … somewhere around 25 to 30 years before [he] would consider resolving this case and taking the life off,” if that could be worked out between defendant and defense counsel and was acceptable to the People. The court concluded its thoughts by stating that “somewhere around 25 to 30 years is something that would be a lot more agreeable with me than 16 years.” A four-day jury trial was set for December 12, 2017. The court told defense counsel “if your client is convicted, you can file [a] Romero motion then.”

At the hearing on November 21, 2017, the trial court opened by stating: “How can I help resolve this matter.” The People stated there would be no offers made, making essentially the same arguments contained in their written oppositions to the Romero motion and asked that a trial date (which was vacated by pretrial) be set again. The trial court then stated: “So if he pled to the sheet—I’m thinking out loud— [and] I struck one of the strikes [¶] … [¶] [t]his isn’t much of a choice for your client, but I would be willing if he wants to plead for 27 years” The People objected, stating defendant was not outside the spirit of the three strikes law. The trial court, citing the evidence presented at the preliminary hearing, responded that “given the whole totality of the circumstances … I think 27 years is a reasonable resolution of what happened.” The trial court stated “[t]hat’s where we are. If he wants 27 years, or he can go to trial.” Finally, the court added that defendant “almost has to take the deal,” because if he went to trial he would be convicted, and “I’m right back with the same issues at sentencing.” The matter was continued to December 18, 2017, for an anticipated plea.

On December 18, 2017, the trial court recounted the history of plea discussions: after hearing the preliminary hearing and going back and forth, he initially gave an indicated sentence of 16 years. After the People filed their supplemental opposition to the Romero motion, which he agreed with, he vacated his indicated sentence and “reassessed the matter.… And I felt if the defendant pled as charged, I would max him out, striking one of the strikes for a total of 27 years. That is how I calculated it.” After input from both counsel on the proper calculations for such a plea, the court arrived at 25 years. The court stated the following on its reasons for imposing his indicated sentence and for striking the 2011 conviction:

“So what I’m actually doing is looking at this case as though—because it’s my understanding the defendant’s willing to plead as charged.

“So I’m looking that the case now, as if he had been convicted. And what I would do at the time of sentencing, and whether I would then entertain a Romero motion, and I will. Because if the defendant pleads as charged, I will max him out for 25 years.

“I will strike the attempted first-degree residential burglary from 2011.

“For the following reasons: One is an attempt rather than an actual offense. It is six years old. The defendant was one of two people who committed this robbery at a jewelry store.

“I cannot confirm it was the defendant who pointed a gun, but a gun was used. I can’t confirm it was the defendant who did—who used the gun.

“It’s a horrific incident, but no one was injured or hurt in this incident. All three of the robbery victims were certainly scared.

“The defendant is youthful. He’s 24 plus.

“He claims to have been acting under duress that he was forced to commit this crime on orders from a gang—there’s really nothing that supports that other than the defendant’s admission, but that does have some credibility to me because when the defendant was caught, he readily admitted his involvement in this, and he readily admitted [other] people who were involved in this also.

“So the fact that he was—he claims to have participated as the result of a situation where he was acting on orders, has some validity to the Court.

“As I’ve indicated, he admitted his involvement, given the fact that he’s pleading to the sheet and admitted his involvement at an early stage of the proceedings. He’s implicated the other participants in this. No one was injured. He’s youthful.

“The bottom line on this whole thing is that the Court believes serving a 25-year sentence for three new strikes of which he’ll serve 80 or 85 percent of that time is a fair and equitable resolution of this case based upon the defendant’s conduct in this case.

“I know the People are not happy. [They argue] if we went to trial and I was prevented from striking one of the strikes, and then the defendant would have to serve a term of twenty-five years to life.

“Certainly, there are facts that will justify that. But in the Court’s opinion considering the totality of the circumstances, I stand by my opinion.

“And I understand the People want to appeal this, and that’s their right. And we’ll set sentencing off in order for them to do that. But I’m treating this case as though he had gone to trial, been convicted of everything, and I’m treating this as though I were sentencing him considering the Romero issue.

“So with that in mind, I’m assuming, [defense counsel], that your client is willing to enter a plea?” (Italics added.)

Defense counsel responded affirmatively.

Before a plea was entered, the People repeated their arguments against striking the prior conviction. The People again stated it was not appropriate to strike the prior strike, noting defendant’s criminal history, which dated back 10 years to when he was 14 years old; that he had not been crime free during those 10 years; that he was on parole or probation at the time of the current offense; that the current crime involved a firearm; that the crime was traumatic for the victims; that he took property of a high value from the jewelry store; that the crime was gang-related as he committed the crime when told to do so by a superior in the gang; that he had already been shown previous leniency in sentencing; that he failed to rehabilitate himself in juvenile hall; and that he did not immediately admit participation in the current crime, but waited until confronted with DNA and video evidence.

Defendant then pled guilty to each of the charges and admitted the enhancements and prior convictions.

At sentencing on February 26, 2018, the court repeated an abbreviated version of essentially the same colloquy:

“In this matter the defendant’s application for probation is denied. I’m going to max him out on the crime set forth for a total of 24 years. There’s so many factors, good and bad on this case, but given the history, the aggravated term is being selected. It’s also the negotiated plea. But as I indicated in my prior hearings on this matter, certainly this is bad. Robbery, three different people, but the defendant took responsibility. He’s youthful. So considering everything and the fact that now one of the victims[ ] thinks this is fair, I think the 24 years sentence is a fair resolution of this matter and I intend to apply it.

“In this matter the defendant’s application for probation is denied. Court is striking one of the strikes.” (Italics added.)

The trial court struck one of defendant’s strikes and sentenced him to an aggregate prison term of 24 years, calling it a “negotiated plea.”

DISCUSSION

I. DISMISSAL OF THE PRIOR STRIKE CONVICTION
II.
The People contend the trial court abused its discretion when it dismissed one of defendant’s prior strike convictions pursuant to section 1385 and Romero and imposed a second strike term. The People cite to defendant’s lengthy record of prior convictions, as well as the circumstances of the current offense, and argue that the trial court should have imposed a third strike indeterminate term. We find no abuse of discretion.

A court’s discretionary decision to dismiss a prior strike conviction under section 1385 is subject to review for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) The abuse of discretion standard “is deferential…. But it is not empty.” (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) “The governing canons are well established: ‘This discretion … is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]’ (People v. Warner (1978) 20 Cal.3d 678, 683.)” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “‘[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citation.]” (Ibid.)

Section 1385, subdivision (a) authorizes the trial court to dismiss a prior strike conviction “in furtherance of justice.” (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony); Williams, supra, 17 Cal.4th at p. 158; Romero, supra, 13 Cal.4th at pp. 529–530.) In deciding whether dismissal of a prior strike conviction is in furtherance of justice, “the court … must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the … spirit [of the Three Strikes law], in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, at p. 161; People v. Garcia (1999) 20 Cal.4th 490, 503 (Garcia).)

In deciding a defendant’s “prospects” for committing future crimes, the sentence imposed by the trial court is itself a factor, since the defendant presumably will have fewer opportunities to commit crime while in prison. “[A] defendant’s sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (Garcia, supra, 20 Cal.4th at p. 500.) That is why in multiple present felony cases, a trial court may be justified in striking prior conviction allegations as to one such felony but not another (ibid.), or in a felony-misdemeanor (“wobbler”) case, in choosing to treat the present offense as a misdemeanor. (See People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 979.) Applying these standards, the Supreme Court in Williams found that the trial court had abused its discretion in dismissing prior convictions in order to sentence a defendant as a “second striker,” but had acted within its discretion in dismissing prior serious felony convictions as to one present felony conviction but not another in Garcia.

With these principals in mind, we proceed in this case to a consideration of the exercise of discretion. Since the trial court’s exercise of discretion is central to this case, we again set out the trial court’s reasoning. On December 18, 2017, the trial court stated that, at sentencing, it would strike the 2011 attempted first degree residential burglary for the following reasons:

“ … One [it] is an attempt rather than an actual offense. It is six years old. The defendant was one of two people who committed this robbery at a jewelry store.

“I cannot confirm it was the defendant who pointed a gun, but a gun was used. I can’t confirm it was the defendant who did—who used the gun.

“It’s a horrific incident, but no one was injured or hurt in this incident. All three of the robbery victims were certainly scared.

“The defendant is youthful. He’s 24 plus.

“He claims to have been acting under duress that he was forced to commit this crime on orders from a gang—there’s really nothing that supports that other than the defendant’s admission, but that does have some credibility to me because when the defendant was caught, he readily admitted his involvement in this, and he readily admitted [other] people who were involved in this also.

“So the fact that he was—he claims to have participated as the result of a situation where he was acting on orders, has some validity to the Court.

“As I’ve indicated, he admitted his involvement, given the fact that he’s pleading to the sheet and admitted his involvement at an early stage of the proceedings. He’s implicated the other participants in this. No one was injured. He’s youthful.

“The bottom line on this whole thing is that the Court believes serving a 25-year sentence for three new strikes of which he’ll serve 80 or 85 percent of that time is a fair and equitable resolution of this case based upon the defendant’s conduct in this case.”

At sentencing on February 26, 2018, the court repeated an abbreviated version of essentially the same colloquy and struck one of defendant’s strikes.

As argued by the People, defendant’s record is not outside the spirit of the three strikes law and the interests of justice would not be served by dismissing the prior strike allegation, citing the following: defendant, who was born in September of 1993, has a lengthy juvenile criminal history beginning at age 13. At age 14, he committed, on separate occasions, vandalism, petty theft, and first degree burglary with a person present, for which he was sent to a youth facility. Ages 15 through 17, defendant violated probation numerous times and also attempted to escape the youth facility. Within days of becoming an adult, defendant committed an attempted first degree residential burglary, a strike, for which he was convicted. He was still on juvenile probation at the time and granted probation. It is this strike that is at issue here. While on adult probation, he subsequently committed a misdemeanor battery and another felony strike offense. This second strike offense resulted in a four-year state prison term, for which he was paroled on June 30, 2015. The current strike offenses were committed August 16, 2015, which the People note was only 46 days after he was released from prison. And, in December 2017, while awaiting the outcome of the current allegations, defendant was picked up on unrelated charges.

While we agree that the People raise valid factors, we find the trial court did not abuse its discretion in finding defendant fell outside the spirit of the three strikes law. As stated above, a trial court’s ruling on a motion to dismiss a prior strike is reviewed for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) The burden is on the party asserting that the trial court’s granting of the motion was arbitrary or irrational, such as where the trial court was not aware of its discretion, considered impermissible factors, or imposed a sentence that is absurd under the particular facts of the case. (Id. at pp. 376–377.)

In reaching its decision in this case, the trial court employed the factors required under Williams, showing that it was well aware of its discretion. It considered the nature and circumstances of defendant’s present felonies, as well as the prior serious and/or violent felony convictions. It considered the particulars of defendant’s background and character. (Williams, supra, 17 Cal.4th at p. 161.) In making its determination, the trial court emphasized defendant’s age and early admission of responsibility. A defendant’s age is a part of a defendant’s background that the court can consider. The other factors listed were also proper considerations for the court. Here, the People’s argument does not show that the trial court failed to consider the appropriate factors, only that they disagree with the trial court’s weighing of the various factors, and this is not an appropriate basis on which to find an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 379.) The People have not shown that the trial court’s decision was so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

III. JUDICIAL PLEA BARGAINING
IV.
The People also contend defendant’s guilty plea was the result of an unlawful judicial plea bargain. Defendant disagrees, stating that no plea bargaining took place but that, instead, the trial court gave a proper indicated sentence based on a plea to all of the charges and allegations set forth in the information. We agree with defendant.

Standard of Review

“On appeal, we presume that a judgment or order of the trial court is correct, ‘“[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.”’ [Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 666.) 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” (In re Andres G. (1998) 64 Cal.App.4th 476, 483) and “‘judicial plea bargaining in contravention of existing law are acts in excess of a court’s “jurisdiction.”’” (People v. Turner (2004) 34 Cal.4th 406, 418.)

Plea Bargaining

Plea bargaining is “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).)

“The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged…. Judicial approval is an essential condition precedent to the effectiveness of the ‘bargain’ worked out by the defense and the prosecution.” (People v. Orin (1975) 13 Cal.3d 937, 942–943.)

“The court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over prosecutorial objection.” (Id. at p. 943.)

In contrast, an indicated sentence is not a promise that a particular sentence will in fact be imposed at sentencing and it does not divest the trial court of its ability to exercise discretion at the sentencing hearing. (People v. Clancey (2013) 56 Cal.4th 562, 572–585 (Clancey).) By indicating a sentence, “the court has merely disclosed to the parties at an early stage—and to the extent possible—what the court views, on the record then available, as the appropriate sentence so that each party may make an informed decision.” (Id. at p. 575.) Accordingly, if the factual predicate underlying an indicated sentence is disproved at trial, the trial court may withdraw that indicated sentence. (Id. at p. 576.) Furthermore, the trial court retains broad discretion to modify an intended sentence even if its factual predicate is not disproved. (Id. at pp. 576–577.) In the context of an indicated sentence, a trial court’s ordinary sentencing discretion does not necessarily exclude the power to dismiss under section 1385. (Clancey, supra, at p. 580.) Thus, when a trial court has invoked its statutory power to dismiss a strike allegation in order to indicate the sentence it would impose, the trial court has not engaged in plea bargaining. (Id. at p. 582.)

Here the People contend that while the trial court initially gave an indicated sentence of 16 years, unlawful judicial plea bargaining followed and resulted in the eventual plea. In support of their claim, they cite to the following sequence of events in the record:

a) On January 27, 2017, defense counsel noted the trial court’s indicated sentence of 16 years and stated defendant wished to enter a plea, but that defendant, who was not in custody at the time, would like a “little extra” time to deal with family and bail issues before doing so. The trial court eventually settled on April 18, stating, “If you tell me he intends to enter a plea at that time, I’ll do April 18.” The trial court then addressed defendant, stating, “we’re putting this over about two and a half months,” but that “[i]f it’s not resolved on the 18th, I’m going to be very unhappy.” The trial court then expressed that defense counsel needed to provide the trial court with some grounds or factors that would justify the trial court striking the strike. Defense counsel stated that he would do so. The trial court noted the newly scheduled date was over the People’s objection to the trial court’s indicated sentence and desire to set a trial date.
b)
c) On April 18, 2017, the trial court stated it would continue the hearing in order to allow the victims to be heard. In addressing defendant, the trial court stated “And you’re going to take responsibility for what you did. I appreciate that. [¶] But … there are many people here that think you should be doing 25 to life instead of 16 years. And you’re going to hear from all those people the next time you’re here. And they’re going to be real upset with me because I’m going to strike one of the strikes. The People are upset with me. [¶] So this all depends on your cooperation and your taking responsibility and doing the right thing. You take off on me[ ], then I have no reasons for trying to help you out or striking a strike in the future. You understand?”
d)
e) On June 8, 2017, the trial court revoked the prior indicated sentence of 16 years because it agreed with the People’s additional points and authorities regarding striking defendant’s prior strike. Immediately thereafter, the trial court began negotiating with defense counsel, stating that the sentence had to be “somewhere around 25 to 30 years before I would consider resolving this and taking the life off, so you two can work on that if that’s at all acceptable to [the prosecutor] but I agree with everything [the prosecutor] said.” Defense counsel noted that defendant was under the impression a stipulated disposition of 16 years had already been reached. Defendant reiterated that he thought he had a “deal.” A trial date was set for December 12, 2017. But the trial court then suggested to defense counsel “if you can get creative and give a number that [the prosecutor] can live with, and I can tell you there’s a couple ways to get there.” Defense counsel immediately countered that the People “ha[d] no offer,” and that it was the trial court that had offered “the deal” which was now “off the table.” The trial court again suggested that a sentence of 25 to 30 years would be “agreeable”, but that “would involve a bit of negotiations on [defense counsel’s] part.” When defense counsel objected that the trial court was not following its original indicated sentence, the trial court stated, “You don’t have a deal until you do the deal,” and that no deal was ever made that was consummated.
f)
g) At a hearing on November 21, 2017, the trial court stated it had previously “entered into a deal, then … reneged.” The People assured the trial court there would be no offers made on the case and asked that a trial date, which had been vacated, be reset. After additional argument from the People not to strike the prior strike, the trial court stated to defense counsel, “This isn’t much of a choice for your client, but I would be willing if he wants to plead to 27 years.” The trial court again stated defendant could agree to 27 years or go to trial. When defense counsel asked for time to discuss the deal, the trial court stated, “He has no choice. [¶] I mean, he has no choice. He almost has to take the deal. If he goes to trial, he’s going to be convicted. Then I’m right back with the same issues at sentencing.”
h)
i) Defendant subsequently pled to the charges. At sentencing on February 26, 2018, despite the People’s repeated objection, the trial court struck one of defendant’s strikes and sentenced him to an aggregate prison term of 24 years, calling it a “negotiated plea.”
j)
Defendant contends no judicial plea bargaining took place, as he admitted all charges and allegations. We agree with defendant for the following reasons.

The uncontradicted realities of this case were serious charges, enhancements, prior strike allegations with life-sentence consequences. The People proceeded with a strict no-offer posture and defense counsel trying to get the best deal for his client, given the facts. Stripped of the unnecessary comments and verbiage by the trial court, and looking at the totality of the courtroom discussions between December 2016 and December 2017, what do you have? The imposition of an indicated sentence following the dismissal of a prior strike conviction, not an illegal judicial plea bargain.

The trial judge, an experienced criminal judge, having heard the preliminary hearing, gives an indicated sentence of 16 years, which is procedurally proper, stating that he is prepared to strike one prior to achieve that sentence.

After further argument by both sides, and supplemental written opposition from the People, the trial judge withdraws his indicated sentence of 16 years. Upon reassessment, he proposes another indicated sentence—plead to all the charges, enhancements, and both prior convictions, and he will strike one prior and sentence defendant to 24 years. He offered no inducement or leniency in exchange for the plea—plead straight up to all the charges, including enhancements and both prior convictions, and his indicated sentence will be 24 years, based on the dismissal of one of the strikes.

As the trial court stated, the indicated sentence was the same as he would have imposed if the defendant proceeded to trial and was convicted on all counts and allegations.

We find no illegal judicial plea bargaining and reject the People’s argument to the contrary.

V. SENATE BILL NO. 1393
VI.
On September 30, 2018, the Governor signed Senate Bill No. 1393 which, effective January 1, 2019, amends sections 667, subdivision (a) and 1385, subdivision (b) to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1–2.) Under the former versions of these statutes, the trial court was required to impose a five-year consecutive term for “any person convicted of a serious felony who previously has been convicted of a serious felony” (§ 667, subd. (a)(1)), and the court had no discretion “to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” (Former § 1385, subd. (b).)

In supplemental briefing, defendant maintains that Senate Bill No. 1393 applies retroactively, and therefore, we must remand this matter for resentencing under the bill. The People concede that Senate Bill No. 1393 is retroactive, but contend remand is not necessary because the record is “unambiguous that the trial court would not have exercised [its] discretion to strike the prior serious felony allegations, even if it had the discretion to do so.” We agree that the amendments apply retroactively to this case, which is not yet final. (See People v. Sexton (2019) 37 Cal.App.5th 457, 472–473; People v. Garcia (2018) 28 Cal.App.5th 961, 972.)

“‘[W]hen the record shows that the trial court proceeded with sentencing on the… assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise that sentencing discretion at a new sentencing hearing.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Remand is not required, however, if “the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the previously mandatory] enhancement.” (Ibid.) Unless the record contains a clear indication that the trial court would not have stricken the prior serious felony conviction enhancements, remand is required. On that issue, the record is silent.

Accordingly, remand is appropriate to allow the trial court to exercise its discretion as to whether to strike defendant’s prior serious felony enhancements.

IV. SENATE BILL NO. 136

Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) was signed into law on October 8, 2019, and became effective on January 1, 2020. Senate Bill No. 136 amended section 667.5, subdivision (b) regarding prior prison term enhancements. Under section 667.5, subdivision (a), which remains unchanged, courts are required to impose a three-year sentence for each prior separate prison term served by the defendant where the prior and current offense was a violent felony, as defined in subdivision (c) of section 667.5. For other felonies, former section 667.5, subdivision (b) imposed an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances. However, amended section 667.5, subdivision (b) imposes that additional one-year term only for each prior separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) Because defendant’s prior prison term was not served for a sexually violent offense, a section 667.5, subdivision (b) enhancement is now unauthorized under the amended statute.

In supplemental briefing ordered by this court, the parties agree that Senate Bill No. 136 applies because the statute is retroactive and applies to all cases not yet final as of its effective date. (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia, supra, 28 Cal.App.5th at p. 972.)

Accordingly, on remand, the trial court is required to resentence defendant in compliance with the law at the time of resentencing, including Senate Bill No. 136.

DISPOSITION

The case is remanded to allow the trial court to exercise its discretion under Senate Bill No. 1393. At resentencing, the trial court shall strike the three section 667.5, subdivision (b) enhancements imposed but stayed. In all other respects, the judgment is affirmed.

The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modifications. The court shall forward a certified copy of the same to the appropriate authorities.

_______________________

FRANSON, ACTING P.J.

WE CONCUR:

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PEÑA, J.

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SNAUFFER, J.