Filed 4/2/13 P. v. Alvarez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                         G046490

         v.                                                            (Super. Ct. No. 08HF1565)

BOBBY ANGEL ALVAREZ,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
Gregg L. Prickett, Judge. Reversed and remanded with directions.
                   Christian C. Buckley, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                                      INTRODUCTION
               Defendant Bobby Angel Alvarez appeals from the judgment of conviction
entered against him after a jury trial. Before trial, the prosecution had offered defendant
a negotiated disposition by which defendant would plead guilty to an assault offense and,
inter alia, be placed on formal probation under terms and conditions including that he
serve 365 days in jail. Defendant accepted the prosecution’s offer, but the trial court
refused to accept the agreement.
               We reverse. Based on the record before us and for the reasons we explain
in detail, the trial court erred by not accepting the negotiated disposition agreement
reached by defendant and the prosecution. The only suitable remedy is specific
enforcement of defendant’s written negotiated disposition agreement with the
prosecution; therefore, on remand, we direct the trial court to accept that agreement.


                              PROCEDURAL BACKGROUND
               Defendant and codefendant Richard Anthony Fuentez III (Fuentez) were
charged in an information with (1) assault with a deadly weapon in violation of Penal
                                       1
Code section 245, subdivision (a)(1) (count 1); (2) assault by means of force likely to
produce great bodily injury in violation of section 245, subdivision (a)(1) (count 2); and
(3) battery inflicting serious bodily injury in violation of section 243, subdivision (d)
(count 3). Defendant alone was charged in the information with possession of a deadly
weapon, namely, brass knuckles in violation of former section 12020, subdivision (a)(1)
(count 4). As to counts 1 and 2, the information alleged, pursuant to section 12022.7,
subdivision (a), and within the meaning of sections 1192.7 and 667.5, defendant and
Fuentez personally inflicted great bodily injury on Shane Kral, who had not been an

       1
           All further statutory references are to the Penal Code.

                                               2
                                                                                     2
accomplice during the commission and attempted commission of those offenses. The
charges arose out of a fight in a restaurant and bar.
              On the date set for trial, defendant and Fuentez agreed to the prosecution’s
offer in which defendant and Fuentez would each plead guilty to a single count of assault,
and be placed on probation under certain terms and conditions. (Defendant’s negotiated
disposition agreement was conditioned on, inter alia, his serving 365 days in jail.) The
trial court started to take their pleas, reviewing with defendant and Fuentez the rights they
                                                                      3
were giving up by pleading guilty as set forth in the completed Tahl forms they had
submitted to the court. Defendant’s Tahl form, which sets forth his negotiated
disposition agreement with the prosecution, is part of our record. The trial court
confirmed with defendant the statement in his Tahl form, setting forth the factual basis
for his plea, was a true statement. After the court confirmed with Fuentez the truth of the
factual basis statement in his Tahl form, the court asked Fuentez, “how do you plead?”
Fuentez responded, “[g]uilty, Your Honor.” The court then stated, “[w]e are off the
record.”
              Upon resuming proceedings on the record, the trial court asked Fuentez if
he had any questions about what he was doing, and Fuentez said, “[n]o.” The court also
asked, “Mr. Fuentez, do you wish me to accept your plea of guilty?” Fuentez responded,
“[y]es, Your Honor.” The court then found a knowing, intelligent, voluntary waiver of
Fuentez’s constitutional rights and a factual basis for the plea. Fuentez waived
arraignment and time for sentencing; the court, the prosecutor, and Fuentez’s counsel



       2
        Although not relevant to the issue presented in this appeal brought only by
defendant, the information also alleged, pursuant to section 667.5, subdivision (b), that
Fuentez had suffered two prior convictions for each of which he served a separate prison
term. The information did not allege any prior conviction enhancement allegations as to
defendant.
      3
        In re Tahl (1969) 1 Cal.3d 122.

                                              3
discussed Fuentez’s possible sentence. The court again stated they were going “[o]ff the
record.”
              When the proceedings went back on the record, the court adjourned
proceedings for the day without returning to the plea of defendant or Fuentez.
              The following morning, Fuentez informed the trial court that he had
changed his mind and wished to go to trial on the charged offenses against him. The
court did not then address the status of defendant’s plea, but began addressing pretrial
issues. The court granted defendant’s counsel’s request to “lay a record as to our
off-the-record discussions.” Defendant’s counsel asserted that notwithstanding the
package nature of the original negotiated disposition agreements, the prosecution had
agreed to offer defendant alone the same negotiated disposition agreement it had offered
defendant before Fuentez declined the negotiated disposition agreement offered to him.
The court confirmed defendant’s counsel’s statement that the court would not accept a
negotiated disposition agreement between the prosecution and defendant alone.
According to the court, such an agreement would have to also include Fuentez for court
approval.
              A jury was selected the following day. The jury found defendant guilty on
all four counts, and found that defendant had personally inflicted great bodily injury on
Kral in the commission of counts 1 and 2 as alleged in the information. The jury found
Fuentez not guilty as to each of the counts charged against him.
              The trial court imposed a total prison term of six years eight months, but
suspended execution of that sentence. The court placed defendant on formal probation
for five years, conditioned on, inter alia, defendant serving 365 days in jail. Defendant
appealed.




                                             4
                                       DISCUSSION
              Defendant’s sole contention in this appeal is that the trial court erred by
rejecting the negotiated disposition agreement defendant had reached with the
prosecution. For the reasons we will explain, we agree with defendant.


                                              I.
               GOVERNING LEGAL PRINCIPLES AND STANDARD OF REVIEW
              “Plea negotiations and agreements are an accepted and ‘integral component
of the criminal justice system and essential to the expeditious and fair administration of
our courts.’ [Citations.] Plea agreements benefit that system by promoting speed,
economy, and the finality of judgments.” (People v. Segura (2008) 44 Cal.4th 921, 929.)
“[T]he process of plea negotiation ‘contemplates an agreement negotiated by the People
and the defendant and approved by the court.’” (Id. at pp. 929-930.) The trial court’s
approval “‘is an essential condition precedent to the effectiveness of the “bargain”
worked out by the defense and prosecution.’” (Id. at p. 930.)
              “[T]he trial court may decide not to approve the terms of a plea agreement
negotiated by the parties. [Citation.] If the court does not believe the agreed-upon
disposition is 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 consent
of both parties.’” (People v. Segura, supra, 44 Cal.4th at p. 931.)
              “In exercising their discretion to approve or reject proposed plea bargains,
trial courts are charged with the protection and promotion of the public’s interest in
vigorous prosecution of the accused, imposition of appropriate punishment, and
protection of victims of crimes. [Citation.] For that reason, a trial court’s approval of a
proposed plea bargain must represent an informed decision in furtherance of the interests
of society [citation]; as recognized by both the Legislature and the judiciary, the trial

                                              5
court may not arbitrarily abdicate that responsibility.” (In re Alvernaz (1992) 2 Cal.4th
924, 941.) “For example, in People[ v.] Orin[ (1975)] 13 Cal.3d [937,] 943-944, [the
Supreme Court] held that the underlying purpose of the statutory requirements governing
dismissal of counts under section 1385 was to protect the public interest against
‘improper or corrupt dismissals,’ and to impose a purposeful restraint upon the exercise
of judicial power.” (Ibid.)
               The United States Supreme Court recently reiterated the importance of the
plea bargaining process in our judicial system in Missouri v. Frye (2012) 566 U.S. __, __
[132 S.Ct. 1399, 1407], stating: “The reality is that plea bargains have become so central
to the administration of the criminal justice system that defense counsel have
responsibilities in the plea bargain process, responsibilities that must be met to render the
adequate assistance of counsel that the Sixth Amendment requires in the criminal process
at critical stages. Because ours ‘is for the most part a system of pleas, not a system of
trials,’ [citation], it is insufficient simply to point to the guarantee of a fair trial as a
backstop that inoculates any errors in the pretrial process. ‘To a large extent . . . horse
trading [between prosecutor and defense counsel] determines who goes to jail and for
how long. That is what plea bargaining is. It is not some adjunct to the criminal justice
system; it is the criminal justice system.’ [Citations.] In today’s criminal justice system,
therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost
                                              4
always the critical point for a defendant.” The United States Supreme Court further
stated: “To note the prevalence of plea bargaining is not to criticize it. The potential to
conserve valuable prosecutorial resources and for defendants to admit their crimes and




       4 The United States Supreme Court noted that 97 percent of federal convictions
and 94 percent of state convictions are the result of guilty pleas. (Missouri v. Frye,
supra, 566 U.S. at p. __ [132 S.Ct. at p. 1407].)

                                                  6
receive more favorable terms at sentencing means that a plea agreement can benefit both
                                                   5
parties.” (Id. at p. __ [132 S.Ct. at p. 1407].)


                                              II.

           DETAILED CHRONOLOGY OF HEARINGS ADDRESSING THE PROSECUTION’S
                AND DEFENDANT’S NEGOTIATED DISPOSITION AGREEMENT.

                                              A.
             Pretrial Hearings on Defendant’s Negotiated Disposition Agreement
                During the hearing on November 29, 2011, the date set for trial, the court
addressed the prosecution’s offers for negotiated disposition agreements that had been
extended to Fuentez and defendant. Fuentez initially informed the court that he was
going to reject the offer. He explained he had “uncertainties about the restitution
hearing” because he did not “know what [he]’ll end up paying.”
                The trial court then asked defendant whether he wished to accept the
prosecution’s offer. Defendant stated he decided to accept the prosecution’s offer. The
court told defendant to “[f]ill out the forms.”
                That same day, a Tahl form, signed by defendant, defendant’s counsel, and
the prosecutor, was filed in the trial court. The Tahl form stated defendant agreed to
plead guilty to one count of assault with a deadly weapon in violation of section 245,
subdivision (a)(1) and be sentenced to three years’ formal probation with terms and
conditions including he serve 365 days in jail; the prosecutor agreed to dismiss the


       5
         The United States Supreme Court, quoting a law review article, further stated:
“‘[Defendants] who do take their case to trial and lose receive longer sentences than even
Congress or the prosecutor might think appropriate, because the longer sentences exist on
the books largely for bargaining purposes. This often results in individuals who accept a
plea bargain receiving shorter sentences than other individuals who are less morally
culpable but take a chance and go to trial.’” (Missouri v. Frye, supra, 566 U.S. at p. __
[132 S.Ct. at p. 1407].)

                                               7
remaining charges and enhancements. (A copy of defendant’s Tahl form is included in
the clerk’s transcript at pages 175 through 182.)
               That afternoon, the trial court acknowledged on the record that both
                                                                6
defendant and Fuentez had submitted Tahl forms to the court. The court further stated,
“the law requires I go over these with you.” The court proceeded to go over certain rights
in the Tahl form with defendant and Fuentez. Each stated his understanding of the rights
he would be giving up by pleading guilty in accordance with his respective negotiated
disposition agreement.
               The trial court then asked Fuentez how he wished to plead to count 2,
assault by force likely to produce great bodily injury. Fuentez responded, “[g]uilty, Your
Honor.” Fuentez’s counsel joined in Fuentez’s waiver. The court stated it found “a
knowing, intelligent, voluntary waiver of Mr. Fuentez’s constitutional rights” and found a
factual basis for the plea. Following off-the-record discussions and a brief discussion of
Fuentez’s possible sentence—without an explanation on the record—the trial court
abruptly concluded the hearing for the day, saying, “[w]e’re done. Sorry. This shouldn’t
be this hard. Gentlemen, you’re ordered to return back to this court 9:15 tomorrow
morning. Regrettably, we have not ordered jurors, but we’re going to see what’s going to
happen tomorrow morning at 9:15.”
               The following morning, on November 30, 2011, the trial court asked
Fuentez: “[T]he court’s offer to you is that I will accept this plea if you will agree to
probation with terms and conditions of probation if you were to pay off the court-ordered
criminal restitution and that probation would terminate. [¶] Do you understand that, sir?”
Fuentez answered he understood but was not willing to accept the offer. After
confirming Fuentez’s understanding that he was risking prison time by rejecting
probation, the court started discussing jury selection and other pretrial matters.

       6
           Fuentez’s Tahl form is not included in our record.

                                              8
              Defendant’s counsel then raised the issue of the status of defendant’s
negotiated disposition agreement and the trial court granted defendant’s counsel’s request
to be given the opportunity to create “a record as to [the] off-the-record discussions” that
had occurred on that issue. The following colloquy shows defendant’s counsel confirmed
with the court that the prosecution’s negotiated disposition offer to defendant remained
                                                                  7
on the table, notwithstanding Fuentez’s decision to go to trial, that defendant accepted
the prosecution’s offer, and that the court rejected the negotiated disposition agreement:
              “[Defendant’s counsel]: It’s my understanding that the People had offered
my client an opportunity to sever himself from the case and accept the deal as we
understood it to be, which was a year in county jail with certain terms and conditions. It
is the court’s belief that the case should not be severed, that the court wouldn’t accept my
client to accept the deal without having the co-defendant, Mr. Fuentez; is that correct?
              “The Court: Correct. I said I would not hold it against your—your client
obviously, but that I was not inclined to, on the day of trial, sever a case like this.
              “[Defendant’s counsel]: Very well. Just in terms of a trial task for my
client obviously being forced to go to trial, I suspect that the court would—
              “The Court: Your client can plead guilty anytime he wants. I’m not saying
he cannot plead guilty. I’m saying I’m not going to accept a plea bargain on this case.
              “[Defendant’s counsel]: Correct. But pleading guilty would mean that he
would have to obviously plead guilty to the sheet to the court, which would obviously
require him to plead to two strikes, which is not—which he’s not interested in doing.
              “The Court: Okay.




       7
        The prosecutor was present in court during this discussion and did not object to
defendant’s counsel’s statements regarding the status of the prosecution’s offer to
defendant. In the respondent’s brief, the Attorney General acknowledges, “it appears the
prosecutor ultimately agreed to allow [defendant] to enter the plea individually.”

                                               9
              “[Defendant’s counsel]: But—but I hope, the court for sentencing
purposes, if he’s found guilty, the court would not impose a sentence greater than what he
would have accepted.
              “The Court: I’m not making that commitment, sir. The law does not
require I make that commitment.
              “[Defendant’s counsel]: Okay. Well, just for the record, my client would
have taken the deal. Obviously, he doesn’t want to take two strikes with the court.
              “The Court: Okay. Noted, sir. [¶] I believe yesterday the defendant,
Mr. Fuentez, had entered a plea. The court is going to set aside those pleas at this time,
and there will be no entry of that plea. The People are in no way to mention any type of
admission that occurred by the factual basis of either defendant.”
              The court concluded the hearing by scheduling jury selection on the
following morning.
              On the following morning, December 1, defendant’s counsel again raised
the subject of the trial court’s rejection of defendant’s negotiated disposition agreement
as follows:
              “[Defendant’s counsel]: Your Honor, can I just—yesterday when we had
our chambers discussion about the proposed disposition that the court rejected, I didn’t
really get a chance to lay my specific objection. I feel that I need to preserve that for
appellate purposes. May I?
              “The Court: You may.
              “[Defendant’s counsel]: Essentially I understand that judicial approval is a
condition present [sic] to the court accepting our plea bargain. It’s my understanding that
the court did not want to accept my client’s disposition with the People without having it
been a package deal. Just for the record, I want to object that I do believe that that refusal
for the court to accept our terms—it just appeared it wasn’t the terms of our deal. It was
the issue, but rather having both parties accept that.

                                             10
              “The Court: It was also your client’s reluctance to enter into the plea
agreement that your client several times paused, needed to talk to you to go through it. I
was not prepared to find a knowing, intelligent, voluntary waiver of your client at that
point. Then once the deal further fell apart, I then became very reluctant. In fact, I’m
relieved. I wasn’t sure that your client was fully and completely in agreement to do that,
that—let me finish. [¶] Whenever there is a situation of a package deal, there always is
the potential. I’m always mindful of this of the coercive nature that not only is it in my
best interest, but if I don’t do this, then my buddy doesn’t get the deal and I feel bad
because, you know, this could expose my buddy to more time, things like that. So I was
examining all of that when I made my statement, not simply, you know, that both
defendants accept or both defendants don’t accept.
              “[Defendant’s counsel]: May I?
              “The Court: You may.
              “[Defendant’s counsel]: With all due respect, I did not necessarily see the
same issues that the court saw about my client’s voluntariness of entering into the plea
bargain. He did have questions for me about the issues of time that he’d have to serve,
that were more to the specifics of the terms and conditions of the plea bargain. But
obviously, you having seen thousands of cases and spent years on the bench, I assume
correctly, the court has seen reluctance on behalf of clients, at least defendants to accept
plea bargains. I wouldn’t have joined in the court’s opinions that my court—if my client
had an unwillingness to enter into the plea bargain, it was not knowing, intelligent or
voluntary. [¶] I understand the court’s reasoning to us, now for the first time. It wasn’t
discussed yesterday, but just I respect your opinion and the rules that you have imposed.
I just want to preserve the objection that I do believe that it violates my client’s federal
and state due process rights and based on that, I submit.
              “The Court: Noted.”



                                              11
                                                 B.

 The Court’s and Defendant’s Counsel’s Discussion of Defendant’s Written Negotiated
                  Disposition Agreement at the Sentencing Hearing
                   After the jury found defendant guilty on all four counts as charged and
found the enhancement allegations true, the trial court imposed a sentence of six years
eight months in prison but then suspended execution of that sentence and imposed five
years’ formal probation because of the “unusual circumstances” of the case. The unusual
circumstances included that the offenses occurred during a bachelor party at a location
defendant does not frequent, he is young and has “no significant prior record” (the
information did not allege defendant had suffered any prior convictions), he has a strong
support system, and he did not make excuses for his conduct. The court stated that this
case was “unusual from the classic bar fight [where] someone gets really badly injured,
you should be sent to prison.” The court warned defendant, however, that he now had
two strikes on his record. The terms and conditions of defendant’s formal probation
included defendant serving 365 days in jail.
                   Defendant’s counsel again raised the issue of the rejected negotiated
disposition agreement:
                   “[Defendant’s counsel]: . . . [¶] When we came here and announced ready
for trial, the court saw two defendants here. The People and I, right before trial, have
always discussed that this was going to be a package case. [¶] Before we actually started
trial, [the prosecutor] offered me an opportunity to have my client plead guilty to one
           [8]
nonstrike        count to 245 and to have him conduct 365 days in jail. [¶] It was the court

       8
          Our record consistently shows the only negotiated disposition agreement offered
to defendant by the prosecution was that set forth in the Tahl form and which required
defendant to plead guilty to count 1—violation of section 245, subdivision (a)(1). As the
basis for his plea, defendant admitted he committed the assault “with a deadly weapon”
and defendant initialed the “strike offense” portion of paragraph 12 of the Tahl form. In

                                                 12
who refused to accept that plea bargain on the condition that both parties had to accept
the deal.
                                                                            [9]
              “The Court: And in retrospect, under People vs. Clanc[e]y,          the court was
correct in doing that, as I believe it’s the Third District that has now ruled that would be
an illegal plea bargain.
              “[Defendant’s counsel]: Well—
              “The Court: So—but I note that, sir, because the People could not state that
they were unable—that this case would thus qualify under one of the reasons under
1192.7. I never heard the People state that.
              “[Defendant’s counsel]: But the court never asked the People to provide
any statements either to that.
              “The Court: You are aware of the fact, sir, that I did earlier state that I am
mindful of the discussions that happened in this case. You’re also aware of the fact, sir,
that pretrial negotiations are not a valid consideration at sentencing.
              “[Defendant’s counsel]: This—Your Honor, with all due respect, I’m not
going into the pretrial considerations.


his reply brief, defendant argues it was error for the trial court to fail to complete taking
defendant’s plea after reviewing the entire Tahl form with defendant “and almost the
entire oral plea was placed on the record.” The offense of assault with a deadly weapon
in violation of section 245, subdivision (a)(1) constitutes a serious felony within the
meaning of the “Three Strikes” law. (§§ 1192.7, subd. (c)(31) & 667; People v. Delgado
(2008) 43 Cal.4th 1059, 1065 [assault with a deadly weapon in violation of section 245,
subdivision (a)(1) is a serious felony and “[a] prior serious felony conviction also counts
as a strike”].) It thus appears defendant’s counsel’s statement at the sentencing hearing
that the prosecution’s offer involved defendant pleading to a single “nonstrike” count
may well have been in error. Whether the written negotiated disposition agreement
involved pleading guilty to a strike is not before us and has not been briefed by the
parties.
        9
          A few months after the sentencing hearing, the California Supreme Court
granted a petition for review that was filed in People v. Clancey (2012) 202 Cal.App.4th
790, review granted April 11, 2012, S200158.

                                               13
              “The Court: Then why are you telling me?
              “[Defendant’s counsel]: The point is, my client took the stand and was
forced to trial, not because this wasn’t a fair deal, but because the court wanted both
parties to go to trial. He was willing to accept responsibility.
              “The Court: The court disagrees with that last statement.
              “[Defendant’s Counsel]: Very well. I don’t believe—and if I can just
make my objections. I don’t believe judicial efficiency was found by having both parties
go to trial. We would have had a shorter trial. My client was willing to accept the deal.
[¶] When we came back the next day to start trial, I laid my series of objections. Then
the court said well, I didn’t think your client was voluntarily taking this deal. He was
showing signs of hesitancy. That’s what the court said right before we started trial. And
that’s when I inquired of the court and said, Your Honor, my client had issues about the
jail, had issues about the time he’s going to have to do. [¶] He—he didn’t go to the issues
of knowing, intelligent[,] voluntary waivers. That was the court’s reasoning before we
started trial, and I laid the rest of my objections when we started trial. [¶] My client
then—strike that. [¶] Before we started trial, I asked the court, if we’re forced to trial,
will the court at least—
              “The Court: Sir, I’m not going to allow you to make this rambling
statement to me. What is your objection?
              “[Defendant’s counsel]: I just have two more minutes.
              “The Court: What’s the objection?”
              After defendant’s counsel and the court briefly discussed whether defendant
was being excessively punished, defendant’s counsel and the court engaged in this final
discussion of the negotiated disposition agreement:
              “[Defendant’s counsel]: I guess my objection is I do feel that there was an
abuse of discretion in not allowing my client to accept the plea bargain, that the
suspended sentence and a year in county jail, the court essentially forced my client to go

                                              14
to trial. He picked up two strikes. He would have had no strikes and he is serving the
same amount of time. [¶] This case could have been resolved if the court would have
accepted our plea bargain. And I object to the court, after the court ruled back then to
say, you know, ‘he was showing signs of hesitancy.’ [¶] In all my practice[] as a criminal
defense attorney, if there are issues of hesitation, generally speaking, the court will
inquire of counsel or the defendant of what the hesitation is and if it’s a knowing,
intelligent[,] voluntary waiver. [¶] I felt that the court took it upon itself to force both
parties to trial, and now my client has to deal with the suspended sentence. [¶] I also felt
that when you asked me about my personal views about the suspended sentence,
obviously my objections were based on the amount of county jail time. I think it is just
excessive punishment. [¶] With that, I submit. We have the previous record obviously.
              “The Court: Sir, I’m not going to allow those statements to remain
uncharged. So I’m just going to now have the final word here.
              “[Defendant’s counsel]: Sure.
              “The Court: First of all, contrary to my previous indicated sentence, I am
not having the defendant waive his credits. Notice, I talked about that. But I’ve changed
my mind on that. [¶] Second of all, that the court always has the authority to decline a
plea bargain especially on the day of trial, and especially in the situation that involves a
serious and violent felony like this. [¶] So to somehow suggest that I have abused my
discretion in this regard, sir, is contrary to the record. [¶] And what you are—what you
are doing, sir, is calling into question the factual findings that I made previously. [¶] You
have made your record on that. [¶] I have not sentenced your client more harshly for the
direct consequences of going to trial than the plea bargain was. If he ends up being
convicted of additional crimes, those were the charged offenses that the defendant was
facing. [¶] Now, back to my question. Jail surrender date, sir?
              “[Defendant’s counsel]: Can I correct the court?
              “The Court: No, you may not, sir.

                                              15
              “[Defendant’s counsel]: The court—
              “The Court: No, you may not, sir.
              “[Defendant’s counsel]: Can I make one comment?
              “The Court: No, you may not, sir. What about my statements—
              “[Defendant’s counsel]: You said—
              “The Court: What about my statements is not clear? I didn’t say—
              “[Defendant’s counsel]: Everything is clear.
              “The Court: Thank you.”


                                              III.

        THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S REJECTION OF THE
         WRITTEN NEGOTIATED DISPOSITION AGREEMENT AGREED TO BY THE
                        PROSECUTION AND DEFENDANT.
              The record does not support the trial court’s rejection of defendant’s written
negotiated disposition agreement. When defendant and Fuentez had each agreed to the
terms of their respective written negotiated disposition agreements as a “package deal,”
the trial court conducted a thorough review on the record of the Tahl forms with
defendant and Fuentez. (At one point, the court accepted Fuentez’s plea and found a
factual basis for his plea.) At no time, before or after trial, did the trial court make any
findings or state that defendant’s written negotiated disposition agreement as set forth on
his Tahl form was unfair or contrary to the public interest.
              Not until Fuentez decided to reject his negotiated disposition agreement,
did the trial court state it would refuse to accept defendant’s written negotiated
disposition agreement. The court also acknowledged to defendant’s counsel that it had
done so because there was no longer a package deal. But that was not the trial court’s
call; indeed, it was the prosecution’s call to determine whether to allow defendant to
plead according to the terms of his written negotiated disposition agreement after Fuentez


                                              16
elected to go to trial, and the prosecution chose to keep its offer to defendant open. We
have found no legal authority supporting the trial court’s rejection of a negotiated
disposition agreement on such a ground.
              The trial court also stated it rejected defendant’s written negotiated
disposition agreement because the court sensed hesitancy on defendant’s part in entering
the plea. But the record does not support any such finding. The reporter’s transcript
shows that defendant asked his attorney questions during the hearing on the written
negotiated disposition agreement, but does not show that defendant’s assent to the terms
of the written negotiated disposition agreement was anything other than voluntary,
intelligent, and knowing. Although defendant’s counsel told the court that defendant was
not hesitant and wished to enter the plea in accordance with the written negotiated
disposition agreement, the court did not question defendant or counsel on this issue.
              In addition, the trial court stated that it was within the court’s discretion to
reject a negotiated disposition agreement on the date set for trial, even though the court
had been willing to accept a negotiated disposition agreement the afternoon before, which
actually was the date set for trial. Furthermore, the record shows the court had also been
willing to accept the written negotiated disposition agreement as to defendant on the date
set for trial only if Fuentez had also accepted the agreement that had been offered to him.
At the first hearing on the agreement, the court told Fuentez, defendant, and their
respective attorneys that “the court would accept no more negotiated pleas once [the
court] order[ed] the jury panel.” According to the record, the jury panel had not been
ordered at the time the court rejected defendant’s written negotiated disposition
agreement.
              In the respondent’s brief, the Attorney General argues the trial court would
have had to reject the proffered negotiated disposition agreement because it was illegal
under section 1192.7, subdivision (a). But we cannot presume the trial court would have
made such a determination. (In re Alvernaz, supra, 2 Cal.4th at pp. 941-942, fn. 10 [“Our

                                              17
refusal to create a presumption of judicial approval of plea bargains applies to plea
bargains subject to the proscriptions of section 1192.7, as well as to all other types of plea
bargain”].)
              Based on the record before us, we conclude the trial court abused its
discretion by rejecting defendant’s change of plea in accordance with defendant’s written
negotiated disposition agreement. We note that the court and counsel made a good
record of the proceedings, sufficient for appellate review.


                                             IV.

    UNDER THE CIRCUMSTANCES OF THIS CASE, THE APPROPRIATE REMEDY FOR THE
       TRIAL COURT’S ERROR IN FAILING TO ACCEPT DEFENDANT’S WRITTEN
         NEGOTIATED DISPOSITION AGREEMENT IS SPECIFIC ENFORCEMENT.
              We now turn to the issue of the appropriate remedy. In In re Alvernaz,
supra, 2 Cal.4th at page 942, the California Supreme Court considered the appropriate
remedy when the defendant’s counsel had been ineffective for failing to communicate a
plea bargain offer to the defendant. Citing, inter alia, People v. Mancheno (1982) 32
Cal.3d 855, 861, the California Supreme Court stated, “California courts, however,
generally disfavor the remedy of specific enforcement of a failed plea bargain” when it
                                                                                 10
will limit the judge’s sentencing discretion. (In re Alvernaz, supra, at p. 942.)
              In People v. Mancheno, supra, 32 Cal.3d at pages 860-861, the Supreme
Court stated: “The usual remedies for violation of a plea bargain are to allow defendant
to withdraw the plea and go to trial on the original charges, or to specifically enforce the
plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when
specifically enforcing the bargain would have limited the judge’s sentencing discretion in
light of the development of additional information or changed circumstances between
       10
         The court noted, “[s]pecific enforcement of a failed plea bargain is not a
remedy required by the federal Constitution.” (In re Alvernaz, supra, 2 Cal.4th at
p. 942.)

                                             18
acceptance of the plea and sentencing. Specific enforcement is appropriate when it will
implement the reasonable expectations of the parties without binding the trial judge to a
disposition that he or she considers unsuitable under all the circumstances.”
              The Supreme Court further explained: “‘Specific enforcement of a plea
bargain agreement is actually a broad term covering several different types of relief. The
remedy differs depending upon the nature of the breach and which party is seeking
specific enforcement. When the breach is a refusal by the prosecutor to comply with the
agreement, specific enforcement would consist of an order directing the prosecutor to
fulfill the bargain. When the breach is a refusal by the court to sentence in accord with
the agreed upon recommendation, specific enforcement would entail an order directing
the judge to resentence the defendant in accord with the agreement. The People as well
as a defendant may seek such specific enforcements. The effect is to limit the remedy to
an order directing fulfillment of the bargain. In such instances, the defendant is not
allowed to withdraw his guilty plea.’” (People v. Mancheno, supra, 32 Cal.4th at p. 861.)
              Here, the trial court did not determine the terms of defendant’s written
negotiated disposition agreement as set forth in the Tahl form were unfair or otherwise
against the public interest. Therefore, specific enforcement of defendant’s written
negotiated disposition agreement would not infringe on the trial court’s discretion to
determine such an agreement to be unsuitable. Furthermore, the terms of defendant’s
written negotiated disposition agreement were offered by the prosecution and accepted by
defendant. Under these circumstances, the only remedy that would address the error at
issue in this case is the specific enforcement of defendant’s written negotiated disposition
agreement.




                                             19
                                      DISPOSITION
               The judgment is reversed. On remand, we direct the trial court to accept
defendant’s plea in accordance with the terms of defendant’s written negotiated
disposition agreement contained in our record in the clerk’s transcript at pages 175
through 182.



                                                 FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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