Filed 11/4/13
                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D062445

        Plaintiff and Respondent,
                                                 (Super. Ct. No. SCN274849)
        v.

GLEN THEODORE LETTICE,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Daniel P.

Goldstein, Judge. Reversed and remanded with directions.

        Law Office of Michael Perry Goldstein and Michael Perry Goldstein, 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, Senior Assistant Attorney General, Steve Oetting and Andrew

Scott Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       California law provides that after a defendant has entered a plea to an information,

the People must "obtain court approval" prior to filing an amended information alleging

previously uncharged prior felony convictions. (People v. Valladoli (1996) 13 Cal.4th

590, 606, fn. 3 (Valladoli); see Pen. Code, § 969a1 ["if such amendment is made it shall

be made upon order of the court" (italics added)].)2 "[A] court, in its discretion, may

choose to deny permission to amend." (Valladoli, supra, at p. 606, fn. 3 (italics added).)

Further, in order to ensure that "the due process rights of criminal defendants are

adequately protected" (id. at p. 607), a trial court that is considering whether to permit a

post-plea amendment should consider several factors, including: the reason for the late

amendment, whether the defendant is surprised by the attempted amendment, and

whether the prosecution's initial failure to allege the prior convictions affected the

defendant's decisions with respect to plea bargaining. (Id. at p. 608.)

       In the original information that was filed in this case, the People charged Glenn

Theodore Lettice with three violations of the Vehicle Code. The information also

contained several enhancement and prior felony conviction allegations. Lettice pled



1     Unless otherwise specified, all subsequent statutory references are to the Penal
Code.

2      Prior to the defendant's entry of a plea to the original accusatory pleading, the
People may file an amended complaint without leave of court. (See § 1009 ["an amended
complaint may be filed by the prosecuting attorney, without leave of court at any time
before the defendant pleads or a demurrer to the original pleading is sustained"].)
                                              2
guilty to one count of driving with a blood alcohol level of .08 percent causing bodily

injury (Veh. Code, § 23153, subd. (b)), admitted certain enhancement allegations, and

also admitted having suffered a prison prior and a single prior strike conviction. Lettice

entered his guilty plea pursuant to a written plea agreement that provided that the

maximum punishment that he could receive as a result of his plea was 14 years, but that

the trial court had indicated that it would impose a sentence of eight years in prison. As

part of the plea agreement, the People agreed to dismiss the balance of the charges and

enhancement allegations in the information.

       On the day set for sentencing, the trial court began the hearing by announcing,

"There is an amended information." The court explained, "[T]he People believe that the

defendant has a strike prior from New Jersey in 1976." The amended information added

a fourth count charging an additional Vehicle Code violation, and alleged that Lettice had

suffered two prior strike convictions. Later during the hearing, the People made an oral

motion to withdraw from the plea agreement. The trial court stated that it would defer

ruling on the motion because it wanted to "hear from both sides," since, according to the

court, "there may be an issue of notice." The court also stated that it wanted to "make

sure there's no estoppel here and there's no jeopardy." The trial court added that if the

People were going to seek to withdraw their assent to the plea agreement, they would be

required to "file papers," and expressed its view that defense counsel had "a decent

argument . . . about notice . . . that really needs to be considered." The court ended the

hearing by stating, "[T]here's a difference between withdrawing the plea or demanding to

withdraw the plea and a statutory right to add the strike after the plea." At a subsequent

                                              3
hearing, Lettice pled guilty to the amended information and the trial court sentenced him

to a stipulated sentence of 14 years in prison.

       On appeal, Lettice claims that the People failed to obtain court approval prior to

filing the amended information.3 In support of this claim, Lettice argues that the record

demonstrates that the trial court was unaware that it was within the court's discretion

whether to permit the filing of the amended information. We conclude that the record

indicates that the trial court was not aware that it was within the court's discretion

whether to permit the filing of the amended information, and that the court did not

exercise its discretion with respect to the matter. We further conclude that reversal is

required because there is a reasonable probability that the court would have exercised its

discretion to deny leave to amend. We reverse and remand to permit the trial court to

exercise its discretion.

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The original complaint, the amended complaint, and the original information

       In April 2010, the People filed a four-count complaint charging Lettice with

driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)) (count

1), driving with a blood alcohol level of .08 percent causing bodily injury (Veh. Code,

§ 23153, subd. (b)) (count 2), leaving the scene of an accident involving an injury (Veh.



3      In his opening brief, Lettice also raised a claim pertaining to the sufficiency of the
evidence pertaining to a victim restitution order entered in the trial court. However,
Lettice expressly withdrew that claim in his reply brief.
                                              4
Code, § 20001, subd. (a)) (count 3), and driving with a suspended license (Veh. Code,

§ 14601.2, subd. (a)) (count 4). As to counts 1 and 2, the People alleged that Lettice had

caused bodily injury to more than one victim (Veh. Code, § 23558) and that he had

suffered a conviction for driving under the influence within the previous 10 years (Veh.

Code, §§ 23626, 23540.) The People also alleged that Lettice had suffered a prison prior

(§ 667.5, subd. (b)) stemming from a 2008 conviction, and a strike prior (§§ 667, subds.

(b)-(i), 1170.12) based on a 1986 conviction.

       In June 2010, the People amended the complaint to add great bodily injury

enhancement allegations (§ 12022.7, subd. (a)) with respect to counts 1 and 2. The

People also deleted count 3, which had charged Lettice with leaving the scene of an

accident involving an injury. In August 2010, the trial court conducted a preliminary

hearing and held Lettice to answer on all remaining counts and allegations. The

following month, the trial court arraigned Lettice on an information that contained the

same counts and allegations as the July 2010 amended complaint. Lettice pled not guilty

to all counts and denied all allegations.

B.     The first plea agreement and Lettice's first guilty plea

       On February 17, 2011, Lettice entered into a plea agreement pursuant to which he

agreed to plead guilty to one count of driving with a blood alcohol level of .08 percent

causing bodily injury (Veh. Code, § 23153, subd. (b)) (count 2). Lettice also agreed to

admit to a multiple victim enhancement allegation (Veh. Code, § 23558) and two great

bodily injury enhancement allegations (§ 12022.7, subd. (a)). In addition, Lettice agreed

to admit that he had suffered a prison prior (§ 667.5, subd. (b)) and a strike prior (§§ 667,

                                              5
subds. (b)-(i), 1170.12). The plea agreement further provided that the trial court had

indicated that it would impose a sentence of eight years in prison. Although the change

of plea form states, "No [d]eals [with the] People," the agreement also states "dismiss

balance" and is signed by the prosecutor. The change of plea form states that Lettice was

aware that he could receive a maximum sentence of 14 years in prison as a result of his

plea. That same day, the trial court held a hearing, accepted Lettice's guilty plea, and,

upon the People's motion, dismissed the balance of the charges against Lettice.

C.     The amended information and related proceedings

       On May 3, 2011, the date set for sentencing, the trial court began the hearing by

stating the following:

          "Okay. There is an amended information. We've talked about this
          in chambers. It appears the People believe that the defendant has a
          strike prior from New Jersey in 1976."

       In addition to the counts and allegations contained in the original information, the

amended information added one count of leaving the scene of an accident involving an

injury (Veh. Code, § 20001, subd. (a)) (count 4)4 and alleged an additional strike prior

(§§ 667, subds. (b)-(i), 1170.12) that had not previously been charged, premised on a

1976 New Jersey armed robbery juvenile adjudication.

       After noting the fact that there was an amended information, the court stated, "For

any reviewing court[,] this is post-plea that this was discovered. I believe, Mr.

[Prosecutor], . . . that this was discovered by you actually by reading the probation


4     As noted previously, in the original complaint, the People charged Lettice with
one count of leaving the scene of an accident involving an injury.
                                              6
report." After the prosecutor responded in the affirmative, the court asked defense

counsel whether she was willing to have the court arraign Lettice on the amended

information. Defense counsel objected and requested that the arraignment take place at a

later date.

       The prosecutor argued that Lettice should be arraigned that same day, stating, "I

don't see any basis to delay." The prosecutor continued, "I can show counsel and the

court the prior that I dug up this morning. And it appears to be that we have enough here

to prove the armed robbery prior."

       The court interjected:

              "Yeah, I don't doubt that. As a matter of fact as you both talked to
              me in chambers[, the prior conviction] was on the pre-trial services
              report.[5] It doesn't list it as a strike, but it lists the offense. And
              looking at the offense one would conclude or could reasonably
              assume that it is a strike.

              "So what I can do, Ms. [Defense Counsel], is allow you leave . . . to
              demur. But I'm going to request that you arraign [sic] your client."

       Defense counsel responded:

              "Yes, your honor. We have a copy of the amended information. . . .
              We . . . enter a plea of not guilty, deny any and all allegations."

       The trial court then stated the following:

              "All right. That plea and denial as to—really the only additional
              issue we're talking about here, or the amendment, is robbery while
              armed, labeled as the 'first strike prior.' The defendant had admitted
              the second strike prior already . . . .


5       The record contains a document dated March 2010 pertaining to Lettice entitled
"San Diego County Superior Court Pretrial Services." In a section of the document
entitled "Felony Convictions" the document states "Aggrav Asslt/Robbery ('76) - NJ."
                                                  7
            "The defendant had already pled to the substantive charge with the
            People dismissing [the balance of the charges], but since, again, the
            defendant was [not yet] sentenced, at this point I'm going to accept
            the plea of not guilty as to the amended allegation."

       At this point, the People moved to withdraw their assent to the prior plea

agreement. The court stated that it would defer ruling on the People's motion because

there were issues that had to be "address[ed]" including whether the People should be

estopped from withdrawing from the plea agreement, and whether Lettice had been

provided proper notice of the charges and allegations contained in the amended

information.

       The court proceeded to set a readiness hearing for May 12, and advised Lettice

that he had a right to a speedy trial within 60 days "on all substantive charges assuming

the People's motion is granted." After obtaining Lettice's waiver of that right, the court

set a tentative trial date in August 2011.

       Just prior to the conclusion of the hearing, the prosecutor asked whether he should

file a motion to withdraw from the plea agreement by May 12. The following colloquy

followed:

            "The court: Yeah . . . if the way you want to proceed is to completely
            withdraw this plea, then, yeah, . . . you have to file papers. But I
            really want you all to consider whether you can do it, not just, you
            know, gut decision, boom, I want to withdraw the plea. [¶] I mean
            [defense counsel] has a decent argument here about notice that I
            think really needs to be considered.

            "[The prosecutor]: Okay.

            "The court: There's a difference—just so any reviewing court is
            clear, there's a difference between withdrawing the plea or

                                              8
          demanding to withdraw the plea and a statutory right to add the
          strike after the plea."

       On May 12, the court continued the readiness hearing date to May 16. On May

16, a retained attorney appeared on Lettice's behalf and the court again continued the

readiness hearing.6 The May 16 minute order states, "The People's offer of 14 years is

good through today. After today it is revoked."

D.     The second plea agreement and Lettice's second guilty plea

       On May 24, Lettice entered into a new plea agreement pursuant to which he

agreed to plead guilty to the same charge, injury allegations, and prison and strike prior

allegations as contained in the February 17 plea agreement, in exchange for a stipulated

sentence of 14 years in prison. That same day, the trial court accepted Lettice's guilty

plea, and, on the People's motion, dismissed the balance of the charges against Lettice,

including the second strike prior allegation premised on the 1976 juvenile adjudication.

       In July 2011, the trial court sentenced Lettice to the stipulated term of 14 years in

prison, consisting of the upper term of three years on count 27 (Veh. Code, § 23153,

subd. (b)), doubled to six years due to the strike prior (§§ 667, subds. (b)-(i), 1170.12),

plus two additional consecutive terms of three years for each great bodily injury

enhancement (§ 12022.7, subd. (a)), plus an additional one-year consecutive term for the

multiple victim enhancement (Veh. Code, § 23558), and an additional one-year

consecutive term for the prison prior (§ 667.5, subd. (b)).

6      Prior to May 16, a public defender represented Lettice.

7      In sentencing Lettice, the trial court incorrectly referred to the count as count 1.
                                              9
E.     Lettice's appeal

       The trial court received Lettice's late notice of appeal in May 2012. This court

granted Lettice's request to have his notice of appeal deemed to have been constructively

filed within the statutory time period for filing a notice of appeal. In September 2012, the

trial court granted Lettice a certificate of probable cause.

                                             III.

                                       DISCUSSION

       On appeal, Lettice claims that the trial court failed to exercise its discretion in

determining whether to permit the filing of the amended information, as is required

pursuant to section 969a and Valladoli, supra, 13 Cal.4th 590.8




8       Lettice maintains that this court may review the purported error, notwithstanding
his trial counsel's failure to object to the filing of the amended information, on various
grounds, including that his claim raises a pure question of law. In the alternative, Lettice
contends that his trial counsel rendered ineffective assistance in failing to object.
        Lettice also argues that he may raise this claim on appeal, despite the fact that he
entered a guilty plea, because his claim raises a "reasonable constitutional, jurisdictional,
or other grounds going to the legality of the proceedings." (§ 1237.5 [specifying
requirements for obtaining a certificate of probable cause in order to take an appeal after
a guilty plea].) The People address Lettice's claims on the merits and do not contend that
his claim is procedurally barred for lack of proper objection or due to Lettice's plea of
guilty.
        We exercise our discretion to consider Lettice's claim on the merits despite any
possible forfeiture for failure to object in the trial court. (See People v. Williams (1998)
17 Cal.4th 148, 161, fn. 6 [appellate court has discretion to consider claims that are not
properly preserved for review].) We further conclude that Lettice may prosecute this
appeal notwithstanding his guilty plea because he obtained a certificate of probable cause
in the trial court and the appeal does not raise "[i]ssues concerning [his] guilt or
innocence." (People v. Voit (2011) 200 Cal.App.4th 1353, 1364.)
                                              10
A.     Standard of review

       Ordinarily, a trial court's decision whether to permit the filing of an amended

information to allege an additional prior felony conviction is reviewed for an abuse of

discretion. (See Valladoli, supra, 13 Cal.4th at p. 606, fn. 3.) However, it is well

established that "a failure to exercise discretion is an abuse of discretion." (People v.

Orabuena (2004) 116 Cal.App.4th 84, 99.)

B.     Governing law

       Under section 1009, the People may amend an information without leave of court

prior to entry of a defendant's plea, and the trial court may permit an amendment of an

information at any stage of the proceedings. Section 1009 provides in relevant part:

          "An indictment, accusation or information may be amended by the
          district attorney, and an amended complaint may be filed by the
          prosecuting attorney, without leave of court at any time before the
          defendant pleads or a demurrer to the original pleading is sustained.
          The court in which an action is pending may order or permit an
          amendment of an indictment, accusation or information, or the filing
          of an amended complaint, for any defect or insufficiency, at any
          stage of the proceedings, or if the defect in an indictment or
          information be one that cannot be remedied by amendment, may
          order the case submitted to the same or another grand jury, or a new
          information to be filed."

       Section 969a, which specifically addresses the amendment of an information to

add allegations of prior felony convictions, provides as follows:

          "Whenever it shall be discovered that a pending indictment or
          information does not charge all prior felonies of which the defendant
          has been convicted either in this State or elsewhere, said indictment
          or information may be forthwith amended to charge such prior
          conviction or convictions, and if such amendment is made it shall be
          made upon order of the court, and no action of the grand jury (in the
          case of an indictment) shall be necessary. Defendant shall promptly

                                             11
          be rearraigned on such information or indictment as amended and be
          required to plead thereto."9

       In Valladoli, supra, 13 Cal.4th 590, after a jury had rendered a verdict on several

substantive charges, but prior to the jury's discharge, a prosecutor requested permission to

file an amended information alleging several prior felony convictions. (Id. at pp. 595-

596.) The prosecutor explained that the priors had been alleged in the complaint but had

not been "transcribed correctly" onto the information. (Ibid.) Defense counsel objected

to the filing of the amended information, but the "the trial court permitted the prosecutor

to amend the information with the priors." (Id. at p. 596.)




9      Section 969.5 is a "parallel statue" (Valladoli, supra, 13 Cal.4th at p. 601) that
applies where a defendant has pled guilty to a complaint before a magistrate. (Ibid.
[discussing former § 969 1/2, a predecessor statute to § 969.5 that is similar in all
material respects to § 969.5]) Section 969.5 provides in relevant part:

          "(a) Whenever it shall be discovered that a pending complaint to
          which a plea of guilty has been made under Section 859a does not
          charge all prior felonies of which the defendant has been convicted
          either in this state or elsewhere, the complaint may be forthwith
          amended to charge the prior conviction or convictions and the
          amendments may and shall be made upon order of the court."

        Although both former section 969 1/2 and section 969.5 expressly refer to a
"pending complaint," and the amendment of a "complaint" (italics added), the Supreme
Court has, without analysis, suggested that the statutes permit the amendment of an
information. (See Valladoli, supra, 13 Cal.4th at p. 602 ["Had defendant pleaded guilty
before the magistrate under section 859a, however, the express terms of section 969
would have permitted the People to amend the information to charge his prior convictions
after the guilty plea"]; People v. Tindall (2000) 24 Cal, 4th 767, 778 (Tindall) ["if a
defendant pleads guilty or nolo contendere, the prosecution may, on the court's order,
amend the information to add previously unalleged prior convictions until sentencing"
(italics added), citing § 969.5, subd. (a) and Valladoli].)
                                             12
       On appeal, the defendant claimed that the trial court lacked discretion to permit the

filing of the amended information. Defendant argued that only a "pending . . .

information" (§ 969a (italics added)) may be amended pursuant to section 969a, and that

an information is "no longer 'pending' when the jury has finished its deliberations and

returned a verdict." (Valladoli, supra, 13 Cal.4th at p. 597.) The Valladoli court rejected

the defendant's argument, and held that section 969a permits a trial court to exercise its

discretion to allow the People to amend an information to include prior felony conviction

enhancement allegations "when (i) the jury has already rendered a verdict for the

substantive crimes charged in the information, but (ii) the jury has not yet been

discharged." (Valladoli, supra, at p. 594.)10

       The Valladoli court also rejected the defendant's argument that section 969a

permits the filing of an amended information only where the People were previously

unaware of the prior felony conviction. (Valladoli, supra, 13 Cal.4th at p. 605.) The

Valladoli court held that the statute was "broad enough to encompass: (i) amendment to

charge prior felony convictions that were previously known; (ii) amendment to charge

newly discovered prior felony convictions; and (iii) amendment to charge prior felonies

omitted through clerical error . . . ." (Id. at p. 606.)




10      In Tindall, supra, 24 Cal.4th at pages 769-770, the Supreme Court decided the
"question left open in [Valladoli, supra, 13 Cal.4th at page 608, footnote 4]," holding that
it is generally impermissible for the People to file a postverdict amendment to an
information to add prior conviction allegations after a jury has been discharged.
                                               13
       However, the Supreme Court made it clear that a trial court must approve the

filing of the amended charging document, and that it is within the trial court's discretion

to deny leave to amend. In this regard, the Valladoli court stated:

          "One limitation on the prosecutor's power to amend the information
          to charge previously uncharged prior felony convictions is he or she
          must obtain court approval. Section 969a states such amendment
          'shall be made upon order of the court.' Thus, a court, in its
          discretion, may choose to deny permission to amend. [Citations.]"
          (Valladoli, supra, 13 Cal.4th at p. 606, fn. 3.)

       The Valladoli court also considered the defendant's claim that the trial court's act

in permitting the prosecutor to amend the information to charge prior felony convictions

after the jury had returned its verdict constituted a violation of his due process rights

under the state and federal constitutions. In analyzing this claim, the Valladoli court

noted that it was not required to consider whether section 969a and principles of due

process permitted a prosecutor to intentionally delay charging a prior felony conviction

enhancement, stating:

          "[A]s the omission of priors from the information in this case was
          apparently due to a clerical error, we need not decide whether it
          would be permissible for a prosecutor intentionally to delay charging
          prior felony conviction enhancements until after the verdict. Such a
          prosecutorial decision would raise additional issues of statutory
          interpretation, as well as ethical considerations not presented on the
          facts of this case. Moreover, such a prosecutorial decision obviously
          carries the potential to have an unfair and detrimental impact on an
          accused's trial tactics and would change significantly the evaluation
          of the due process issue." (Valladoli, supra, 13 Cal.4th at p. 607; see
          also id. at p. 611 (conc. opn. of Mosk, J.) ["A prosecutor who
          deliberately delays charging the prior felony cannot be said to have
          'discovered' that the prior conviction charges were omitted after the
          filing of the original information, and an amendment pursuant to
          such an intentional withholding of prior felony allegations cannot be
          authorized by section 969a"].)

                                              14
       The Valladoli court also noted that the fact that section 969a permits the trial court

to deny a request by the People to file such an amendment assuaged due process concerns

related to belated amendments.

          "Section 969a expressly gives discretion to our trial judges to permit
          or deny the amendment [citation], and we rely in such matters on the
          prudent exercise of that discretion to ensure the due process rights of
          criminal defendants are adequately protected. In exercising such
          discretion, courts should scrutinize (i) the reason for the late
          amendment, (ii) whether the defendant is surprised by the belated
          attempt to amend, (iii) whether the prosecution's initial failure to
          allege the prior convictions affected the defendant's decisions during
          plea bargaining, if any, (iv) whether other prior felony convictions
          had been charged originally, and (v) whether the jury has already
          been discharged [citation]. This list, of course, is intended to be
          illustrative rather than exhaustive, and we reiterate the matter is best
          left to the discretion of our trial judges." (Valladoli, supra, 13
          Cal.4th at pp. 607-608, fn. omitted.)

       The Supreme Court proceeded to apply these factors and concluded that the

defendant's due process rights in that case had not been violated. The Valladoli court

noted that the defendant had not been surprised by the new allegations,11 and that

"nothing in this case suggests the prosecution intentionally held back the prior felony

conviction allegations to gain some tactical advantage, or that the delay had a detrimental




11      The Valladoli court noted that the prior conviction allegations had been included
in the original complaint but that, due to an apparent clerical error, they had not been
included in the information. (Valladoli, supra, 13 Cal.4th at pp. 607-608.)

                                             15
impact on defendant's decision to accept an offered plea." (Valladoli, supra, 13 Cal.4th

at p. 608.)12

C.     Application

       It is undisputed that the record does not contain an express order of the court

authorizing the filing of the amended information. (See § 969a ["if such amendment is

made it shall be made upon order of the court"].) Rather, at the outset of the hearing set

for sentencing, the trial court merely announced, "There is an amended information."

       Further, while the People repeatedly assert in their brief that the trial court

"permitted the prosecution to amend the information,"13 there is nothing in the record




12      As is clear from our recitation of the procedural posture in Valladoli, the question
that the Supreme Court addressed was whether the People could file an amended
information after a jury had rendered its verdict in a trial. Further, while in enumerating
the factors that a trial court should consider in determining whether to permit the filing of
an amended information, the Valladoli court referred to the potential detrimental effect
that a proposed late amendment might have made with respect to the "defendant's
decisions during plea bargaining" (Valladoli, supra, 13 Cal.4th at p. 607), the Valladoli
court did not hold that the People may seek to file an amended information after having
entered into a plea agreement. In referring to a "defendant's decisions during plea
bargaining" (ibid.), it appears the Valladoli court was referring to a hypothetical
defendant who has rejected a proposed plea agreement based on the state of the then
current charges, and proceeded to trial (as in Valladoli). In this case, in contrast, Lettice
entered into a plea agreement with the People, only to have the People later seek to file
an amended information that realleged some of the dismissed charges as well as a new
prior strike conviction. Neither the Valladoli court, nor any other court of which we are
aware, has considered whether the People may file an amended information after having
entered into a plea agreement to resolve the case. However, Lettice has not argued on
appeal that the People are precluded from filing an amended information under these
circumstances. Accordingly, for purposes of this opinion only, we must assume, and
specifically are not deciding, that a trial court may exercise its discretion to permit the
People to file an amended information pursuant to section 969a even after the People
have entered into a plea agreement to resolve the case.
                                              16
that would support this assertion. The record does not demonstrate that the prosecutor

requested the trial court's approval prior to filing the amended information, and the court

did not state on the record that it was permitting the filing of the amended information.

Nor did the trial court refer to section 969a or to any of the Valladoli factors that our

Supreme Court has stated a trial court "should scrutinize" before permitting such an

amendment, in order to ensure the defendant's statutory and constitutional rights are

protected. (Valladoli, supra, 13 Cal.4th at p. 607.) Perhaps most tellingly, the trial court

expressly (and erroneously) stated that the People had "a statutory right to add the strike

after the plea." (Italics added.)

       The trial court also made several statements on the record that indicate that the

court may well have barred the filing of the amended information if it had been aware

that it was within the court's discretion to do so. The trial court observed that the

circumstances of the filing of the amended information in this case raised both estoppel

and notice concerns. The court deferred ruling on the People's oral motion to withdraw

their assent to the February 17 plea agreement, stated that the People instead would be

required to file a written motion if the People desired to withdraw their assent to the

February 17 plea agreement, and admonished the prosecutor to consider carefully




13     The People also argue, "While not expressly acknowledging section 969a or
969.5, by allowing the amended information to be filed, the amendment was 'by order of
the court.' "
                                              17
whether he wished to pursue such a motion because defense counsel had a "decent

argument" regarding notice that the court would have to consider.14

       This case is thus distinguishable from the silent record at issue in People v.

Loggins (1955) 132 Cal.App.2d 736 (Loggins), which the People cite in support of their

position. In Loggins, the Court of Appeal rejected a defendant's contention that a pretrial

amendment of an information to include a prior felony conviction was improper and

deprived him of his constitutional rights. (Id. at p. 738.) The Loggins court reasoned,

"The amended information here was filed in open court and is presumed to have been

filed pursuant to leave of court, although the minutes of the court do not so state." (Ibid.)

In this case, as summarized above, the trial court expressly, and erroneously, stated that

the People had a statutory right to file the amended information, and proceeded to make

numerous statements on the record that indicate that the court might have denied leave to

amend the information if it had been aware that it was within the court's discretion to do

so. We cannot presume that the trial court engaged in the required "prudent exercise of

[its] discretion [under section 969a]" necessary to ensure that Lettice's due process rights

were adequately protected (Valladoli, supra, 13 Cal.4th at p. 607), in light of a record that

demonstrates that the trial court clearly believed it had no such discretion.




14     The People never filed a motion to withdraw from the February 17 plea agreement
and the trial court never vacated the February 17 plea or plea agreement. Instead, as
noted previously, on May 16, the People made an "offer of 14 years," and indicated that
the offer would be available for one day only. Lettice accepted the 14-year offer and
entered a second plea of guilty on May 24.
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       The record reflects that the People failed to obtain court approval prior to filing the

amended information, and that the court filed the amended information under the

misimpression that it was required to do so. We conclude that reversal is required

because there is a reasonable probability that the court would have exercised its

discretion to deny leave to file the amended information. (See S.T. v. Superior Court

(2009) 177 Cal.App.4th 1009, 1016 [stating that "[a] trial court's failure to exercise its

discretion generally requires reversal," and that "[a]ffimance is possible only if the

appellate court can conclude the appellant suffered no prejudice either because it would

have been an abuse of discretion to rule in the appellant's favor [citation] or because it is

not reasonably probable that the appellant would have obtained a more favorable result

had the court exercised its discretion"].)

D.     A remand is required

       Lettice argues that no remand is required because the record demonstrates that the

"only appropriate exercise of discretion would be to deny leave to amend." We agree

with Lettice that an application of many of the Valladoli factors to the current record

weigh heavily in favor of denying leave to amend: the People offered no compelling

reason for the late amendment, it appears that Lettice was likely completely surprised by

the belated amendment on the day set for sentencing, and there is some evidence that the

prosecution's failure to allege the second strike may have affected Lettice's plea

bargaining strategy. In addition to these factors (see Valladoli, supra, 13 Cal.4th at p.

607 [enumerated list of factors "is intended to be illustrative rather than exhaustive"]), we

would add that the People attempted to file an amended information after having entered

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into a plea agreement to resolve this case. In our view, this fact counsels strongly against

permitting the filing of such an amendment.15 In addition, given that the prior felony

conviction was listed on a March 2010 "pre-trial services" report that the prosecutor

presumably received at that time, more than a year before the People filed the May 2011

amended information, there is considerable evidence of the prosecution's lack of

diligence in "discover[ing]" (§ 969a) that the information did not charge all prior

felonies.16

       However, since the issue was not litigated in the trial court, we cannot conclude

that it would necessarily be an abuse of discretion in this case for the trial court to allow

leave to amend. Accordingly, the proper course is to reverse the judgment and remand

15      "When a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts . . . both parties, including the state, must abide by the terms of
the agreement." (People v. Walker (1991) 54 Cal.3d 1013, 1024.) In this case, in the
February 17 plea agreement, the People agreed to dismiss the balance of the charges in
the original information in exchange for Lettice's guilty plea. After Lettice waived his
constitutional right to trial and his attendant constitutional rights and pled guilty pursuant
to this agreement, and the balance of the charges had been dismissed, the People filed an
amended information that realleged the dismissed charges.
        While Lettice alludes to a prosecutor's duties during plea bargaining in his reply
brief, he does not specifically contend in his opening brief that the People's filing of the
amended information in this case breached the February 17 plea agreement.
Accordingly, we express no opinion as to these issues, nor do we express any opinion as
to what the proper remedy would be if a court were to conclude that the People breached
the February 17 plea agreement and/or violated Lettice's constitutional rights by filing the
amended information.

16      The Valladoli court stated that it was not deciding whether "it would be
permissible for a prosecutor intentionally to delay charging prior felony conviction
enhancements." (Valladoli, supra, 13 Cal.4th at p. 607.) Lettice contends that "it is not
clear that an improper tactical advantage was the goal of not filing sooner, but one was
certainly sought in the last-minute reversal of an apparent decision to not charge two
prior strikes [initially]." The trial court may consider this issue on remand.
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the matter to the trial court to permit that court to exercise its discretion in considering

whether to allow the People to file the amended information.

                                              IV.

                                       DISPOSITION

       The judgment is reversed. The May 24, 2011 plea agreement and the May 24,

2011 plea are vacated. The matter is remanded to the trial court with directions to

exercise its discretion to decide whether to permit the People to file the amended

information.17

       If the trial court denies the People leave to file the amended information, the court

shall resentence Lettice in accordance with the February 17, 2011 plea and plea

agreement. If the court grants the People leave to file the amended information, the court

shall vacate the February 17, 2011 plea and plea agreement and permit the People to file

the amended information. The trial court shall thereafter conduct any further necessary

proceedings in accordance with the law.18

                                                                         AARON, J.

WE CONCUR:

        McDONALD, Acting P. J.
        O'ROURKE, J.

17      In light of the trial court's failure to exercise its discretion regarding whether to
permit the People to file the amended information, we conclude that the proper remedy is
to restore the case to the procedural posture as of the time of the trial court's error.

18      We emphasize that we are not requiring that the case proceed to trial. If the trial
court permits the filing of the amended information, the People and Lettice may enter
into a new plea agreement.
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