Supreme Court Says Judges May Not ‘Bargain’ Over Sentences

Friday, April 19, 2013

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Supreme Court Says Judges May Not ‘Bargain’ Over Sentences

By KENNETH OFGANG, Staff Writer

The California Supreme Court yesterday laid down guidelines on how far judges can go in using indicated sentences as precursors to guilty or no-contest pleas in criminal cases.

The justices unanimously ordered that a Santa Clara Superior Court judge reconsider a five-year sentence that was imposed on Wesley C. Clancey based on his plea of no contest to charges of forgery, grand theft, false personation, using a stolen access card, burglary, receiving stolen property, resisting and officer and falsely identifying himself to an officer.

Justice Marvin Baxter, writing for the high court, agreed with a divided Sixth District Court of Appeal panel that Clancey may have been the beneficiary of an “unlawful judicial plea bargain.” But the record was sufficiently ambiguous, the justice said, that the trial judge should have the opportunity to reconsider the sentence under the guidelines laid out in the opinion, rather than being reversed outright and ordered to vacate the plea and sentence, as the Court of Appeal ruled.

Clancey entered the plea after Judge Rene Navarro indicated that he would dismiss a prior “strike” allegation and impose the five-year sentence if the defendant changed his plea before the preliminary hearing. Prosecutors objected, noting that as a second-strike offender with an on-bail enhancement, Clancey’s sentence would be between 11 years, four months and 16 years if convicted on all charges.

The prosecution suggested that a sentence of eight to nine years would be appropriate if the defendant changed his plea before the preliminary hearing.

‘Early Resolution’

Navarro explained on the record that Clancey’s case had been placed on the court’s “early resolution calendar” and that he had reviewed “the nature of the case and the facts” and had made “an informed offer” as to what the sentence would be. The judge also noted that the court had the right to withdraw its offer “if there’s anything new that comes up” prior to sentencing, including unanticipated information in the probation report.

Prior to sentencing, the judge found good cause to strike the prior and the on-bail enhancement, noting that the prior conviction was 10 years old, the current offenses were neither serious nor violent, no weapons were involved and no one was injured, and the loss was not excessive.

On appeal, prosecutors argued that Navarro had exceeded the judge’s role by engaging in what amounted to plea negotiations with the defense. They cited People v. Orin (1975) 13 Cal.3d 937, in which the court condemned a process in which the judge, over prosecution objections, dismissed two felony charges based on the defendant’s willingness to plead guilty to a third charge.

Abuse of Discretion

Because the court dismissed charges without setting forth reasons, and because the record did not support a finding that those dismissals were in furtherance of justice, the court said in Orin, the judge abused his discretion.

Baxter, however, noted that there was no dismissal of any charge in Clancey’s case, and that the judge stated his reasons for dismissing enhancements.

The justice explained, though, that in order to avoid crossing the line between the charging function of the district attorney and the sentencing function of the court, the following guidelines must be adhered to:

•The judge “generally should refrain from announcing an indicated sentence while the parties are still negotiating a potential plea bargain,” lest he or she be dragged into the “horse trading” that is the primary means of disposing of criminal cases.

•A proposed sentence should not be indicated unless the court has an adequate record before it “to make a reasoned judgment as to the appropriate penalty.”

•The court must not offer an inducement to plead guilty or no-contest, so that “the indicated sentence must be the same punishment the court would be prepared to impose if the defendant were convicted at trial;” and the only benefit from entering the plea would be elimination of the uncertainty as to what the sentence would be if the court were to change its mind based upon facts that might come to light later in the process.

•The judge “may not bargain with a defendant over the sentence to be imposed.”

‘Clear Statement’

Applying those standards to the record before the high court, Baxter said, the court could not determine which side of the line Clancey’s sentence fell on. “What is missing,” he wrote, “is a clear statement, whether made by the court or otherwise discernible from the record, that the court’s indicated sentence reflected its best judgment as to the appropriate sentence based on defendant’s criminal history and his current offenses and regardless of whether defendant was convicted by plea or at trial.”

Baxter added that an indicated sentence may contemplate an exercise of discretion, such as the dismissal of charges under Penal Code Sec. 1385 or the dismissal of a prior “strike,” as long as the judge states sufficient reasons for the dismissal.

The decision expressly left open the question as to whether a defendant has the right to withdraw a plea if the judge later decides not to impose the indicated sentence.

The case is People v. Clancey, 13 S.O.S. 1912.