Penal Code section 1385, subdivision (a) (hereafter Penal Code section 1385(a)), provides in pertinent part: "The judge or magistrate may ... of his or her own motion ..., and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes...."
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628] (hereafter sometimes Romero), we explained that the "power to dismiss an action," on a trial court's own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), "includes the lesser power to strike ... allegations" or vacate findings "relevant to sentencing, such as the allegation" or finding "that a defendant has prior felony convictions." (13 Cal.4th at p. 504; accord, id. at p. 524, fn. 11.)
In Romero, we proceeded to hold that, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), a trial court may strike an
In this cause, we shall further consider how trial and appellate courts should undertake to rule and review in this area.
On April 19, 1995, in the Superior Court of the County of Los Angeles, the district attorney filed an information against Reginald Eugene Williams.
In a single count, the district attorney charged that, on or about February 9, 1995, Williams committed the felony of driving a vehicle under the influence of an alcoholic beverage and/or a drug — specifically, as was otherwise disclosed, phencyclidine or PCP — in violation of Vehicle Code section 23152, subdivision (a).
In connection therewith, the district attorney made various allegations, including the following.
In order to charge the offense of driving under the influence, which is alternatively a misdemeanor or a felony (see Veh. Code, § 23160 et seq.), as the latter rather than the former, the district attorney alleged, pursuant to Vehicle Code section 23175, that, within the preceding seven years, Williams had suffered three convictions for separate incidents of the same offense, two in 1991 and one in 1992.
In order to enhance any sentence of imprisonment, the district attorney alleged, pursuant to Penal Code section 667.5, subdivision (b), that (1) following a 1982 conviction, Williams served a prior prison term for the felony of rape (id., § 261); (2) following a 1988 conviction, he served a prior prison term for the felony of possession of a firearm by a convicted felon (id., § 12021, subd. (a)(1)); and (3) following a 1989 conviction, he served another prior prison term for another felony of possession of a firearm by a convicted felon.
Lastly, in order to bring the cause within the Three Strikes law, the district attorney alleged, pursuant to that scheme (Pen. Code, §§ 667, subds. (b)-(i),
Arraigned on the information, Williams pleaded not guilty to the charge with a denial of the allegations.
The cause was later called for trial by jury. Prior to trial, Williams moved the superior court, under Penal Code section 17, subdivision (b)(3) (hereafter Penal Code section 17(b)(3)), which authorized it to "declare" an alternative misdemeanor-felony offense to be a misdemeanor when it "grants probation to a defendant without imposition of sentence," to make such a declaration as to the offense of driving under the influence. The People opposed on grounds including that such a declaration was inappropriate in light of the circumstances and, in any event, could not be made prior to sentencing. The superior court denied the motion without prejudice to its renewal after the preparation and submission of a probation officer's report. It continued commencement of trial.
Subsequently prepared and submitted, the probation officer's report described the circumstances of the offense, to the effect that, on the afternoon of February 9, 1995, Williams, who was then 32 years of age, was driving a vehicle on the streets of Los Angeles under the influence of PCP; he was stopped by a police officer; he smelled of the drug, stared blankly, was sweating slightly and grinding his teeth; seven or eight times he was asked by the officer to present his driver's license, and seven or eight times he replied, "How are you doing sir?"; he seemed to be confused, disoriented, and jumpy; he was arrested.
The probation officer's report related Williams's prior record.
As to Williams's juvenile history, so far as it was available, the probation officer's report may be read to reflect the following: (1) a 1976 arrest for burglary (Pen. Code, § 459) with a request for the filing of a petition for an adjudication of wardship (Welf. & Inst. Code, § 602) based on attempted burglary (Pen. Code, §§ 459, 664); (2) another 1976 arrest for burglary with another request for the filing of a wardship petition, this one apparently based on burglary; (3) yet another 1976 arrest for burglary with yet another request for the filing of a wardship petition, this one based on theft (id., § 484); and (4) a 1979 arrest for burglary with a request for a wardship
As to Williams's adult history, the probation officer's report may be read to reflect the following: (1) a 1981 conviction for the misdemeanor of burglary with probation along with commitment to jail; (2) a 1982 conviction for the felony of attempted robbery — as alleged in the information — with probation along with commitment to jail; (3) a 1982 conviction for the felony of rape with commitment to prison — as also alleged in the information — and parole in 1986; (4) a 1987 violation of parole as to the 1982 rape conviction with commitment to prison; (5) a 1988 conviction for the felony of possession of a firearm by a convicted felon with commitment to prison — as alleged in the information; (6) a 1988 violation of parole based on the 1988 firearm-possession conviction with commitment to prison and parole in 1989; (7) a 1989 conviction for the felony of possession of a firearm by a convicted felon with commitment to prison — as alleged in the information; (8) a 1989 violation of parole based on the 1989 firearm-possession conviction with commitment to prison and parole in 1990; (9) a 1990 violation of parole apparently as to the 1989 firearm-possession conviction with commitment to prison and parole in 1991; (10) a 1991 conviction for the misdemeanor of driving under the influence — as alleged in the information — with probation; (11) another 1991 conviction for the misdemeanor of driving under the influence — as also alleged in the information — this one with suspension of driver's license; (12) a 1991 conviction for the misdemeanor of driving with driver's license suspended (Veh. Code, § 14601.1) with probation; (13) a 1992 conviction for the misdemeanor of driving under the influence — as alleged in the information — with commitment to jail and/or imposition of a fine; (14) a 1992 arrest for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) leading, apparently, to revocation of parole as to the 1989 firearm-possession conviction with commitment to prison; (15) a 1995 conviction for the misdemeanor of driving without a driver's license (Veh. Code, § 12500, subd. (a)) with imposition of a fine; (16) a 1995 conviction for the misdemeanor of possession of a controlled substance (Health & Saf. Code, § 11377) with probation along with commitment to jail; and (17) a 1995 conviction for the misdemeanor of willful infliction of corporal injury on a spouse or cohabitant resulting in a traumatic condition (Pen. Code, § 273.5) — so-called "spousal battery" — with commitment to jail.
The probation officer's report recommended that, if Williams were convicted of the felony of driving under the influence, he should, among other things, be denied probation, sentenced to the upper term, and committed to prison. It evaluated him as a "clear and present danger to the community and to himself" because he had "become a habitual traffic offender." It found no circumstances in mitigation. By contrast, it found three circumstances in aggravation: (1) his offense "involved the threat of great bodily harm"; (2) his "prior conviction[s] as a[n] adult are numerous"; and (3) he "has served prior prison terms."
Williams again moved the superior court, impliedly under Penal Code section 17(b)(3), to declare the offense of driving under the influence to be a misdemeanor rather than a felony. In the alternative, he suggested that it strike one of the two allegations under the Three Strikes law that he had previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a). He evidently did so in order to reduce the maximum sentence under the scheme for a conviction for the felony of driving under the influence from a term of imprisonment for 25 years to life to one for 6 years. For a conviction of the felony of driving under the influence outside the scheme, the term of imprisonment was sixteen months, two years, or three years — when, as here, there were at least three prior convictions of the same offense as either a misdemeanor or a felony. (See Veh. Code, § 23175, subd. (a); Pen. Code, § 18.) But for a conviction of the felony of driving under the influence within the scheme, if there was one prior serious and/or violent felony conviction, the term of imprisonment was twice the term of imprisonment otherwise provided (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), to wit, two and two-thirds years, four years, or six years. And if there were at least two prior serious and/or violent felony convictions, the term of imprisonment was an indeterminate one for life, with a minimum of 25 years. (Id., §§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii); see Veh. Code, § 23175, subd. (a); Pen. Code, § 18.)
At the hearing, the superior court stated that it was not inclined to declare the offense of driving under the influence to be a misdemeanor rather than a
In response, Williams immediately decided to withdraw his plea of not guilty to the charge with a denial of the allegations, and to plead guilty with an admission thereof instead. The superior court advised him of the maximum sentence that it could impose — a term of imprisonment for 28 years to life, comprising a minimum of 25 years for the felony of driving under the influence and 1 year additionally and consecutively for each of the 3 prior prison terms. It impliedly gave him leave to withdraw his original plea of not guilty with denials. He did so. It expressly allowed him to enter a new and different plea of guilty with admissions. He did so by means of a so-called "open plea," under which he was not made any promises. In response thereto, it expressly found him guilty and impliedly determined the allegations to be true.
Straightway, the superior court proceeded to address Williams's motion under Penal Code section 17(b)(3) to declare the offense of driving under the influence to be a misdemeanor rather than a felony, and his suggestion that it strike one of the two allegations under the Three Strikes law that he had previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a). It inquired whether it could use the probation officer's report for that purpose, and he responded in the affirmative. It denied the motion. It explained that, "because of your ... record, I don't think this is an appropriate case to reduce this matter to a misdemeanor pursuant to section 17(b)...." But it ruled in accordance with the suggestion that it would strike — now vacate — one of the two allegations — now findings — under the Three Strikes law. Rejecting an argument by the People on the threshold issue, it stated: "I currently think that I ... have the authority to strike a prior under 1385 of the Penal Code." (At that time, prior to Romero, the existence vel non of such authority was an open question.) Rejecting an argument by the People on the merits, it stated: "[Williams's] prior convictions for the serious felonies were in 1982. It would appear, though, since that time he has run afoul with [sic] the law many times, but not for crimes involving actual violence. We always
Turning to sentencing, the superior court, among other things, imposed on Williams a term of imprisonment for nine years. It chose the upper term of imprisonment for three years for the felony of driving under the influence for the reasons stated in the probation officer's report. It doubled that term to six years under the Three Strikes law because there was one prior serious and/or violent felony conviction. It added one year for each of the three prior prison terms, each to run consecutive to the term for driving under the influence and to each other. It apparently declined to vacate any of the underlying findings under Penal Code section 1170.1, subdivision (h), which granted it the authority to do so "if," among other things, "it determine[d] that there [were] circumstances in mitigation of the additional punishment," because of the "same factors that led [it] to deny the request under 17(b) to reduce act [sic] as far as factors in aggravation." Noting the presence of two members of Williams's family, it stated: "[T]he fact that you've got [them] here ... shows me they still love you and still support you, in spite of the disappointment you obviously are to them. What you've done is, you've let down them [sic]. It's time for you to start doing something productive in your life."
The People filed a notice of appeal pursuant to Penal Code section 1238, subdivision (a)(10), against the "imposition of" what they claimed to be "an unlawful sentence," specifically, the "imposition of a sentence based upon an unlawful order ... which strikes ... the effect of ... [a] prior conviction."
In a judgment announced in an opinion not certified for publication, Division Five of the Second Appellate District of the Court of Appeal reversed the superior court's judgment in part and affirmed it in part. In a unanimous opinion,
The Court of Appeal denied a petition for rehearing submitted by Williams. At the same time, it modified its original opinion on its own motion without change in judgment to delete the signature of one of the justices therefrom and to add a separate opinion by him in dissent. He stated: "I agree that the order imposing sentence should be set aside. I believe it should be set aside because the trial court neglected to set forth the reasons for the dismissal in a written order as required by the Supreme Court in [Romero]. I do not agree that we, as an appellate court, can go further and, in what amounts to an exercise of our discretion, as distinguished from a review of the trial's [sic] exercise of its discretion, deny the motion to strike and impose a different and more severe sentence." He concluded: "[W]e should do what the Supreme Court effectively did on analogous facts in Romero: Vacate the sentence and remand the matter to the trial court to proceed in accordance with the views expressed in Romero."
On Williams's petition, we granted review.
In Romero, in order to provide guidance both to the trial courts, which may make such rulings, and also to the lower appellate courts, which may review them, we restated the law, as follows:
"... A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with [Penal Code] section 1385(a), and is subject to review for abuse....
"`The trial court's power to dismiss an action under [Penal Code section 1385(a)], while broad, is by no means absolute. Rather, it is limited by the
"`From the case law, several general principles emerge. Paramount among them is the rule "that the language of [Penal Code section 1385(a)], `in furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal...." ... At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." ...' ... `Courts have recognized that society, represented by the People, has a legitimate interest in "the fair prosecution of crimes properly alleged." ... "`[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.' ..."' ...
"From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes [or vacates] a sentencing allegation [or finding], solely `to accommodate judicial convenience or because of court congestion.' ... A court also abuses its discretion by dismissing a case, or a sentencing allegation [or finding], simply because a defendant pleads guilty.... Nor would a court act properly if `guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring `defendant's background,' `the nature of his present offenses,' and other `individualized considerations.' ...
When we undertake to render Penal Code section 1385(a)'s concept of "furtherance of justice" somewhat more determinate, we may proceed by adopting one of two general orientations. Broadly speaking, we may seek "justice" outside the bounds of the scheme to which the defendant is subject — which here, of course, is the Three Strikes law. Or we may look for "justice" in that scheme's interstices, informed by generally applicable sentencing principles relating to matters such as the defendant's background, character, and prospects.
To attempt to give content to the concept of "furtherance of justice" in Penal Code section 1385(a) by searching outside the scheme in question runs the risk of failure. In Romero, we had to acknowledge that what is "just" is formless. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) To be sure, "justice" is commonly defined as giving each person his due. (See, e.g., Plato, Res Publica (Burnet ed. 1952) Liber IV, pp. 433e12 to 434a1.) But it is not commonly agreed what is due each person. (E.g., Weinreb, The Complete Idea of Justice (1984) 51 U. Chi. L.Rev. 752.)
By contrast, to proceed by looking within the scheme in question, as informed by generally applicable sentencing principles, offers some prospect of success. The scheme itself constitutes the "letter" of the law. More than perhaps any other source, it may also suggest its "spirit." For even when it does not declare its purpose in ipsissimis verbis, it indicates its objective through its scope and operative terms. (See Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 108 [37 Cal.Rptr.2d 843] [stating that the "scope of discretion always resides in the particular law being applied"]; Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422 [21 Cal.Rptr.2d 303] [same].)
Moreover, it is in fact by looking within the scheme in question, as informed by generally applicable sentencing principles, that we have actually proceeded. This is manifestly true as to the Three Strikes law. In Romero, we noted the balance, for present purposes, between the defendant's constitutional rights — which we suggested included the guaranties against disproportionate punishment of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution (see, e.g., People v. Marshall (1990) 50 Cal.3d 907, 938 [269 Cal.Rptr. 269, 790 P.2d 676]) — and society's legitimate interests — which we stated embraced the fair prosecution of properly charged crimes. (See People v. Superior Court
We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his 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 scheme's spirit, 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.
In People v. Orin (1975) 13 Cal.3d 937 [120 Cal.Rptr. 65, 533 P.2d 193], we reviewed a similar superior court ruling both for its effectiveness (id. at
On the question of the effectiveness of the superior court's order, we believe that the Court of Appeal dissenting justice was right to give a negative answer. In Romero, we held that, under "settled law," a ruling that is unaccompanied by reasons set forth in an order entered on the minutes, like that here, is simply "ineffective." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532.)
On the question of the soundness of the superior court's order, we believe that the Court of Appeal majority was right to give a negative answer.
In light of the nature and circumstances of his present felony of driving under the influence, which he committed in 1995, and his prior conviction for the serious felony of attempted robbery and his prior conviction for the serious and violent felony of rape, both of which he suffered in 1982, and
There is little about Williams's present felony, or his prior serious and/or violent felony convictions, that is favorable to his position. Indeed, there is nothing. As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence; "the existence of such convictions reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable — but had failed or refused to learn his lesson" (People v. Gallego (1990) 52 Cal.3d 115, 209, fn. 1 [276 Cal.Rptr. 679, 802 P.2d 169] (conc. opn. of Mosk, J.)). As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation.
Similarly, there is little favorable about Williams's background, character, or prospects. We do not ignore the fact that he apparently had had a stable living arrangement with a woman, had expressed a desire to help care for their disabled child, and was still loved, and supported, by his family. But neither can we ignore the fact that he was unemployed and did not follow through in efforts to bring his substance abuse problem under control. Certainly, that he happened to pass about 13 years between his prior serious and/or violent felony convictions and his present felony, and proceeded from about 20 years of age to 32, is not significant. He did not refrain from criminal activity during that span of time, and he did not add maturity to age. Quite the contrary. In those years, he was often in prison or jail; when he was not, he violated parole and, apparently, probation, and committed the offenses that resulted in his convictions for the following: the felony of possession of a firearm by a convicted felon; another felony of possession of a firearm by a convicted felon; the misdemeanor of driving under the influence; another misdemeanor of driving under the influence; the misdemeanor of driving with driver's license suspended; yet another misdemeanor of driving under the influence; the misdemeanor of driving without a driver's license; the misdemeanor of possession of a controlled substance; and, lastly and notably, the misdemeanor of spousal battery. The superior court evidently believed that Williams was not the same man when he committed his present felony in 1995 at 32 years of age as he had been when he suffered his prior serious and/or violent felony convictions in 1982 at 20. In this regard, it asserted that there were no "crimes involving actual violence" in the interim. It was wrong. He had not changed. We put to the side his two convictions for the felony of possession of a firearm by a convicted felon. We also put to the side the apparent revocation of his parole following his
In view of the forgoing, the superior court's order fell outside the bounds of reason under the applicable law and the relevant facts.
Finally, in considering the decision of the Court of Appeal, we must obviously pass on its disposition. Without even mentioning Romero, the majority reversed the superior court's judgment as to sentence. By contrast, bound by Romero's authority, the dissenting justice would have vacated the judgment in that part and remanded the cause. We believe that the dissenting justice was largely right and that the majority was altogether wrong — the panel should have vacated the judgment in its entirety. In Romero, we held, in words directly applicable here, that the "conclusion that the [superior] court's order was ineffective necessarily affects the disposition. At the time [Williams] pled guilty, the [superior] court had indicated its willingness to consider striking [one of] the prior felony conviction allegations. This factor manifestly influenced [his] decision to plead guilty. Under these circumstances, the appropriate remedy is to vacate the judgment, to permit [him] to withdraw his plea, and otherwise to proceed in conformity with" the law. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532.)
For the reasons stated above, we conclude that we must affirm the judgment of the Court of Appeal to the extent that it sets aside the superior court's order vacating the finding under the Three Strikes law that Williams had previously been convicted of the serious felony of attempted robbery, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a). We must otherwise reverse the judgment of the Court of Appeal with directions to vacate the judgment of the superior court and remand the cause to that court for proceedings not inconsistent with the views expressed in this opinion.
It is so ordered.
Kennard, J., Werdegar, J., and Brown, J., concurred.
I concur in the judgment reversing the judgment of the Court of Appeal and remanding this matter to the superior court for further proceedings. I dissent from the judgment to the extent that it requires the trial court to permit defendant to withdraw his plea in those proceedings.
The majority correctly concludes that the trial court abused its discretion when it set aside its finding that defendant had committed the prior serious felony of attempted robbery. As the majority explains, defendant's criminal record establishes beyond question that he is a person who comes within the spirit of the "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
I depart company from the majority, however, when it holds that the trial court must permit defendant to withdraw his plea. I recognize that this relief was granted in Romero. In retrospect, however, I believe the court erred in doing so and thereby granting that defendant a benefit not granted to other defendants whose guilty pleas are based only on a hope or anticipation of leniency in sentencing, but to whom no promises of leniency have been made.
Had the prosecutor or the court given defendant any assurance that the prior conviction would be stricken or had any other promises of leniency been made which are not to be honored, the promise would have to be kept or the defendant be permitted to withdraw the plea of guilty. (§ 1192.5.) Due process requires no less. "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262 [92 S.Ct. 495, 499, 30 L.Ed.2d 427].) A guilty plea "is the defendant's consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." (Brady v. United States (1970) 397 U.S. 742, 748 [90 S.Ct. 1463, 1469, 25 L.Ed.2d 747], fn. omitted.)
When leave to withdraw a plea is not required by statute or mandated by constitutional considerations, however, whether to permit a defendant to withdraw the plea is a decision committed to the sound discretion of the trial court. Unless the defendant was not represented by counsel when the plea was entered, good cause must be shown by clear and convincing evidence before the court may permit the plea to be withdrawn when a defendant seeks to do so before judgment. Mistake, ignorance, or other factor which
"With respect to postjudgment motions to withdraw a guilty plea, the courts have required a showing essentially identical to that required under Penal Code section 1018: `[W]here on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which he was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty.... It should be noted, however... that this exceptional remedy applies ... only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes.' (People v. Schwarz [(1927)] 201 Cal. [309,] 314-315 [257 P. 71], italics added.) Again the decision to grant the motion lies within the trial court's discretion." (People v. Castenada, supra, 37 Cal. App.4th at p. 1617.) "Post plea remorse" brought on by dissatisfaction with the sentence imposed is not good cause for withdrawal of a plea, however. "As a general rule, a plea of guilty may be withdrawn `for mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment.' [Citations.] [¶].... [When a defendant] enters a guilty plea hoping for leniency which is not forthcoming ... [the] situation has traditionally been held not to constitute a ground for the court to exercise its discretion in allowing the withdrawal of a guilty plea." (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797-798 [114 Cal.Rptr. 596, 523 P.2d 636] (Giron), fn. omitted.)
Romero went too far, therefore, in directing that the defendant there be permitted to withdraw his plea. The majority perpetuates the error here.
The majority concedes that no promises were made in this case. It must do so because the court made that clear, stating to counsel in defendant's presence: "No promises are being made. I indicated to him that in appropriate cases like this, I have in fact struck a prior before today. However, I'm not promising that." In taking the plea, the prosecutor expressly warned the defendant that the plea would be "an open plea, which means the court has not made you any promise what sentence you could receive and, therefore, depending upon what the court does at the time of sentencing, it could be something less than 28 years to life, but of course, that is the maximum." Moreover, the judge made an express finding that no promises had been made.
Whether this defendant entered the plea in reliance on, or was substantially influenced in deciding to plead guilty, by the judge's comment regarding his inclination to strike one prior conviction or simply hoped that the court would do so cannot be determined on this record. Whether a factor overreaching a defendant's judgment induced a guilty plea presents a factual question on which both the defendant and prosecutor are entitled to offer evidence. The judge's comment alone is insufficient to establish that an overreaching factor led to defendant's entry of a guilty plea he would not otherwise have entered. At best the record supports an inference that the trial court's comment regarding its inclination to strike one prior conviction influenced defendant. Certainly there is no clear and convincing evidence here that the comment did so.
The majority, without reference to the well-established law circumscribing the power of the court to permit withdrawal of a guilty plea, holds that "in fairness" defendant should be permitted to withdraw his plea. It does so in the apparent assumption that the trial court's comments induced the plea, but that assumption is not supported by any evidence. The majority holds in effect that, as a matter of law, such comments about a court's inclinations regarding sentence induce pleas which a defendant may withdraw if the anticipated sentence is not imposed. I cannot join in either the assumption or the holding.
I agree that a decision to permit withdrawal of a plea should be decided in the interest of justice. (Giron, supra, 11 Cal.3d at pp. 796-797.) I also agree, in light of the comments made by the judge before defendant entered his plea, that this may be a case in which the usual rule disfavoring withdrawal of a plea solely because anticipated leniency was not forthcoming should not be applied. I do not agree, however, that this court may order the trial court
Based on this record, this court is in no position to rule that it would be an abuse of discretion to deny a motion to withdraw the plea, yet it concludes that it is proper to decide the question itself. It thereby usurps a power vested in the trial court.
Since the sentence imposed in this case was unauthorized, the judgment of the superior court must be reversed and the matter remanded for a new probation and sentence hearing. At that hearing defendant may move to withdraw his plea and the trial court may hear his reasons and any opposition from the local prosecutor.
To the extent that the disposition ordered by the majority differs, I dissent from the judgment.
George, C.J., and Chin, J., concurred.
Appellant's petition for a rehearing was denied February 25, 1998, and the opinion was modified to read as printed above.
In Romero, we implied that, on remand there, the superior court could rule as it had originally. (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532.) On remand here, if the material and information set out again prove to be the same as that set out before, the superior court cannot rule as it did originally, inasmuch as its order was erroneous. But if such material and information turn out to be different, it is not bound.