Supreme Court of California Justia
Citation 56 Cal.4th 562, 155 Cal.Rptr.3d 485, 2013 WL 1667822
People v. Clancey

Filed 4/18/13


Plaintiff and Appellant,
Ct.App. 6 H036501
Santa Clara County
Defendant and Respondent.
Super. Ct. Nos.
C1072166 & C1073855

Over the prosecution‟s objection, defendant Wesley Cian Clancey pleaded
no contest to all charges (an assortment of felony and misdemeanor charges,
mostly theft related) and was sentenced to five years in prison. To arrive at the
five-year sentence, the trial court exercised its discretion under Penal Code section
13851 to dismiss both the on-bail enhancement (§ 12022.1) and the allegation that
defendant had suffered a prior strike conviction within the meaning of the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
A divided panel of the Court of Appeal held that the five-year sentence was
the product of an unlawful judicial plea bargain and vacated defendant‟s pleas and
admissions. Defendant petitioned for review, contending that he entered his plea
after the trial court lawfully indicated its sentence and not as part of an unlawful

All further statutory references are to the Penal Code.

judicial plea bargain. We conclude that the record is ambiguous as to whether the
sentence proposed by the trial court reflected what it believed was the appropriate
punishment for this defendant and these offenses, regardless of whether defendant
was convicted by plea or following trial, or instead reflected what it believed was
necessary to induce defendant to enter a plea. We therefore affirm in part the
judgment of the Court of Appeal and remand the matter to the trial court to clarify
the ambiguity (see People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270,
277-278) and, if it reinstates the judgment, to recalculate defendant‟s presentence
conduct credits.
On August 19, 2010, defendant pleaded no contest to all the charges in the
first amended complaint in case No. C1072166 (two counts of forgery (§ 470,
subd. (d)); two counts of grand theft (§§ 484/487, subd. (a)); one count of false
personation (§ 529); and an allegation that he had suffered a prior strike
conviction), as well as all the charges in the first amended complaint in case No.
C1073855 (three counts of attempted grand theft (§§ 664/487); a felony and a
misdemeanor count of using a stolen access card (§§ 484g/487, 484g/488); one
count each of second degree burglary (§§ 459/460, subd. (b)), concealing stolen
property (§ 496), resisting an officer (§ 148, subd. (a)(1)), and falsely identifying
himself to an officer (§ 148.9); and allegations that these crimes were committed
while on bail and that he had suffered a prior strike conviction). In accordance
with the sentence indicated at the time defendant entered his plea, the superior
court sentenced defendant to five years in prison, calculated as follows: the
midterm of two years for forgery; consecutive eight-month terms for the
remaining forgery conviction as well as the convictions for second degree burglary
and using a stolen access card; and consecutive four-month terms for each of the
three convictions of attempted grand theft. The court exercised its authority under
section 1385 to dismiss the on-bail enhancement and the strike allegations.
A divided panel of the Court of Appeal reversed the judgment and vacated
defendant‟s pleas and admissions. The majority‟s decision rested on two legal
principles: (1) that “an „offer‟ by the court that is contingent on a defendant
pleading guilty or no contest cannot be a proper indicated sentence because it
induces a defendant to plead guilty or no contest,” and (2) that “an „offer‟ by the
court that provides the defendant with the option to withdraw the guilty or no
contest pleas and any admissions if the court decides to impose a sentence other
than the one offered is not a proper indicated sentence.” The trial court violated
the first principle, according to the majority, because “[t]he court informed
defendant through the plea colloquy that it would impose a five-year term and
strike the strike if he admitted all of the charges and allegations”; hence, “[t]his
was an improper inducement for defendant to enter pleas and admissions.” The
trial court “confirmed the existence of a bargain” (and thereby violated the second
principle) by “making a commitment that defendant could withdraw his pleas and
admissions if the court did not follow through on its offer.”
In dissent, Santa Clara Superior Court Judge Katherine Lucero, sitting by
assignment, acknowledged that an indicated sentence bore “some similarities” to a
plea bargain, but emphasized that “a true indicated sentence does not include any
inducement to a criminal defendant to plead to the sheet apart from the indicated
sentence.” The dissenting opinion also cautioned that the majority‟s proposal to
make the plea “unconditionally binding on the defendant, though not the court,”
would undermine the indicated-sentence procedure and leave “very few
defendants . . . willing to take this risk”: “If a criminal defendant cannot reserve
the right to withdraw his or her admissions to all charges if the judge‟s sentence
indication is rescinded, pleading to the sheet in response to an indicated sentence
creates a much greater risk that the defendant may receive the maximum possible
We granted review to clarify certain aspects of the indicated-sentence
This case asks us to map the line between the power of the executive and
the judiciary in the context of plea bargaining and sentencing.
“The process of plea bargaining which has received statutory and judicial
authorization as an appropriate method of disposing of criminal prosecutions
contemplates an agreement negotiated by the People and the defendant and
approved by the court. [Citations.] Pursuant to this procedure the defendant
agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting
of a less severe punishment than that which could result if he were convicted of all
offenses charged. . . . Judicial approval is an essential condition precedent to the
effectiveness of the „bargain‟ worked out by the defense and the prosecution.”
(People v. Orin (1975) 13 Cal.3d 937, 942-943 (Orin).) Because the charging
function is entrusted to the executive, “the court has no authority to substitute
itself as the representative of the People in the negotiation process and under the
guise of „plea bargaining‟ to „agree‟ to a disposition of the case over prosecutorial
objection.” (Orin, supra, 13 Cal.3d at p. 943.)
On the other hand, “[w]here the defendant pleads „guilty to all charges . . .
so all that remains is the pronouncement of judgment and sentencing‟ ([People v.]
Smith [(1978)] 82 Cal.App.3d [909,] 915), „there is no requirement that the People
consent to a guilty plea‟ (People v. Vessell (1995) 36 Cal.App.4th 285, 296). In
that circumstance, the court may indicate „what sentence [it] will impose if a given
set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or
admitted by plea.‟ (Smith, at pp. 915-916.)” (People v. Turner (2004) 34 Cal.4th
406, 418-419.)
In this case, defendant contends that the five-year sentence proffered by the
trial court was an exercise of the court‟s lawful sentencing discretion and that he
entered a plea in response to the indicated five-year sentence. The People, like the
Court of Appeal below, argue that the trial court offered to dismiss the strike as an
inducement to an unlawful judicial plea bargain. Our resolution of this dispute
must begin with a review of the proceedings in the trial court.
A. Defendant’s Change of Plea and Sentencing
Following off-the-record discussions among the parties, defense counsel, at
the request of the trial court, placed on the record the details of defendant‟s plea:
“Mr. Clanc[e]y, on two separate dockets, in each case, he will be pleading as
charged, and in each matter will be admitting a serious strike prior allegation. It‟s
anticipated at the time of sentencing the Court will grant an oral Romero[2]
motion, thereafter sentence Mr. Clanc[e]y to five years in state prison.”
The People objected to the proposed disposition. The People‟s objection
was based on their view that “a reasonable resolution would be eight or nine years
in state prison” if defendant were to plead prior to the preliminary hearing, that the
court‟s proposed disposition required dismissal of the prior strike allegation
(which was “contrary to” the Three Strikes law), and that there “would be a
substantial difference between the Court‟s offer and the People‟s position”
because of the more lenient award of postsentence credits under the court‟s

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

Despite the objection, the trial court and the prosecutor proceeded to obtain
the appropriate waivers from defendant. The prosecutor additionally elicited
defendant‟s understanding that the maximum term for the charged crimes was 16
years and eight months; that the minimum term was 11 years and four months; and
that he was not eligible for probation. After stipulating to a factual basis for the
plea, defendant pleaded no contest to all charges and admitted the prior strike
allegation and the on-bail enhancement.
At the hearing on defendant‟s Romero motion, the People renewed their
objection to the “plea bargain” and urged that defendant‟s prior strike not be
dismissed. The prosecutor‟s “main” objection was “that a plea bargain was made
in this case in that the defendant agreed to plead guilty to the current charges in
exchange for an assurance or commitment or promise by the court to strike the
strike and sentence him to five years in state prison, and that that agreement was
contrary to Penal Code section 667(g) and Penal Code section 1170.12(e) . . . . [¶]
So what‟s happening today with the oral Romero and the recommended sentence
by the probation department, if the court goes forward with this, is a foregone
conclusion, because it‟s something that was promised to the defendant prior to him
[sic] changing his plea.” The prosecutor also referred the court to the additional
information he had submitted in opposition to the Romero motion and asserted, “I
do not believe the court, at the time of our discussions, prior to the change of plea,
had all this information.”
Before pronouncing sentence, the trial court stated that the People‟s
comments and objections “if they were viewed in a vacuum” could make it appear
“that the court engaged in plea bargaining and abused its discretion; but having
said that, if you step away from that vacuum and you view this matter in the
totality of the circumstances as how the court operates and has been operating for
the past three years that I‟ve been doing this assignment, I think for purposes of
any reviewing court, I need to outline for the reviewing court how the conferences
are structured and how they‟re held.” The court explained that the “assignment”
and “function” of the Early Resolution Calendar in general is “to settle cases, as
many as it can, by way of settlement discussions with all parties.” As an
illustration of the basis for its exercise of discretion in this case, the trial court
recited that the parties here “had discussions about the case, perhaps not as in
detail as outlined by [the People‟s] points and authorities,” but the court had
reviewed “all of that and all of the exhibits that were attached thereto” as well as
“the nature of the case and the facts.” In addition, “all players that were there at
the conference . . . had access to the criminal history of the defendant.” As a
result, the court “had all this at the time that we had the discussions. So it isn‟t as
though the court made an offer in a vacuum, but rather it was an informed offer
that the court had, given the nature of the circumstances.” “I don‟t think this is a
case where the court didn‟t take into consideration the defendant‟s history, the
nature of the case, the age of the prior, in making a determination as to whether or
not an offer should be made in this case and on that basis the court did make that
offer of five years.” Rather, “having read the probation report, having read and
considered the points and authorities that have been submitted by [the People], the
oral arguments of both parties, the information that the court had at the time it
made its offer, there is nothing new that the court did not know back . . . when I
made the offer, that would require this court to set aside the plea because of new
information that I didn‟t know at the time.”
In response to the prosecutor‟s contention that the sentence was a foregone
conclusion, the court explained that even though the court “was suggesting an
offer of—with respect to an oral Romero and indicated sentence, it was understood
. . . that if there‟s anything new that comes up, that the court has the ability to set it
aside and to put the parties back in their original position and not to make it a
condition of the plea.” “And, just for the record, the court has set aside pleas
where I had indicated a sentence and based on the probation report, a factor came
into consideration that I was not aware of and the court felt that that additional
factor was weighty enough and that it allowed the court to set aside the plea.”
Prior to imposing sentence, the court granted the Romero motion, and
offered these reasons: the prior strike was approximately 10 years old, the current
offenses were neither serious nor violent, no weapons were involved and no one
was injured, the loss in this matter was not egregiously excessive, and several of
the current offenses were “attempts.” The court then struck the punishment for the
on-bail enhancement and imposed the “agreed upon disposition” of five years.
B. The Distinction Between an Unlawful Plea Bargain and a Lawful
Indicated Sentence
The People argue that the trial court “substituted itself for the prosecutor”
and crafted “an unlawful judicial plea bargain” that was “functionally identical” to
the judicial negotiations we condemned in Orin, supra, 13 Cal.3d 937. In that
case, the defendant, Orin, was charged by information with attempted robbery,
burglary, and assault with a deadly weapon, along with a number of
enhancements. (Orin, supra, 13 Cal.3d at p. 940.) Over the People‟s objection,
the trial court proposed and entered a disposition “ „in the nature of a plea bargain‟
” under which Orin would plead guilty to the charge of felony assault and be
sentenced to the unenhanced term for that offense. (Ibid.) In exchange, the trial
court would dismiss the remaining charges. (Id. at pp. 940-941.) “[T]he net effect
of the dismissal was to preclude the prosecution and possible conviction of
defendant for two offenses simply because he was willing to plead guilty to a
third, all three offenses having been properly charged.” (Id. at p. 948.) We
reversed the judgment on the ground the trial court had failed to set forth reasons
for the dismissal of those charges as required by section 1385—and, on that
particular record, the apparent justification for the dismissal “was not in
furtherance of justice and constituted an abuse of discretion.” (Orin, supra, 13
Cal.3d at p. 951.)
Before addressing the validity of the trial court‟s exercise of its power
under section 1385, though, our unanimous opinion declared that “notwithstanding
the court‟s characterization of the disposition of the cause below „as being in the
nature of a plea bargain,‟ there was in fact no plea bargain.” (Orin, supra, 13
Cal.3d at p. 942.) Because a “court has no authority to substitute itself as the
representative of the People in the negotiation process and under the guise of „plea
bargaining‟ to „agree‟ to a disposition of the case over prosecutorial objection” (id.
at p. 943), the trial court lacked the authority to dismiss, over the People‟s
objection, charges for which probable cause existed to believe the defendant was
guilty (id. at p. 947). Such a bargain, we explained, “would contravene express
statutory provisions requiring the prosecutor‟s consent to the proposed disposition,
would detract from the judge‟s ability to remain detached and neutral in evaluating
the voluntariness of the plea and the fairness of the bargain to society as well as to
the defendant, and would present a substantial danger of unintentional coercion of
defendants who may be intimidated by the judge‟s participation in the matter.”
(Id. at p. 943, fn. omitted.)
Orin relied on a “substantially similar” case from the Court of Appeal, in
which the trial court and the defendants, over the People‟s objection, agreed to an
arrangement in which the defendants would plead guilty to charges of robbery and
rape in exchange for a grant of probation and dismissal of three other felony
charges. (Orin, supra, 13 Cal.3d at p. 947, citing People v. Beasley (1970) 5
Cal.App.3d 617.) “Holding said disposition to be improper, the Court of Appeal
reasoned that the trial court‟s action evidenced a disregard of the adversary nature
of criminal proceedings and of the state‟s interest, „ “ „as a litigant . . . in seeing
that cases in which it believes a conviction is warranted are tried . . . .‟ ” ‟ (People
v. Beasley, supra, 5 Cal.App.3d at p. 636, italics omitted, quoting Singer v. United
States (1965) 380 U.S. 24, 36.)” (Orin, supra, 13 Cal.3d at pp. 947-948; see also
People v. Allan (1996) 49 Cal.App.4th 1507, 1517 [trial court made an unlawful
plea bargain where the defendant pleaded guilty to one count in exchange for
dismissal of the remaining count and five sentencing allegations].)
The distinction between an unlawful plea bargain and an indicated sentence
is not merely a matter of form, however. A reviewing court must also focus on the
respective roles of the executive branch and the judiciary. The charging function
is the sole province of the executive. The executive also decides whether to
engage in negotiations with the defense by which a more lenient disposition of the
charges can be secured without trial—a bargain that must ultimately be approved
by a court. (Orin, supra, 13 Cal.3d at pp. 942-943.) A court thus “has no
authority to substitute itself as the representative of the People in the negotiation
process,” even for the purpose of clearing congested calendars. (Id. at p. 943.)
The imposition of sentence within the legislatively determined limits, on
the other hand, is exclusively a judicial function. (People v. Navarro (1972) 7
Cal.3d 248, 258.) The “refusal of prosecutors to consider plea bargaining as a
viable alternative to a lengthy trial may militate against the efficient administration
of justice, impose unnecessary costs upon taxpayers, and subject defendants to the
harassment and trauma of avoidable trials. [Citation.] A court may alleviate this
burden upon our criminal justice system if this can be accomplished by means of a
permissible exercise of judicial sentencing discretion in an appropriate case.”
(Orin, supra, 13 Cal.3d at p. 949.)
The prospect of prosecutorial intransigence and judicial overreaching
circumscribe a trial court‟s discretion to indicate its sentence in several important
First, in order to preserve the executive‟s prerogative to conduct plea
negotiations, a trial court generally should refrain from announcing an indicated
sentence while the parties are still negotiating a potential plea bargain. The
“ „horse trading‟ ” between the prosecutor and defense counsel is the process by
which the vast majority of criminal cases are disposed. (Missouri v. Frye (2012)
566 U.S. ___, ___ [132 S.Ct. 1399, 1407].) Absent unusual circumstances (see,
e.g., Orin, supra, 13 Cal.3d at p. 949), there is little need for a court to articulate
its view of the case until the parties are satisfied that further negotiations are
unlikely to be productive. Even then, a trial court may prudently refrain unless the
court is convinced the punishment proposed by the People is not an appropriate
sanction for the particular defendant and the specific offense or offenses.
Second, a trial court should consider whether the existing record
concerning the defendant and the defendant‟s offense or offenses is adequate to
make a reasoned and informed judgment as to the appropriate penalty. The utility
of an indicated sentence necessarily depends on the quality of the information
available to the court at an early stage concerning the offense and the defendant‟s
criminal history.
Third, “a court may not offer any inducement in return for a plea of guilty
or nolo contendere. It may not treat a defendant more leniently because he
foregoes his right to trial or more harshly because he exercises that right.” (People
v. Superior Court (Felmann), supra, 59 Cal.App.3d at p. 276; see also In re
Lewallen (1979) 23 Cal.3d 274, 281.) Because an indicated sentence is merely an
instance of “sentencing discretion wisely and properly exercised” (Orin, supra, 13
Cal.3d at p. 949), the indicated sentence must be the same punishment the court
would be prepared to impose if the defendant were convicted at trial. An indicated
sentence, properly understood, is not an attempt to induce a plea by offering the
defendant a more lenient sentence than what could be obtained through plea
negotiations with the prosecuting authority. When a trial court properly indicates
a sentence, it has made no promise that the sentence will be imposed. Rather, the
court has merely disclosed to the parties at an early stage—and to the extent
possible—what the court views, on the record then available, as the appropriate
sentence so that each party may make an informed decision.
For example, a defendant who faces a sentence within a wide range (say,
between 10 and 20 years) may well demand a trial if the defendant fears being
sentenced to the maximum term, even though the prospect of an acquittal is quite
low. Once informed that the trial court believes on the current record that the
appropriate sentence is 10 years, however, a defendant might choose to plead
guilty so as to avoid the ordeal of trial. Such an outcome promotes fairness, in that
the defendant receives the same sentence as would have been imposed after trial,
and efficiency, in that the same outcome is achieved without trial.
Fourth, a trial court may not bargain with a defendant over the sentence to
be imposed. (People v. Labora (2010) 190 Cal.App.4th 907, 915-916.) In
Labora, for example, the defendant “ „asked for an indicated sentence in this case
from the Court. And the Court indicated six years and eight months. [¶] After the
lunch hour, the defense indicated that the defendant was considering that, but
would the court be inclined to give him six years instead of the six years and eight
months previously indicated.‟ ” (Id. at p. 911.) The court “ „felt it was being a
little nickel[ed] and dimed by the defense, but agreed to it anyway.‟ ” (Ibid.)
“Thus, the trial court‟s indicated sentence was not the sentence to which [the]
defendant pled guilty,” even though “nothing in the record . . . shows that the trial
court changed its indicated sentence based upon further explanation of the facts
underlying defendant‟s case.” (Id. at pp. 915-916.) On that record, the Court of
Appeal determined that “the trial court did not simply inform defendant of the
sentence he would receive” but was “negotiating” the disposition with the
defendant. (Id. at p. 916.)
Despite these limitations, the line between an improper inducement and a
lawful indicated sentence, as the dissenting justice below cautioned, has not
always been “bright” and in certain circumstances “may allow diverse
interpretations.” Over 20 years ago, one Court of Appeal recommended that “[t]o
aid in appellate review in the future, the trial court should expressly say it is giving
an „indicated sentence.‟ ” (People v. Superior Court (Ramos) (1991) 235
Cal.App.3d 1261, 1266, fn. 2.) We agree that it would be helpful for the trial court
to state expressly that it is providing an indicated sentence. In light of subsequent
experience, however, we are not convinced a mere label is necessarily sufficient to
ensure that the trial court has not overreached into the executive‟s role in
negotiating dispositions. Accordingly, a trial court that intends to offer an
indicated sentence should not only identify it as such, but should also ensure that
the record makes clear the indicated sentence represents the court‟s best judgment
as to the appropriate punishment for this defendant and this offense, regardless of
whether guilt is established by plea or at trial. A clear statement that the indicated
sentence is no more than the trial court‟s considered judgment as to the
appropriate punishment in the case, regardless of whether defendant is convicted
by plea or at trial, will not only clarify the trial court‟s role in the process but will
also aid in appellate review.
To be sure, an indicated sentence is not a promise that a particular sentence
will ultimately be imposed at sentencing. Nor does it divest a trial court of its
ability to exercise its discretion at the sentencing hearing, whether based on the
evidence and argument presented by the parties or on a more careful and refined
judgment as to the appropriate sentence. As stated above, the utility of the
indicated-sentence procedure in promoting fairness and efficiency depends to a
great extent on whether the record then before the court contains the information
about the defendant and the defendant‟s offenses that is relevant to sentencing.
The development of new information at sentencing may persuade the trial court
that the sentence previously indicated is no longer appropriate for this defendant or
these offenses. Or, after considering the available information more carefully, the
trial court may likewise conclude that the indicated sentence is not appropriate.
Thus, even when the trial court has indicated its sentence, the court retains its full
discretion at the sentencing hearing to select a fair and just punishment. An
indicated sentence does not shift the burden to the People at sentencing to argue
against its imposition.
C. Whether the Trial Court Lawfully Indicated a Sentence in This
Here, unlike in Orin and in Beasley, the trial court did not preclude the
prosecution or conviction of any part of the charges against defendant. Defendant
was convicted of all offenses and admitted all allegations. (People v. Feyrer
(2010) 48 Cal.4th 426, 434, fn. 6 [“A trial court may provide the defendant with
an „indicated sentence‟ if he or she pleads guilty or no contest to all charges and
admits all allegations”].) However, there is no clear statement in the record that
the sentence indicated by the trial court represented the court‟s best judgment of
the appropriate punishment in this case, regardless of whether defendant was
convicted by plea or at trial. Instead, the record is fatally ambiguous.
Although the court never stated that defendant faced a more severe
punishment if he went to trial or that the proposed disposition might expire if
defendant did not promptly accept it, the court did make statements that would
support such an inference. At the outset, the trial court noted the “practice” that
matters assigned to the Early Resolution Calendar “are usually with the
understanding of both sides settled for somewhat less than the going disposition at
a trial department.” When challenged by the People, the trial court did concede
that the proceedings here, if “viewed in a vacuum,” would make it appear “the
court engaged in plea bargaining and abused its discretion,” but the court deemed
it important that this case be viewed “in the totality of the circumstances as how
the court operates and has been operating for the past three years that I‟ve been
doing this assignment” in the Early Resolution Calendar. Yet the context the court
provided was to reiterate that the calendar‟s “function” and “assignment” is “to
settle cases, as many as it can, by way of settlement discussions with all parties.”
On the other hand, the record also shows that the court considered itself
fully informed as to the relevant facts about defendant and his crimes at the time
the court indicated its sentence; that the court was aware it retained discretion to
reconsider the appropriate punishment at the sentencing hearing; and that, after
considering all of the evidence and argument, the court continued to believe the
indicated sentence was appropriate in this case.
What is missing 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.
Ordinarily, we review a claim that a trial court entered into an improper
plea bargain for abuse of discretion. “Accordingly, we ask whether the trial
court‟s findings of fact are supported by substantial evidence, whether its rulings
of law are correct, and whether its application of the law to the facts was neither
arbitrary nor capricious.” (People v. Superior Court (Humberto S.) (2008) 43
Cal.4th 737, 746.) In examining whether the trial court improperly induced a
defendant‟s plea to what would otherwise be a lawful sentence, the key factual
inquiries are whether the indicated sentence was more lenient than the sentence the
court would have imposed following a trial and whether the court induced the
defendant‟s plea by bargaining over the punishment to be imposed. (See People v.
Superior Court (Felmann), supra, 59 Cal.App.3d at p. 277.) But the record here,
as demonstrated above, is entirely ambiguous as to whether the court extended
leniency to defendant because of his plea.
Where, as here, the record does not clearly indicate whether the purported
indicated sentence represents the trial court‟s considered judgment as to the
appropriate punishment for this defendant and the defendant‟s offense or offenses,
regardless of whether guilt is secured by plea or at trial—and where, as here, the
party challenging the disposition has objected on that basis below—the proper
remedy is a conditional reversal with directions to the trial court on remand to
resolve the ambiguity. (People v. Superior Court (Felmann), supra, 59
Cal.App.3d at pp. 277-278.) If the trial court on remand to rehear and reconsider
the plea makes clear that its previously indicated sentence represented its best
judgment as to the appropriate punishment for this defendant and the defendant‟s
offense or offenses, without extending any leniency to secure a plea, then it shall
reinstate the judgment.
As in People v. Superior Court (Felmann), supra, 59 Cal.App.3d at page
277, footnote 4, we do not mean to imply that “magic words” are required. It is
sufficient if the record clearly reflects that the sentence indicated by the trial court
represents its best judgment as to the appropriate sentence for the defendant and
the defendant‟s offense or offenses, based on the information then available and
regardless of whether guilt is established by plea or at trial. A clear statement to
that effect should help maintain the boundary between the prosecution‟s authority
to file charges and negotiate dispositions and the judiciary‟s authority to exercise
discretion in sentencing.
Because the trial court may reinstate its judgment on remand, we now turn
to the People‟s remaining legal objections to the trial court‟s disposition.
D. An Indicated Sentence May Contemplate the Trial Court’s Exercise
of Its Sentencing Discretion, Including Exercise of Its Discretion Under
Section 1385
The People contend that even if the trial court had merely indicated what
sentence it believed was appropriate in this case, regardless of whether defendant
was convicted by plea or at trial, the trial court lacked the authority to offer an
indicated sentence of five years. A five-year sentence presupposed the exercise of
the trial court‟s power to dismiss the on-bail enhancement and the strike
allegations under section 1385—and, in the People‟s view, section 1385 may not
be used as part of the indicated sentence procedure. They rely on People v.
Woosley (2010) 184 Cal.App.4th 1136 (Woosley), where the Court of Appeal
invalidated a similar attempt by the trial court to indicate a sentence that
presupposed the exercise of the section 1385 power to dismiss.
In Woosley, the defendant was charged with first degree burglary, second
degree burglary, petty theft, and an on-bail enhancement. (Woosley, supra, 184
Cal.App.4th at p. 1140.) The “trial court gave what appeared to be an indicated
sentence” of two years and eight months, a sentence that “could be imposed only
if the trial court dismissed the on-bail enhancement.” (Id. at p. 1147.) The
Woosley court held that because the sentence “included, anticipatorily, the
dismissal of the on-bail enhancement,” “it was more than just an indicated
sentence.” (Ibid.) Although the defendant pleaded guilty to all charges and
admitted the enhancement, “the plea did not expose him to punishment for the on-
bail enhancement because the trial court had promised to dismiss it.” (Ibid.)
Thus, “the substance of the bargain was no different from the trial court dismissing
the on-bail enhancement before taking the plea”—which, absent the prosecutor‟s
consent, “encroaches on the prosecutor‟s charging authority and exposes the
process to the evils discussed . . . in Orin.” (Ibid.)
The encroachment on the prosecutor‟s charging authority in Orin, however,
must be distinguished from “the area of proper sentencing discretion.” (Orin,
supra, 13 Cal.3d at p. 949.) Within the limits set forth by the Legislature, a trial
court has broad discretion to decide whether to grant probation (Cal. Rules of
Court, rule 4.414); whether to select the upper, middle, or lower term of
imprisonment (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b)); whether to
run the prison terms on multiple offenses concurrently or consecutively (§ 669;
Cal. Rules of Court, rule 4.425); whether to stay punishment of one or more
offenses (§ 654); whether to reduce a felony wobbler offense to a misdemeanor
(§ 17, subd. (b)); and whether to dismiss one or more offenses or allegations in the
interests of justice (§ 1385). Neither Woosley nor the People challenge a trial
court‟s authority to exercise its discretion as to each of these choices following a
trial or an “open plea” (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4), and
rightly so. “The imposition of sentence and the exercise of sentencing discretion
are fundamentally and inherently judicial functions.” (People v. Navarro, supra, 7
Cal.3d at p. 258.)
It is only when the trial court wishes to exercise its discretion to dismiss an
offense or allegation as part of an indicated sentence—i.e., to inform the parties as
to the very sentence the court would impose following a trial (see, e.g., People v.
Meloney (2003) 30 Cal.4th 1145, 1155)—that Woosley and the People purport to
find an encroachment on the prosecutor‟s authority. We perceive no statutory or
constitutional basis for their objection that a trial court‟s ordinary sentencing
discretion necessarily excludes the power to dismiss under section 1385 in the
context of an indicated sentence. (See People v. Superior Court (Howard) (1968)
69 Cal.2d 491, 502 [“the discretion of the judge [under section 1385] is absolute
except where the Legislature has specifically curtailed it”].) Orin itself recognized
that the “power to dismiss priors” is “an integral part of the trial judge‟s
sentencing discretion, and hence cannot be limited by a requirement of
prosecutorial consent.” (Orin, supra, 13 Cal.3d at p. 946, fn. 11.)
In short, “[t]he judicial power is compromised when a judge, who believes
that a charge should be dismissed in the interests of justice, wishes to exercise the
power to dismiss but finds that before he may do so he must bargain with the
prosecutor. The judicial power must be independent, and a judge should never be
required to pay for its exercise.” (People v. Tenorio (1970) 3 Cal.3d 89, 94.) The
People cite nothing other than Woosley to suggest that a trial court may not rely on
section 1385 as part of its ordinary sentencing discretion to indicate what it
considers to be the appropriate sentence.
To be sure, the Legislature has limited the power to dismiss in other
important ways. A trial court‟s power to dismiss under section 1385 may be
exercised only “ „in furtherance of justice,‟ ” which mandates consideration of
“ „the constitutional rights of the defendant, and the interests of society
represented by the People.‟ ” (Orin, supra, 13 Cal.3d at p. 945.) At the
sentencing hearing, the parties will have an opportunity to present evidence and
argument concerning the full scope of the matters within the court‟s sentencing
discretion, including the potential exercise of the power to dismiss under section
1385. Section 1385 further “ „require[s] the court to spread upon the minutes for
public reference the reason for its action‟ ” (People v. Bonnetta (2009) 46 Cal.4th
143, 149), and we have previously explained that “[a]t the very least, the reason
for dismissal must be „that which would motivate a reasonable judge‟ ” (Orin,
supra, 13 Cal.3d at p. 945). Moreover, a court‟s exercise of this power is subject
to review for abuse of discretion. (People v. Superior Court (Romero), supra, 13
Cal.4th at p. 530.) An abuse occurs when the charge or allegation is dismissed
“solely „to accommodate judicial convenience or because of court congestion‟ ” or
“simply because a defendant pleads guilty.” (Id. at p. 531.)
The Woosley court expressed concern that unless an indicated sentence
predicated on dismissal of a charge or allegation were deemed an unlawful plea
bargain, “the trial court could agree to dismiss any or all of charges or
enhancements, pursuant to section 1385, in exchange for a defendant‟s guilty plea
on all the charges and enhancements.” (Woosley, supra, 184 Cal.App.4th at p.
1147.) By requiring that the record clearly reflect the court‟s understanding that
the indicated sentence would apply regardless of whether guilt was established by
plea or at trial, we presume that courts will not abuse their extraordinary power
under section 1385 as leniency to secure a defendant‟s plea. The indicated-
sentence procedure is not to be used as a means of indiscriminately disposing of
cases at an early stage, even in the face of a crowded court calendar.
Moreover, the potential mischief arising from dismissal of any or all
charges or enhancements under section 1385 is no less real after a jury
adjudication of guilt or an open plea than it is by the trial court‟s announcement of
its intent to impose such a sentence as part of the indicated-sentence procedure.
(See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) The remedy
is not to carve out new exceptions to section 1385, as Woosley did, but to enforce
the limitations set forth in section 1385 itself through appellate review. (See
People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.)3
It is essential that trial courts, even at the earliest stages of a case, take
seriously their duty to fashion a sentence in accordance with the general objectives
of sentencing (Cal. Rules of Court, rule 4.410) and to take due account of the

People v. Woosley, supra, 184 Cal.App.4th 1136 is disapproved to the
extent it is inconsistent with the views expressed here.

crime and the defendant‟s criminal history (id., rules 4.414, 4.421, 4.423). As the
People point out, an indicated sentence, properly understood, “represents the trial
court‟s application of the law (its ordinary sentencing discretion) to assumed
facts.” When a court has reason to believe the assumed facts are suspect or
incomplete in a material way, or when substantial doubt exists as to the fairness of
the disposition to the People or to the defendant, an indicated sentence will not
promote the goals of fairness and efficiency.
A prosecutor “has the „inherent right to challenge the factual predicate and
to argue that the court‟s indicated sentence is wrong,‟ ” regardless of whether the
sentence to be imposed contemplates the exercise of the court‟s discretion under
section 1385. (People v. Superior Court (Ramos), supra, 235 Cal.App.3d at p.
1271.) In this proceeding, however, the People do not argue that the trial court
abused its discretion under section 1385; they contend only that the trial court
acted in excess of its jurisdiction by relying on section 1385 in indicating its
sentence. For the reasons stated above, that contention is rejected.
E. An Indicated Sentence May Contemplate the Trial Court’s Exercise
of Its Discretion to Dismiss a Prior Qualifying Conviction Under the Three
Strikes Law
The Three Strikes law provides that “[p]rior serious and/or violent felony
convictions shall not be used in plea bargaining as defined in subdivision (b) of
Section 1192.7. The prosecution shall plead and prove all known prior serious
and/or violent felony convictions and shall not enter into any agreement to strike
or seek the dismissal of any prior serious and/or violent felony conviction
allegation,” except to the extent “there is insufficient evidence to prove the prior
serious and/or violent felony conviction” or dismissal of the prior conviction
would be “in the furtherance of justice pursuant to section 1385.” (§§ 667, subds.
(f)(2), (g), 1170.12, subds. (d)(2), (e).) Relying on these provisions, the People
contend that “[t]he Three Strikes law prohibited the trial court from offering to
strike the prior serious felony conviction as inducement for the pleas.”
We have previously held that the Three Strikes law did not restrict the
power of a trial court acting on its own motion to dismiss a prior felony conviction
allegation in the furtherance of justice. (People v. Superior Court (Romero),
supra, 13 Cal.4th at pp. 529-530.) Indeed, we recently acknowledged that “the
sentence that is actually imposed under the Three Strikes law is frequently
dependent upon the trial court's exercise of discretion in determining whether, in
furtherance of justice, to strike any of the serious or violent prior convictions that
have been charged by the prosecutor and, if so, how many prior convictions to
strike.” (In re Coley (2012) 55 Cal.4th 524, 559-560.)
When a trial court has invoked its statutory power to dismiss the strike
allegation in order to indicate the sentence it would impose, the court has not
engaged in plea bargaining. (See People v. Allan, supra, 49 Cal.App.4th at p.
1516 [where a court indicates a sentence, “[n]o „bargaining‟ is involved because
no charges are reduced”].) Accordingly, the Three Strikes law does not restrict a
trial court‟s power to fashion an indicated sentence. (Cf. People v. Vessell, supra,
36 Cal.App.4th at pp. 289-296 [Three Strikes law does not bar trial court, in
providing an indicated sentence, from relying on its authority under section 17,
subdivision (b) to reduce a wobbler to a misdemeanor].) Whether the trial court in
this case lawfully indicated the sentence it believed was appropriate, or instead
offered to dismiss the strike conviction to induce a plea, is for the trial court to
clarify when it rehears and reconsiders the plea on remand.
F. Whether a Defendant May Withdraw a Plea Under the Indicated
Sentence Procedure
In People v. Superior Court (Felmann), supra, 59 Cal.App.3d 270
(Felmann), the defendant offered to enter a no-contest plea to four counts each of
grand theft and forgery on the condition that he be sentenced to probation with an
order of restitution, a fine, and no jail time. The trial court, noting that the
defendant lived with his family, was employed, had a minimal prior record, and
suffered from a heart condition, announced that it would accept the plea. (Id. at
pp. 273-274.) When the People petitioned for a writ to prevent the court “from
proceeding further on the conditional plea” (id. at p. 274), the Court of Appeal
found the record was “ambiguous” as to “whether the trial judge determined to
proceed on defendant‟s conditional plea of no contest solely in the exercise of his
sentencing discretion” (i.e., as a proper indicated sentence) or “whether the judge
determined to accept an offer of the defendant to enter his plea in return for more
lenient treatment than he otherwise would have received” (i.e., as an unlawful plea
bargain without the prosecution‟s consent). (Id. at p. 277.) The Court of Appeal
directed the trial court to rehear and reconsider the plea in order to resolve this
“key factual issue.” (Ibid.)
The defendant‟s plea in Felmann included a condition that “if after
reviewing the probation report the court were not inclined to impose sentence in
the terms outlined, the nolo contendere plea could be withdrawn and the matter
proceed to trial.” (Felmann, supra, 59 Cal.App.3d at p. 273.) Felmann approved
this condition as part of the indicated-sentence procedure, stating that if the trial
court elects not to impose the indicated sentence, “then defendant has the option of
going to trial or accepting the harsher treatment on a guilty or nolo contendere
plea.” (Id. at p. 276; see also People v. Labora, supra, 190 Cal.App.4th at pp.
916-917; People v. Delgado (1993) 16 Cal.App.4th 551, 555; People v. Superior
Court (Ramos), supra, 235 Cal.App.3d at p. 1271; Bryce v. Superior Court (1988)
205 Cal.App.3d 671, 676, fn. 2.)
Based on Felmann, defendant asks us to announce a rule that when a trial
court offers an indicated sentence, it must advise the defendant of the opportunity
to withdraw the plea if the court later decides not to impose the indicated sentence.
The People, on the other hand, asserted at oral argument that although a defendant
may “as a practical matter” be allowed to withdraw a plea in most cases,
withdrawal is not invariably the appropriate remedy every time the court selects a
different punishment.4 In their view, the withdrawal of a plea when a trial court
deviates from the indicated sentence should instead be governed by section 1018,
which authorizes a court to permit a plea of guilty to be withdrawn “for a good
cause shown.” The People acknowledge that section 1018 should be given “a
liberal construction . . . in the interest of promoting justice” (People v. Superior
Court (Giron) (1974) 11 Cal.3d 793, 797), but ask us not to foreclose entirely the
possibility that the withdrawal of a plea, when a trial court declines to impose the
indicated sentence, may not promote justice in unusual circumstances.
We decline to resolve here which standard should govern the withdrawal of
a plea after a trial court declines to impose the indicated sentence because, as the
People also point out, the trial court below did not reject the indicated sentence,
nor has defendant ever sought to withdraw his plea. If, on remand to rehear and
reconsider the plea, the trial court clarifies that its previously indicated sentence
was proper, then its judgment shall be reinstated. If, on the other hand, the
disposition was not the product of a lawful indicated sentence, then (as the Court
of Appeal majority held) the trial court must vacate defendant‟s pleas and
admissions. In neither instance will it be necessary for the court to consider
whether to allow defendant to withdraw his plea.

In the Court of Appeal, the People argued that allowing a defendant to
withdraw a plea when the trial court later rejects the indicated sentence “is
characteristic of judicial plea bargaining and removes the possibility that a plea
resulted from an indicated sentence.” On further consideration, however, the
People have withdrawn that argument.

G. If the Judgment Is Reinstated, Defendant’s Presentence Credits
Must Be Recalculated
The trial court awarded defendant day-for-day presentence conduct credits
of 236 days, using the accelerated rate provided by Penal Code former section
4019.5 The trial court believed defendant could be made eligible for credits at this
accelerated rate once it dismissed, under section 1385, the disqualifying allegation
that defendant had previously suffered a serious or violent felony conviction. (See
former § 4019, subds. (b)(2), (c)(2).) As defendant now concedes, the trial court
erred. Following the sentencing hearing in this case, we held that section 1385
does not authorize a court to disregard the historical facts that disqualify a local
prisoner from earning the accelerated day-for-day conduct credits under former
section 4019. (People v. Lara (2012) 54 Cal.4th 896, 900.)
In the event the trial court reinstates its judgment, defendant‟s presentence
conduct credits will need to be recalculated and added to his sentence. There is
one wrinkle, however. Counsel informs us that defendant has already been
discharged from custody. He asks that the trial court on remand therefore be
directed to consider whether returning him to prison to serve the remaining days of
his sentence would be unfair under the rule set forth in People v. Tanner (1979) 24
Cal.3d 514, 521-522 (Tanner).
“In Tanner, we concluded that the Legislature did not intend for a firearm-
use finding under section 1203.06, which rendered the defendant ineligible for
probation, to be subject to the judicial power to dismiss or strike under section
1385. The trial court, by unlawfully dismissing the probation-ineligibility clause,

(§ 4019, as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50;
subsequently amended by Stats. 2010, ch. 426, § 2, Stats. 2011, ch. 15, § 482,
Stats. 2011, ch. 39, § 53, and Stats. 2011, 1st Ex. Sess., ch. 12, § 35.)

had granted Tanner probation and a one-year jail term, and Tanner had
successfully complied with both. (Tanner, supra, 24 Cal. 3d at pp. 518, 522.)
Without explaining whether our decision rested on constitutional grounds or on
our inherent powers, we concluded it would be „unfair‟ and „unjust‟ to require
Tanner to serve a second term for his criminal act. (Id. at pp. 521-522; but see
People v. Warner (1978) 20 Cal. 3d 678, 689 [reversing for resentencing upon a
finding that the trial court had abused its discretion in granting probation,
notwithstanding the possibility that „defendant may have defied the odds by
leading a blameless life during this period‟].) In so ruling, we relied entirely on a
„highly similar‟ case (Tanner, supra, at p. 521) from the United States Court of
Appeals for the Fifth Circuit, United States v. Denson (5th Cir. 1979) 588 F.2d
1112, which „stated, among other things: “These Defendants have been told after
such prosecutions and investigations that they would be subjected to one year‟s
incarceration to be followed by five years supervision. They prepared to surrender
for such incarceration. They have adjusted their lives to the punishment assessed.
They have sought and secured employment opportunities consistent with the term
of incarceration imposed. To withdraw the probation granted for which the
Defendants and their families have prepared themselves would work a substantial
hardship on the Defendants and their families.” (Id., at p. 1132.)‟ (Tanner, supra,
24 Cal. 3d at p. 521.)” (People v. Statum (2002) 28 Cal.4th 682, 695-696.)
We have subsequently questioned whether this part of Tanner is correct.
“Since Tanner was decided, we have never relied on it to pretermit the correction
of a sentence that was illegally or improperly imposed. This is not surprising.
Four months after Tanner was decided, the Fifth Circuit Court of Appeals vacated
the panel decision on which Tanner had relied. The sole purpose of the rehearing
in bank was to disavow the passage that Tanner had quoted. (United States v.
Denson (5th Cir. 1979) 603 F.2d 1143, 1145 [„En banc we differ only with that
panel‟s final decision not to issue the writ‟].) „We do not perceive that granting
the petition [for writ of mandamus] would work a substantially greater hardship on
the defendants than would have been exacted by a lawful sentence imposed
initially. The mere fact that the defendants have psychologically prepared
themselves for a total of one year‟s incarceration and may, as a result of our
action, have their expectations frustrated does not compel a different result. The
trial judge may take into account any difficulties caused by resentencing when he
imposes a new and legal sentence just as he may consider any other appropriate
factors when they militate toward lenity or severity.‟ (Id. at p. 1148.)
“Like the Fifth Circuit, we cannot discern how the imposition of a harsher
sentence on appeal, should that occur, would work a substantially greater hardship
on defendant. „ “The Constitution does not require that sentencing should be a
game in which a wrong move by the judge means immunity for the prisoner.” ‟
[Citation.] We are unaware of any authority that provides „the defendant with the
right to know at any specific moment in time what the exact limit of his
punishment will turn out to be. . . . His legitimate expectations are not defeated if
his sentence is increased on appeal any more than are the expectations of the
defendant who is placed on parole or probation that is later revoked.‟ [Citation.]”
(People v. Statum, supra, 28 Cal.4th at p. 696.)
Statum also observed that Court of Appeal decisions had subsequently
“limited Tanner to circumstances in which (1) the defendant has successfully
completed an unauthorized grant of probation; (2) the defendant has returned to a
law-abiding and productive life; and (3) „unusual circumstances‟ generate a
„unique element‟ of sympathy, such that returning the defendant to jail „would be
more than usually painful or “unfair.” ‟ (People v. Lockridge (1993) 12
Cal.App.4th 1752, 1759 [collecting cases].)” (People v. Statum, supra, 28 Cal.4th
at pp. 696-697, fn. 5.) Because the defendant in Statum could not satisfy this test,
we found it unnecessary to decide whether Tanner remained “good law.” (People
v. Statum, supra, 28 Cal.4th at p. 697, fn. 5.)
We likewise find it unnecessary here to decide whether Tanner remains
good law. The unfairness in Tanner arose from the prospect of the defendant
serving a specified term in prison when he had already “complied with his
conditions of probation—including one year‟s stay in county jail.” Under those
circumstances, we said “a second incarceration would be unjust.” (Tanner, supra,
24 Cal.3d at p. 522; see also People v. Holt (1985) 163 Cal.App.3d 727, 734.)
Here, by contrast, even if the trial court reinstates the judgment and recalculates
defendant‟s credits, there is no prospect that Clancey would be asked “to now
serve a second term for his criminal act” (Tanner, supra, 24 Cal.3d at p. 521) or to
“suffer a punishment in excess of the legal maximum.” (People v. Statum, supra,
28 Cal.4th at p. 696.) In particular, he would not be asked to serve a term of
probation (with a jail term) and a prison term. All that occurred here is that his
prison term was erroneously calculated; the days of credit erroneously awarded
were days that he should have—but did not—serve in custody. Because those
days were not served in county jail or on probation, no issue of a “second
incarceration” or “second term” arises.
Defendant relies also on In re Messerschmidt (1980) 104 Cal.App.3d 514,
which (in dicta) opined it would be fundamentally unfair to “allow[] a prisoner
who has established himself as a productive member of society over a long period
of time to have his good work destroyed by recommitment.” (Id. at p. 516.) We
need not decide whether that dicta is correct (see United States v. Sanders (6th Cir.
2006) 452 F.3d 572, 577, fn. 4, 582-583 [declining to recognize such a claim
under due process]; Hawkins v. Freeman (4th Cir. 1999) 195 F.3d 732, 750
[same]), because defendant has not shown that he “over a prolonged period of
time, [became] a respected, productive, law-abiding member of society.”
(Messerschmidt, supra, 104 Cal.App.3d at p. 516, italics added.) Only five
months elapsed between defendant‟s release from prison in April 2012 and the
Attorney General‟s attempt in this court to correct defendant‟s sentence. That
brief gap of liberty would not entitle him to extraordinary relief from serving his
lawful sentence even under the cases on which he relies. (Cf. Johnson v. Williford
(9th Cir. 1982) 682 F.2d 868, 872 [15 months elapsed between the defendant‟s
erroneous release on parole and his arrest; government had misapplied or
misinterpreted the parole rule in defendant‟s favor in “at least eight separate
administrative reviews”]; United States v. Merritt (D.D.C. 1979) 478 F.Supp. 804,
806 [nearly three years elapsed between release and re-arrest to finish consecutive
sentence]; Derrer v. Anthony (Ga. 1995) 463 S.E.2d 690, 693 [seven years]; State
v. Kline (La. 1985) 475 So.2d 1093, 1093 [18 months, during which “the criminal
sheriff and district attorney‟s office were fully aware of the situation and took no
action”]; Commonwealth v. Ly (Mass. 2007) 875 N.E.2d 840, 843 [16 years].)

We modify the judgment of the Court of Appeal to delete the direction to
the trial court “to vacate defendant‟s pleas and admissions” and provide instead
that the trial court shall rehear and reconsider defendant‟s conditional plea in
accordance with the views expressed herein. (See Felmann, supra, 59 Cal.App.3d
at pp. 277-278.) If the plea is accepted, the trial court is to reinstate its judgment,
except as to the award of presentence conduct credits, which are to be
recalculated. (See People v. Lara, supra, 54 Cal.4th at p. 900; People v. Statum,
supra, 28 Cal.4th at pp. 696-697, fn. 5.) As so modified, the judgment of the
Court of Appeal is affirmed.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Clancey

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 202 Cal.App.4th 790
Rehearing Granted


Opinion No.

Date Filed: April 18, 2013


County: Santa Clara
Judge: Rene Navarro



Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Eric D. Share, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys
General; and Jeffrey Francis Rosen, District Attorney, for Plaintiff and Appellant.

Dallas Sacher, under appointment by the Supreme Court, for Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Laurence K. Sullivan
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5849

Dallas Sacher
100 N. Winchester Boulevard, Suite 310
Santa Clara, CA 95050
(408) 241-6171

Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: Did the trial court's actions in this matter constitute an unlawful judicial plea bargain rather than a lawful indicated sentence?

Opinion Information
Date:Citation:Docket Number:
Thu, 04/18/201356 Cal.4th 562, 155 Cal.Rptr.3d 485, 2013 WL 1667822S200158

Opinion Authors
OpinionJustice Marvin R. Baxter

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May 28, 2013
Annotated by Thomas Rubinsky


Defendant Wesley Cian Clancey pleaded nolo contendere (no contest) to a slate of charges (mostly theft related) and was sentenced to five years in state prison by the Superior Court of Santa Clara County. The five-year sentence was offered by the judge and calculated under the trial court’s discretion under Penal Code Section 1385 to dismiss certain sentencing enhancements. (Section 1385 is available here: Because the five-year sentence was calculated with the assumption that certain enhancements (an on-bail enhancement and a previous strike enhancement) would be dismissed, it is significantly lower than the maximum available sentence for the crimes Clancey was charged with.

During the judge’s discussion with Clancey, certain statements made by the judge could lead to the impression that the offered five-year sentence was more like a bargained sentence than an indicated sentence. For example, the judge explicitly told Clancey that Clancey could later withdraw his no contest pleas if the court did not follow through with the five-year sentence that the judge had determined was the correct sentence. Indicated sentences are offered as a preview into what the judge is thinking in terms of sentencing, and are not binding on the judge in the same way that a plea bargain’s reduced sentence is binding on a prosecutor. In other words, indicated sentences can be altered by the court whenever a judge deems the alteration to be in the interest of justice, and is no way tied to a defendant’s acceptance or rejection of a plea.

The prosecutor therefore alleged that the judge’s offer to dismiss the sentencing enhancements in his calculation of the sentence was intended to induce Clancey into submitting a plea and therefore to avoid trial. This kind of inducement, also called judicial plea bargaining, is illegal in California.

Procedural History

The prosecution, representing the People of California, appealed the trial court’s five-year sentence, alleging that it was the result of illegal judicial plea bargaining. A divided panel on the California Court of Appeal agreed, and vacated Defendant’s pleas and admissions. Defendant appealed to the California Supreme Court, alleging that the sentence was not the result of an illegal plea bargain but was instead a proper use of a judge’s ability to give an indicated sentence. Defendant alleges that because there was no improper inducement, the five-year sentence should stand.


This case hinges on the difference between an ‘indicated sentence,’ a legal and efficient tool for disposing of cases without the burden of a full trial if a just determination can be otherwise agreed on, and a ‘judicial plea bargain,’ which is an illegal infringement on the executive branch’s authority to prosecute cases and operates in derogation of the judge’s role as a neutral overseer. Because the Supreme Court finds that the trial court record does not provide enough information to decide whether the sentencing was an indicated sentence or a judicial plea bargain, the Supreme Court lays out the rule for lower courts to follow when determining whether or not the sentence can be upheld.

An additional minor issue was whether Clancey, who had already been released from custody at the date of the decision but would have to return to prison because of a miscalculation in presentence conduct credits, would face some sort of undue hardship under People v. Tanner (1979) 24 Cal.3d 514. (The Tanner opinion is available here: The California Supreme Court, however, finds that Tanner analysis is not proper here, that Tanner may no longer even be good law, and that Clancey’s return to prison would not be unjustly burdensome.


The record from the trial court was ambiguous as to whether the sentence was what the trial court thought was appropriate for this defendant on these charges—regardless of whether Clancey was convicted by plea or following trial— making it an indicated sentence, or whether the sentence reflected what the court thought was necessary to induce the Defendant to enter a plea, making it a judicial plea bargain.

The case is sent back to the trial court to conduct the procedure in accordance with the law set out in this opinion. If the judgment is reinstated, Clancey’s presentence credits must be recalculated, meaning that he may have to return to prison for a brief period to serve out the remaining days that were inaccurately credited to him by the trial court.


To aid the lower court on remand, the California Supreme Court laid out the following guidance and points of law on the proper use of indicated sentences and how indicated sentences differ from plea bargains:

Plea bargains are agreements between prosecutors and defendants that are approved by courts. The charging function (where individuals are charged with misconduct by the state) belongs solely to the prosecutor as a representative of the executive branch in exercising the police power, and the judiciary may not substitute itself into the plea negotiation process on behalf of the prosecution. Courts may not agree to a bargain with the defendant over the prosecution’s objection.

Once a defendant pleads guilty to all charges, however, and all that remains is the pronouncement of charges and sentencing, there is no requirement that the prosecution consent to, or agree with, the entered guilty plea. At that point, the court may lawfully indicate what sentence it will impose, regardless of whether guilt was established by trial or by plea. A trial court may not bargain with a defendant over a sentence.

When providing an indicated sentence, a judge must be aware of the completeness of information in the record, as yet unknown information gathered later may affect sentencing.

When a court indicates a sentence, it makes no promise that that sentence will be imposed. Courts retain full discretion to impose fair and just sentences, and that may require a court to refine or alter the sentence at a later point.

Out of respect for the executive’s role in the plea bargain negotiation, judges should generally (absent unusual circumstances) not announce the indicated sentence while a potential plea bargain negotiation is still underway.

Courts may not offer any inducement to a defendant for a plea of guilty or nolo contendere. Courts may not treat a defendant more leniently because she has entered a pre-trial plea, and may not treat a defendant more harshly because she chose to exercise her right to a full trial.

Because there is no clear bright line difference between an indicated sentence and an illegal inducement, it is useful for a court to explicitly state that it is giving an indicated sentence. A mere statement that a court is giving an indicated sentence, however, is not enough to prove that a judge has not interfered with the prosecutor’s role in negotiating dispositions. Thus, a trial court should not only explicitly state that it is giving an indicated sentence but also make clear that the sentence represents the court’s best judgment as to the appropriate punishment for that particular defendant in that particular case.

Judges may exercise their sentencing discretion under Penal Code section 1385 to dismiss sentencing enhancements when they indicate a sentence. Similarly, judges may exercise their discretion to strike a prior strike under the Three Strikes Law when contemplating their indicated sentence. Dismissing a strike allegation in sentencing is not tantamount to plea bargaining, and the Three Strikes Law does not constrain a judge’s power to formulate an indicated sentence.

On remand, if the trial court makes clear that the five-year sentence was not intended to induce the defendant into making a plea and that it represents the best judgment of the court on what the appropriate punishment is for Mr. Clancey, the sentence should be reinstated.


Criminal Law, California Sentencing, Plea Bargains, Plea Bargaining, Indicated Sentences, Indicated Sentencing, Sentencing, Judicial Discretion, Judicial Plea Bargaining, Judicial Plea Bargain, Separation of Powers in Sentencing, Fatally Ambiguous Record, Inducement in Plea Bargaining, Nolo Contendere, No Contest, Sentencing Enhancements, Criminal Procedure, Abuse of Discretion, Remand for Clarification, Three Strikes Law, Penal Code Section 1385

By Thomas Rubinsky