Filed 4/2/13 P. v. Alvarez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. BOBBY ANGEL ALVAREZ, Defendant and Appellant. G046490 (Super. Ct. No. 08HF1565)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, Gregg L. Prickett, Judge. Revers ed and remanded with directions. Christian C. Buckley, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys Genera l, for Plaintiff and Respondent.
* * *2 INTRODUCTION Defendant Bobby Angel Alvarez app eals from the judgment of conviction entered against him after a jury trial. Befo re trial, the prosecuti on had offered defendant a negotiated disposition by whic h defendant would plead guilty to an assault offense and, inter alia, be placed on formal probation unde r terms and conditions including that he serve 365 days in jail. De fendant accepted the prosecuti on’s offer, but the trial court refused to accept the agreement.
We reverse. Based on the record befo re us and for the reasons we explain in detail, the trial court erred by not acc epting the negotiated disposition agreement reached by defendant and th e prosecution. The only su itable remedy is specific enforcement of defendant’s written nego tiated disposition agreement with the prosecution; therefore, on remand, we direct the trial court to accept that agreement.

PROCEDURAL BACKGROUND
Defendant and c odefendant Richard Anthony Fuentez III (Fuentez) were charged in an information with (1) assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) 1 (count 1); (2) assault by means of force likely to produce great bodily injury in violation of s ection 245, subdivision (a)(1) (count 2); and (3) battery inflicting serious bod ily injury in violation of section 243, subdivision (d) (count 3). Defendant alone was charged in the information with po ssession of a deadly weapon, namely, brass knuckles in violation of former s ection 12020, subdivision (a)(1) (count 4). As to counts 1 and 2, the inform ation alleged, pursuant to section 12022.7, subdivision (a), and within th e meaning of sections 1192. 7 and 667.5, defendant and Fuentez personally inflicted great bodily in jury on Shane Kral, who had not been an

1 All further statutory references are to the Penal Code.3 accomplice during the commission and atte mpted commission of those offenses. 2 The charges arose out of a fight in a restaurant and bar. On the date set for trial, defendant and Fuentez agreed to the prosecution’s
offer in which defendant and Fu entez would each plead guilty to a single count of assault, and be placed on probation under certain te rms and conditions. (Defendant’s negotiated disposition agreement was conditioned on, inter alia, his serving 365 days in jail.) The trial court started to take their pleas, review ing with defendant and Fuentez the rights they were giving up by pleading guilty as set forth in the completed Tahl 3 forms they had
submitted to the court. Defendant’s Tahl form, which sets forth his negotiated disposition agreement with the prosecution, is part of our record. The trial court
confirmed with defendan t the statement in his Tahl form, setting forth the factual basis for his plea, was a true statement. After the court confirmed with Fuentez the truth of the
factual basis statement in his Tahl form, the court asked Fuen tez, “how do you plead?” Fuentez responded, “[g] uilty, Your Honor.” The court then stated, “[w]e are off the
record.” Upon resuming proceedings on the reco rd, the trial court asked Fuentez if he had any questions about what he was doing , and Fuentez said, “[n]o.” The court also asked, “Mr. Fuentez, do you wish me to accept your plea of guilty?” Fuentez responded, “[y]es, Your Honor.” The court then found a knowing, intelligent, voluntary waiver of Fuentez’s constitutional rights and a factua l basis for the plea . Fuentez waived arraignment and time for sentencing; the cour t, the prosecutor, and Fuentez’s counsel

2 Although not relevant to the issue pr esented in this appeal brought only by defendant, the information also alleged, purs uant to section 667.5, subdivision (b), that Fuentez had suffered two prior convictions for each of which he served a separate prison term. The information did not allege any prior conviction en hancement allegations as to defendant. 3 In re Tahl (1969) 1 Cal.3d 122.4 discussed Fuentez’s possible sentence. The c ourt again stated they were going “[o]ff the
record.” When the proceedings went back on the record, the court adjourned proceedings for the day withou t returning to the plea of defendant or Fuentez. The following morning, Fuentez informed the trial court that he had changed his mind and wished to go to trial on the charged offenses against him. The
court did not then address the status of de fendant’s plea, but bega n addressing pretrial issues. The court granted defendant’s counse l’s request to “lay a record as to our
off-the-record discussions.” Defendant’s c ounsel asserted that notwithstanding the package nature of th e original negotiated disposition agreements, the prosecution had agreed to offer defendant alone the same negotiated disposition agreement it had offered
defendant before Fuentez dec lined the negotiated disposition agreement offered to him.
The court confirmed defendant’s counsel’s statement that the court would not accept a negotiated disposition agreement between the prosecution and defendant alone. According to the court, such an agreement would have to al so include Fuentez for court approval. A jury was selected the following day. The jury found defendant guilty on all four counts, and found that defendant ha d personally inflicted great bodily injury on
Kral in the commission of counts 1 and 2 as alleged in the informat ion. The jury found Fuentez not guilty as to each of th e counts charged against him. The trial court imposed a total prison term of six years eight months, but suspended execution of that se ntence. The court placed de fendant on formal probation for five years, conditioned on, inter alia, defe ndant serving 365 days in jail. Defendant appealed.5 DISCUSSION
Defendant’s sole contention in this a ppeal is that the trial court erred by rejecting the negotiated disposition agr eement defendant had reached with the prosecution. For the reasons we will explain, we agree with defendant.

I.
G OVERNING L EGAL P RINCIPLES AND S TANDARD OF R EVIEW “Plea negotiations and agreements are an accepted and ‘integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.’ [Citations.] Plea agreements benefit that system by promoting speed, economy, and the finality of judgments.” ( People v. Segura (2008) 44 Cal.4th 921, 929.) “[T]he process of plea negotiation ‘contempl ates an agreement negotiated by the People and the defendant and appr oved by the court.’” ( Id. at pp. 929-930.) The trial court’s approval “‘is an essential condition preceden t to the effectivene ss of the “bargain” worked out by the defense and prosecution.’” ( Id. at p. 930.) “[T]he trial court may decide not to approve the terms of a plea agreement negotiated by the parties. [Citation.] If the court does not believe the agreed-upon disposition is fair, the court ‘need not approve a bargain re ached between the prosecution and the defendant, [but] it cannot change that bargain or agreemen t without the consent of both parties.’” ( People v. Segura , supra , 44 Cal.4th at p. 931.) “In exercising their discretion to appr ove or reject proposed plea bargains, trial courts are charged with the protection and promotion of the public’s interest in vigorous prosecution of the accused, im position of appropriat e punishment, and protection of victims of crimes . [Citation.] For that reason, a trial court’s approval of a proposed plea bargain must represent an inform ed decision in furtherance of the interests of society [citation]; as recognized by both th e Legislature and the judiciary, the trial6 court may not arbitrarily abdicate that responsibility.” ( In re Alvernaz (1992) 2 Cal.4th 924, 941.) “For example, in People [ v. ] Orin [ (1975)] 13 Cal.3d [937 ,] 943-944, [the Supreme Court] held that the underlying pur pose of the statutory requirements governing
dismissal of counts under section 1385 wa s to protect the public interest against ‘improper or corrupt dismissals ,’ and to impose a purposeful restraint upon the exercise of judicial power.” ( Ibid .) The United States Supreme Court rece ntly reiterated the importance of the plea bargaining process in our judicial system in Missouri v. Frye (2012) 566 U.S. __, __ [132 S.Ct. 1399, 1407], st ating: “The reality is that plea bargains have become so central to the administration of the criminal ju stice system that defense counsel have responsibilities in the plea bargain process, resp onsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours ‘is for the most part a system of pleas, not a system of trials,’ [citation], it is insuffi cient simply to poin t to the guarantee of a fair trial as a backstop that inoculates any errors in the pret rial process. ‘To a large extent . . . horse trading [between prosecutor and defense coun sel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system .’ [Citations.] In toda y’s criminal justice system, therefore, the negotiation of a plea bargain, rath er than the unfolding of a trial, is almost always the critical point for a defendant.” 4 The United States Supreme Court further stated: “To note the prevalence of plea bargai ning is not to criticize it. The potential to conserve valuable prosecutorial resources a nd for defendants to ad mit their crimes and

4 The United States Supreme Court noted that 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas. ( Missouri v. Frye , supra , 566 U.S. at p. __ [1 32 S.Ct. at p. 1407].)7 receive more favorable terms at sentencing means that a plea agreem ent can benefit both parties.” ( Id. at p. __ [132 S.Ct. at p. 1407].) 5

II.

D ETAILED C HRONOLOGY OF H EARINGS A DDRESSING THE P ROSECUTION ’ S AND D EFENDANT ’ S N EGOTIATED D ISPOSITION A GREEMENT

. A. Pretrial Hearings on Defendant’ s Negotiated Disposition Agreement During the hearing on November 29, 2 011, the date set for trial, the court addressed the prosecution’s offers for negotia ted disposition agreements that had been
extended to Fuentez and defendant. Fuente z initially informed the court that he was going to reject the offer. He explained he had “uncertainties about the restitution hearing” because he did not “know what [he]’ll end up paying.”
The trial court then asked defendan t whether he wished to accept the prosecution’s offer. Defendant stated he deci ded to accept the prosecution’s offer. The
court told defendant to “[f]ill out the forms.” That same day, a Tahl form, signed by defendant, defendant’s counsel, and the prosecutor, was filed in the trial court. The Tahl form stated defendant agreed to plead guilty to one count of a ssault with a deadly weapon in violation of section 245, subdivision (a)(1) and be sent enced to three years’ formal probation with terms and conditions including he serve 365 days in jail; the prosecutor agreed to dismiss the

5 The United States Supreme Court, quoti ng a law review article, further stated: “‘[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropri ate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other indivi duals who are less morally culpable but take a chance and go to trial.’” ( Missouri v. Frye , supra , 566 U.S. at p. __ [132 S.Ct. at p. 1407].)8 remaining charges and enhancemen ts. (A copy of defendant’s Tahl form is included in the clerk’s transcript at pages 175 through 182.) That afternoon, the trial court ac knowledged on the record that both
defendant and Fuen tez had submitted Tahl forms to the court. 6 The court further stated, “the law requires I go over these with you.” The court proceeded to go over certain rights
in the Tahl form with defendant and Fuentez. Ea ch stated his understanding of the rights he would be giving up by plea ding guilty in acco rdance with his respective negotiated disposition agreement.
The trial court then asked Fuentez ho w he wished to plead to count 2, assault by force likely to produce great bodily injury. Fuentez respon ded, “[g]uilty, Your Honor.” Fuentez’s counsel joined in Fuen tez’s waiver. The court stated it found “a knowing, intelligent, voluntary waiver of Mr. Fuentez’s cons titutional rights” and found a factual basis for the plea. Following off-the-record discussi ons and a brief discussion of Fuentez’s possible sentence—without an ex planation on the record—the trial court abruptly concluded the hearing for the day, sa ying, “[w]e’re done. Sorry. This shouldn’t be this hard. Gentlemen, you’re ordered to return back to this court 9:15 tomorrow morning. Regrettably, we have not ordered ju rors, but we’re going to see what’s going to happen tomorrow morning at 9:15.” The following morning, on November 30, 2011, the trial court asked Fuentez: “[T]he court’s offer to you is that I will accept this plea if you will agree to probation with terms and conditions of probati on if you were to pay off the court-ordered criminal restitution and that pr obation would terminate. [¶] Do you understand that, sir?”
Fuentez answered he understood but was not willing to accept the offer. After confirming Fuentez’s understanding that he was risking prison time by rejecting probation, the court started discussing jury selection and other pretrial matters.

6 Fuentez’s Tahl form is not included in our record.9 Defendant’s counsel then raised the issue of the status of defendant’s negotiated disposition agreement and the trial court granted defendant’s counsel’s request to be given the opportun ity to create “a record as to [t he] off-the-record discussions” that
had occurred on that issue. The following colloquy shows defendant’s counsel confirmed with the court that the prosecution’s negotia ted disposition offer to defendant remained on the table, notwithstanding Fuen tez’s decision to go to trial, 7 that defendant accepted the prosecution’s offer, and that the court re jected the negotiated disposition agreement: “[Defendant’s counsel]: It’s my unde rstanding that the People had offered my client an opportunity to sever himsel f from the case and acc ept the deal as we understood it to be, which was a year in county jail with certain terms and conditions. It
is the court’s belief that the ca se should not be severed, that the court wouldn’t accept my client to accept the deal without having the co -defendant, Mr. Fuentez; is that correct?
“The Court: Correct. I said I woul d not hold it against your—your client obviously, but that I was not inclined to, on the day of tr ial, sever a case like this. “[Defendant’s counsel]: Very well. Just in terms of a trial task for my client obviously being forced to go to trial, I suspect that the court would— “The Court: Your client can plead gu ilty anytime he wants. I’m not saying he cannot plead guilty. I’m sa ying I’m not going to accept a plea bargain on this case. “[Defendant’s counsel]: Correct. Bu t pleading guilty would mean that he
would have to ob viously plead guilty to the sheet to the court, which would obviously require him to plead to two strikes, which is not—which he’s not interested in doing. “The Court: Okay.

7 The prosecutor was present in court duri ng this discussion a nd did not object to defendant’s counsel’s statements regarding the status of the prosecution’s offer to defendant. In the respondent’s brief, the A ttorney General acknowledges, “it appears the prosecutor ultimately agreed to allow [defendant] to enter the plea individually.”10 “[Defendant’s counsel]: But—but I hope, the court for sentencing purposes, if he’s found guilty, the court would not impose a sentence greater than what he would have accepted. “The Court: I’m not making that commitment, sir. The law does not require I make that commitment. “[Defendant’s counsel]: Okay. Well, just for the record, my client would have taken the deal. Obviously, he doesn’t want to take two strikes with the court. “The Court: Okay. Noted, sir. [¶ ] I believe yesterday the defendant, Mr. Fuentez, had entered a plea. The court is going to set aside those pleas at this time, and there will be no entry of that plea. The People are in no way to mention any type of admission that occurred by the factual basis of either defendant.” The court concluded the hearing by scheduling jury selection on the following morning. On the following morning, December 1, defendant’s counsel again raised the subject of the trial court’s rejection of defendant’s negotiate d disposition agreement
as follows: “[Defendant’s counsel]: Your Hono r, can I just—yesterday when we had our chambers discussion about the proposed di sposition that the court rejected, I didn’t really get a chance to lay my sp ecific objection. I feel that I need to preserve that for appellate purposes. May I? “The Court: You may. “[Defendant’s counsel]: Essentially I understand that judicial approval is a condition present [ sic ] to the court accepting our plea ba rgain. It’s my understanding that the court did not want to accept my client’s disposition with the Peop le without having it been a package deal. Just for th e record, I want to object that I do believe that that refusal for the court to accept our terms—it just appeared it wasn’t the terms of our deal. It was the issue, but rather having both parties accept that.11 “The Court: It was also your client ’s reluctance to en ter into the plea agreement that your client several times paused, needed to talk to you to go through it. I was not prepared to find a know ing, intelligent, voluntary waiv er of your client at that point. Then once the deal furthe r fell apart, I then became ve ry reluctant. In fact, I’m relieved. I wasn’t sure that your client was fully and completely in agreement to do that, that—let me finish. [¶] Whenev er there is a situation of a package deal, there always is the potential. I’m always mindful of this of the coercive nature that not only is it in my best interest, but if I don’t do this, then my buddy doesn’t get the deal and I feel bad because, you know, this could ex pose my buddy to more time, things like that. So I was examining all of that when I made my statement, not simply, you know, that both defendants accept or both defendants don’t accept. “[Defendant’s counsel]: May I? “The Court: You may. “[Defendant’s counsel]: With all due respect, I did not necessarily see the
same issues that the court sa w about my client’s voluntariness of entering into the plea bargain. He did have questions for me about the issues of tim e that he’d have to serve, that were more to the specifics of the term s and conditions of the plea bargain. But obviously, you having seen th ousands of cases and spent ye ars on the bench, I assume correctly, the court has seen relu ctance on behalf of clients, at least defendants to accept plea bargains. I wouldn’t have joined in the court’s opinions that my court—if my client had an unwillingness to enter into the plea bargain, it was not knowing, intelligent or voluntary. [¶] I understand the court’s reasoning to us, now for the firs t time. It wasn’t discussed yesterday, but just I respect your opinion and the rules that you have imposed. I just want to preserve the objection that I do believe that it violates my client’s federal and state due process rights and based on that, I submit.
“The Court: Noted.”12 B. The Court’s and Defendant’s Counsel’s Di scussion of Defendan t’s Written Negotiated Disposition Agreement at the Sentencing Hearing After the jury found defendant guilty on all four counts as charged and found the enhancement allegations true, the trial court imposed a sentence of six years eight months in prison but then suspended ex ecution of that sentence and imposed five years’ formal probation because of the “unusu al circumstances” of the case. The unusual
circumstances included that the offenses occu rred during a bachelor party at a location defendant does not frequent, he is young and has “no significant prior record” (the information did not allege defendant had su ffered any prior convic tions), he has a strong support system, and he did not make excuses fo r his conduct. The court stated that this case was “unusual from the classic bar fight [w here] someone gets r eally badly injured, you should be sent to prison.” The court warned defendant, howe ver, that he now had
two strikes on his record. The terms and co nditions of defendant’s formal probation included defendant serving 365 days in jail. Defendant’s counsel again raised th e issue of the rejected negotiated disposition agreement: “[Defendant’s counsel]: . . . [¶] Wh en we came here and announced ready for trial, the court saw two defendants here. The People and I, right before trial, have always discussed that this was going to be a pa ckage case. [¶] Before we actually started trial, [the prosecutor] offered me an opport unity to have my clie nt plead guilty to one
nonstrike [8] count to 245 and to have him conduct 365 days in jail. [¶] It was the court

8 Our record consistently shows the only negotiated disposition agreement offered to defendant by the prosecution was that set forth in the Tahl form and wh ich required defendant to plead guilty to count 1—violation of sectio n 245, subdivision (a)(1). As the basis for his plea, defendant admitted he co mmitted the assault “wit h a deadly weapon” and defendant initialed the “strike offe nse” portion of paragraph 12 of the Tahl form. In13 who refused to accept that plea bargain on th e condition that both pa rties had to accept
the deal. “The Court: And in retrospect, under People vs. Clanc [ e ] y , [9] the court was correct in doing that, as I believe it’s the Th ird District that has now ruled that would be an illegal plea bargain. “[Defendant’s counsel]: Well— “The Court: So—but I note that, sir, be cause the People could not state that they were unable—that this case would thus qualify under one of the reasons under 1192.7. I never heard the People state that. “[Defendant’s counsel]: But the c ourt never asked the People to provide any statements either to that. “The Court: You are aware of the fact, sir, that I did earlier state that I am mindful of the discussions that happened in this case. You’re also aware of the fact, sir, that pretrial negotiations are not a valid consideration at sentencing. “[Defendant’s counsel]: This—Your Honor, with all due respect, I’m not going into the pretrial considerations.

his reply brief, defendant argues it was error fo r the trial court to fail to complete taking defendant’s plea after reviewing the entire Tahl form with defendant “and almost the entire oral plea was placed on the record.” Th e offense of assault w ith a deadly weapon in violation of section 245, subdivision (a)(1) constitutes a serious felony within the meaning of the “Three Strikes” law. (§§ 1192.7, subd. (c)(31) & 667; People v. Delgado (2008) 43 Cal.4th 1059, 1065 [assault with a de adly weapon in violation of section 245, subdivision (a)(1) is a serious felony and “[a] prior serious felony co nviction also counts as a strike”].) It thus a ppears defendant’s counsel’s stat ement at the sentencing hearing that the prosecution’s offer in volved defendant pleading to a single “nonstrike” count may well have been in error. Whether the written negotiated disposition agreement involved pleading guilty to a strike is not before us and has not been briefed by the parties. 9 A few months after the sentencing hearing, the California Supreme Court granted a petition for review that was filed in People v. Clancey (2012) 202 Cal.App.4th 790, review granted Ap ril 11, 2012, S200158.14 “The Court: Then why are you telling me? “[Defendant’s counsel]: The point is , my client took the stand and was forced to trial, not because this wasn’t a fair deal, but because the court wanted both parties to go to trial. He wa s willing to accept responsibility. “The Court: The court disagrees with that last statement. “[Defendant’s Counsel]: Very well. I don’t believe—and if I can just make my objections. I don’t believe judicial efficiency was found by having both parties go to trial. We would have had a shorter trial. My clie nt was willing to accept the deal. [¶] When we came back the next day to start trial, I laid my series of objections. Then the court said well, I didn’t th ink your client was voluntarily taking this deal. He was showing signs of hesitancy. That’s what the c ourt said right before we started trial. And that’s when I inquired of the court and said, Your Honor, my client had issues about the jail, had issues about the time he ’s going to have to do. [¶] He—he didn’t go to the issues of knowing, intelligent[,] volunta ry waivers. That was the court’s reasoning before we started trial, and I laid the rest of my objec tions when we started trial. [¶] My client then—strike that. [¶] Before we started trial, I asked the court, if we’re forced to trial,
will the court at least— “The Court: Sir, I’m not going to allow you to make this rambling statement to me. What is your objection? “[Defendant’s counsel]: I just have two more minutes. “The Court: What’s the objection?”
After defendant’s counsel and the cour t briefly discussed whether defendant was being excessively punished, defendant’s co unsel and the court engaged in this final discussion of the negotiated disposition agreement: “[Defendant’s counsel]: I guess my obj ection is I do feel that there was an abuse of discretion in not allowing my c lient to accept the plea bargain, that the suspended sentence and a year in county jail, the court essentia lly forced my client to go15 to trial. He picked up two strikes. He wo uld have had no strikes and he is serving the same amount of time. [¶] This case could have been resolv ed if the court would have accepted our plea bargain. And I object to the court, after the court ruled back then to say, you know, ‘he was showing si gns of hesitancy.’ [¶] In a ll my practice[] as a criminal defense attorney, if there are issues of he sitation, generally speaking, the court will inquire of counsel or the defendant of wh at the hesitation is and if it’s a knowing, intelligent[,] voluntary waiver. [¶] I felt that the court took it upon itself to force both parties to trial, and now my client has to deal with the suspended sent ence. [¶] I also felt that when you asked me about my pers onal views about the suspended sentence, obviously my objections were ba sed on the amount of county jail time. I think it is just excessive punishment. [¶] With that, I submit. We have the previous record obviously. “The Court: Sir, I’m not going to allow those statements to remain uncharged. So I’m just going to now have the final word here. “[Defendant’s counsel]: Sure. “The Court: First of all, contrary to my previous indicated sentence, I am not having the defendant waive hi s credits. Notice, I talked about that. But I’ve changed my mind on that. [¶] Second of all, that th e court always has the authority to decline a plea bargain especially on the day of trial, a nd especially in the situ ation that involves a serious and violent felony like this. [¶] So to somehow sugg est that I have abused my discretion in this regard, sir, is contrary to the record. [¶] And what you are—what you are doing, sir, is calling into question the factua l findings that I made previously. [¶] You have made your record on that. [¶] I have not sentenced your client more harshly for the direct consequences of going to trial than the plea bargain was. If he ends up being convicted of additional crimes, those were th e charged offenses that the defendant was facing. [¶] Now, back to my qu estion. Jail surrender date, sir? “[Defendant’s counsel]: Can I correct the court? “The Court: No, you may not, sir.16 “[Defendant’s counsel]: The court— “The Court: No, you may not, sir. “[Defendant’s counsel]: Can I make one comment? “The Court: No, you may not, sir. What about my statements— “[Defendant’s counsel]: You said— “The Court: What about my statements is not clear? I didn’t say— “[Defendant’s counsel]: Everything is clear. “The Court: Thank you.”

III.

T HE R ECORD D OES N OT S UPPORT THE T RIAL C OURT ’ S R EJECTION OF THE W RITTEN N EGOTIATED D ISPOSITION A GREEMENT A GREED TO BY THE P ROSECUTION AND D EFENDANT

. The record does not support the trial court’s rejection of defendant’s written negotiated disposition agreement. When defe ndant and Fuentez had each agreed to the terms of their respective written negotiated di sposition agreements as a “package deal,”
the trial court conducted a thorou gh review on the record of the Tahl forms with defendant and Fuentez. (At one point, the court accepted Fuentez’s plea and found a factual basis for his plea.) At no time, before or after trial, did the trial court make any findings or state that defendant’s written nego tiated disposition agreem ent as set forth on
his Tahl form was unfair or contra ry to the public interest.
Not until Fuentez decided to reject his negotiated disposition agreement,
did the trial court state it would refuse to accept defendant’s written negotiated disposition agreement. The co urt also acknowledg ed to defendant’s counsel that it had
done so because there was no lo nger a package deal. But that was not the trial court’s call; indeed, it was the prosecution’s call to determine whether to allow defendant to plead according to the terms of his written ne gotiated disposition agre ement after Fuentez17 elected to go to trial, and the prosecution chos e to keep its offer to defendant open. We have found no legal authority supporting th e trial court’s rejection of a negotiated disposition agreement on such a ground.
The trial court also stated it re jected defendant’s written negotiated disposition agreement because the court sensed hesitancy on defendant’s part in entering the plea. But the record does not support any such finding. The reporter’s transcript
shows that defendant asked his attorney questions duri ng the hearing on the written negotiated disposition agreement, but does not show that defendant’s assent to the terms of the written negotiated disposition agreem ent was anything ot her than voluntary, intelligent, and knowing. Alth ough defendant’s counsel told the court that defendant was not hesitant and wished to enter the plea in accordance with the written negotiated disposition agreement, the court did not ques tion defendant or counsel on this issue. In addition, the trial court stated that it was within the court’s discretion to reject a negotiated disposition agreement on the date set for trial, even though the court had been willing to accept a negotiated dispos ition agreement the afte rnoon before, which actually was the date set for trial. Furthermor e, the record shows the court had also been willing to accept the written negotiated dispositi on agreement as to de fendant on the date set for trial only if Fuentez had also accepted the agr eement that had been offered to him. At the first hearing on the agreement, the court told Fu entez, defendant, and their respective attorneys that “the court would accept no more negotiated pleas once [the court] order[ed] the jury panel.” According to the record, the jury panel had not been ordered at the time the court rejected defendant’s written negotiated disposition agreement. In the respondent’s brief, the Attorn ey General argues the trial court would have had to reject the pro ffered negotiated dis position agreement because it was illegal under section 1192.7, subdivis ion (a). But we cannot presume the trial court would have made such a determination. ( In re Alvernaz , supra , 2 Cal.4th at pp. 941-942, fn. 10 [“Our18 refusal to create a presumption of judicial approval of plea bargains applies to plea bargains subject to the proscriptions of secti on 1192.7, as well as to all other types of plea bargain”].) Based on the record before us, we conclude the trial court abused its discretion by rejecting defendant’s change of plea in accordance w ith defendant’s written negotiated disposition agreemen t. We note that the court and counsel made a good record of the proceedings, su fficient for appellate review.

IV.

U NDER THE C IRCUMSTANCES OF T HIS C ASE , THE A PPROPRIATE R EMEDY FOR THE T RIAL C OURT ’ S E RROR IN F AILING TO A CCEPT D EFENDANT ’ S W RITTEN

N EGOTIATED D ISPOSITION A GREEMENT I S S PECIFIC E NFORCEMENT

. We now turn to the issue of the appropriate remedy. In In re Alvernaz , supra , 2 Cal.4th at page 942, the California Supreme Court considered the appropriate remedy when the defendant’s counsel had been ineffective for failing to communicate a plea bargain offer to the defe ndant. Citing, inter alia, People v. Mancheno (1982) 32 Cal.3d 855, 861, the California Supreme Co urt stated, “California courts, however, generally disfavor the remedy of specific enfo rcement of a failed plea bargain” when it will limit the judge’s sentencing discretion. ( In re Alvernaz , supra , at p. 942.) 10

In People v. Mancheno , supra , 32 Cal.3d at pages 860-861, the Supreme
Court stated: “The usual reme dies for violation of a plea ba rgain are to allow defendant to withdraw the plea and go to tr ial on the original charges, or to specifically enforce the plea bargain. Courts find withdrawal of the plea to be the ap propriate remedy when specifically enforcing the bargai n would have limited the judg e’s sentencing discretion in light of the development of additional info rmation or changed circumstances between

10 The court noted, “[s]pecific enforcem ent of a failed plea bargain is not a remedy required by the federal Constitution.” ( In re Alvernaz , supra , 2 Cal.4th at p. 942.)19 acceptance of the plea and sentencing. Specif ic enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsu itable under all the circumstances.” The Supreme Court further explained: “‘Specific enforcement of a plea bargain agreement is actually a broad term cove ring several different types of relief. The remedy differs depending upon the nature of the breach and which party is seeking specific enforcement. When the breach is a refusal by th e prosecutor to comply with the agreement, specific enforcemen t would consist of an order directing the prosecutor to fulfill the bargain. When the breach is a re fusal by the court to se ntence in accord with the agreed upon recommendati on, specific enforcement would entail an order directing the judge to resentence the defe ndant in accord with the agr eement. The People as well as a defendant may seek such specific enforcem ents. The effect is to limit the remedy to an order directing fulfillment of the bargain. In such instances, the defendant is not allowed to withdraw his guilty plea.’” ( People v. Mancheno , supra , 32 Cal.4th at p. 861.) Here, the trial court did not determ ine the terms of defendant’s written negotiated disposition agreem ent as set forth in the Tahl form were unfair or otherwise against the public interest. Therefore, specific enforcement of defendant’s written negotiated disposition agreemen t would not infringe on the trial court’s discretion to determine such an agreement to be unsuitable. Furthermore, the terms of defendant’s written negotiated disposition ag reement were offered by th e prosecution and accepted by defendant. Under these circumstances, the on ly remedy that would address the error at issue in this case is the sp ecific enforcement of defendant ’s written negotiated disposition agreement.20 DISPOSITION The judgment is reversed. On remand, we direct the trial court to accept defendant’s plea in accordan ce with the terms of defe ndant’s written negotiated disposition agreement contained in our record in the clerk’s transcript at pages 175 through 182.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.