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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 Superior Court of Orange County, 

Gregg L. Prickett, Judge. Reversed and remanded with directions. 

 Christian C. Buckley, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa 

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

INTRODUCTION 

 Defendant Bobby Angel Alvarez appeals from the judgment of conviction 

entered against him after a jury trial. Before trial, the prosecution had offered defendant 

a negotiated disposition by which defendant would plead guilty to an assault offense and, 

inter alia, be placed on formal probation under terms and conditions including that he 

serve 365 days in jail. Defendant accepted the prosecution’s offer, but the trial court 

refused to accept the agreement. 

 We reverse. Based on the record before us and for the reasons we explain 

in detail, the trial court erred by not accepting the negotiated disposition agreement 

reached by defendant and the prosecution. The only suitable remedy is specific 

enforcement of defendant’s written negotiated disposition agreement with the 

prosecution; therefore, on remand, we direct the trial court to accept that agreement. 

PROCEDURAL BACKGROUND 

 Defendant and codefendant 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 section 245, subdivision (a)(1) (count 2); and 

(3) battery inflicting serious bodily injury in violation of section 243, subdivision (d) 

(count 3). Defendant alone was charged in the information with possession of a deadly 

weapon, namely, brass knuckles in violation of former section 12020, subdivision (a)(1) 

(count 4). As to counts 1 and 2, the information alleged, pursuant to section 12022.7, 

subdivision (a), and within the meaning of sections 1192.7 and 667.5, defendant and 

Fuentez personally inflicted great bodily injury on Shane Kral, who had not been an 

 1

 All further statutory references are to the Penal Code. 
3

accomplice during the commission and attempted 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 Fuentez would each plead guilty to a single count of assault, 

and be placed on probation under certain terms 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, reviewing with defendant and Fuentez the rights they 

were giving up by pleading guilty as set forth in the completed Tahl3

 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 defendant 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 Fuentez, “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 record, 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 factual basis for the plea. Fuentez waived 

arraignment and time for sentencing; the court, the prosecutor, and Fuentez’s counsel 

 2

 Although not relevant to the issue presented in this appeal brought only by 

defendant, the information also alleged, pursuant 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 enhancement allegations as to 

defendant. 

3

 In re Tahl (1969) 1 Cal.3d 122. 
4

discussed Fuentez’s possible sentence. The court again stated they were going “[o]ff the 

record.” 

 When the proceedings went back on the record, the court adjourned 

proceedings for the day without 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 defendant’s plea, but began addressing pretrial 

issues. The court granted defendant’s counsel’s request to “lay a record as to our 

off-the-record discussions.” Defendant’s counsel asserted that notwithstanding the 

package nature of the original negotiated disposition agreements, the prosecution had 

agreed to offer defendant alone the same negotiated disposition agreement it had offered 

defendant before Fuentez declined 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 also 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 had personally inflicted great bodily injury on 

Kral in the commission of counts 1 and 2 as alleged in the information. The jury found 

Fuentez not guilty as to each of the counts charged against him. 

 The trial court imposed a total prison term of six years eight months, but 

suspended execution of that sentence. The court placed defendant on formal probation 

for five years, conditioned on, inter alia, defendant serving 365 days in jail. Defendant 

appealed. 
5

DISCUSSION 

 Defendant’s sole contention in this appeal is that the trial court erred by 

rejecting the negotiated disposition agreement defendant had reached with the 

prosecution. For the reasons we will explain, we agree with defendant. 

I. 

GOVERNING LEGAL PRINCIPLES AND STANDARD OF REVIEW

 “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 ‘contemplates an agreement negotiated by the People 

and the defendant and approved by the court.’” (Id. at pp. 929-930.) The trial court’s 

approval “‘is an essential condition precedent to the effectiveness 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 reached between the prosecution 

and the defendant, [but] it cannot change that bargain or agreement without the consent 

of both parties.’” (People v. Segura, supra, 44 Cal.4th at p. 931.) 

 “In exercising their discretion to approve 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, imposition of appropriate punishment, and 

protection of victims of crimes. [Citation.] For that reason, a trial court’s approval of a 

proposed plea bargain must represent an informed decision in furtherance of the interests 

of society [citation]; as recognized by both the Legislature and the judiciary, the trial 
6

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 purpose of the statutory requirements governing 

dismissal of counts under section 1385 was 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 recently 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], stating: “The reality is that plea bargains have become so central 

to the administration of the criminal justice system that defense counsel have 

responsibilities in the plea bargain process, responsibilities 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 insufficient simply to point to the guarantee of a fair trial as a 

backstop that inoculates any errors in the pretrial process. ‘To a large extent . . . horse 

trading [between prosecutor and defense counsel] 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 today’s criminal justice system, 

therefore, the negotiation of a plea bargain, rather 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 bargaining is not to criticize it. The potential to 

conserve valuable prosecutorial resources and for defendants to admit 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. __ [132 S.Ct. at p. 1407].) 
7

receive more favorable terms at sentencing means that a plea agreement can benefit both 

parties.” (Id. at p. __ [132 S.Ct. at p. 1407].)

5

 

II. 

DETAILED CHRONOLOGY OF HEARINGS ADDRESSING THE PROSECUTION’S 

AND DEFENDANT’S NEGOTIATED DISPOSITION AGREEMENT. 

A. 

Pretrial Hearings on Defendant’s Negotiated Disposition Agreement 

 During the hearing on November 29, 2011, the date set for trial, the court 

addressed the prosecution’s offers for negotiated disposition agreements that had been 

extended to Fuentez and defendant. Fuentez 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 defendant whether he wished to accept the 

prosecution’s offer. Defendant stated he decided 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 assault with a deadly weapon in violation of section 245, 

subdivision (a)(1) and be sentenced 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, quoting 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 appropriate, 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 individuals 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 enhancements. (A copy of defendant’s Tahl form is included in 

the clerk’s transcript at pages 175 through 182.) 

 That afternoon, the trial court acknowledged on the record that both 

defendant and Fuentez 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. Each stated his understanding of the rights 

he would be giving up by pleading guilty in accordance with his respective negotiated 

disposition agreement. 

 The trial court then asked Fuentez how he wished to plead to count 2, 

assault by force likely to produce great bodily injury. Fuentez responded, “[g]uilty, Your 

Honor.” Fuentez’s counsel joined in Fuentez’s waiver. The court stated it found “a 

knowing, intelligent, voluntary waiver of Mr. Fuentez’s constitutional rights” and found a 

factual basis for the plea. Following off-the-record discussions and a brief discussion of 

Fuentez’s possible sentence—without an explanation on the record—the trial court 

abruptly concluded the hearing for the day, saying, “[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 jurors, 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 probation if you were to pay off the court-ordered 

criminal restitution and that probation 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 opportunity to create “a record as to [the] 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 negotiated disposition offer to defendant remained 

on the table, notwithstanding Fuentez’s decision to go to trial,

7

 that defendant accepted 

the prosecution’s offer, and that the court rejected the negotiated disposition agreement: 

 “[Defendant’s counsel]: It’s my understanding that the People had offered 

my client an opportunity to sever himself from the case and accept 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 case 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 would not hold it against your—your client 

obviously, but that I was not inclined to, on the day of trial, 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 guilty anytime he wants. I’m not saying 

he cannot plead guilty. I’m saying I’m not going to accept a plea bargain on this case. 

 “[Defendant’s counsel]: Correct. But pleading guilty would mean that he 

would have to obviously 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 during this discussion and 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 Attorney 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 negotiated disposition agreement 

as follows: 

 “[Defendant’s counsel]: Your Honor, can I just—yesterday when we had 

our chambers discussion about the proposed disposition that the court rejected, I didn’t 

really get a chance to lay my specific 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 bargain. It’s my understanding that 

the court did not want to accept my client’s disposition with the People without having it 

been a package deal. Just for the 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 enter 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 knowing, intelligent, voluntary waiver of your client at that 

point. Then once the deal further fell apart, I then became very 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. [¶] Whenever 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 expose 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 saw about my client’s voluntariness of entering into the plea 

bargain. He did have questions for me about the issues of time that he’d have to serve, 

that were more to the specifics of the terms and conditions of the plea bargain. But 

obviously, you having seen thousands of cases and spent years on the bench, I assume 

correctly, the court has seen reluctance 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 first 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 Discussion of Defendant’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 execution of that sentence and imposed five 

years’ formal probation because of the “unusual circumstances” of the case. The unusual 

circumstances included that the offenses occurred 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 suffered any prior convictions), he has a strong 

support system, and he did not make excuses for his conduct. The court stated that this 

case was “unusual from the classic bar fight [where] someone gets really badly injured, 

you should be sent to prison.” The court warned defendant, however, that he now had 

two strikes on his record. The terms and conditions of defendant’s formal probation 

included defendant serving 365 days in jail. 

 Defendant’s counsel again raised the issue of the rejected negotiated 

disposition agreement: 

 “[Defendant’s counsel]: . . . [¶] When 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 package case. [¶] Before we actually started 

trial, [the prosecutor] offered me an opportunity to have my client 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 which required 

defendant to plead guilty to count 1—violation of section 245, subdivision (a)(1). As the 

basis for his plea, defendant admitted he committed the assault “with a deadly weapon” 

and defendant initialed the “strike offense” portion of paragraph 12 of the Tahl form. In 
13

who refused to accept that plea bargain on the condition that both parties 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 Third District that has now ruled that would be 

an illegal plea bargain. 

 “[Defendant’s counsel]: Well— 

 “The Court: So—but I note that, sir, because 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 court 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 for 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.” The offense of assault with 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 deadly weapon in violation of section 245, 

subdivision (a)(1) is a serious felony and “[a] prior serious felony conviction also counts 

as a strike”].) It thus appears defendant’s counsel’s statement at the sentencing hearing 

that the prosecution’s offer involved 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 April 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 was 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 client 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 think your client was voluntarily taking this deal. He was 

showing signs of hesitancy. That’s what the court 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[,] voluntary waivers. That was the court’s reasoning before we 

started trial, and I laid the rest of my objections 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 court briefly discussed whether defendant 

was being excessively punished, defendant’s counsel and the court engaged in this final 

discussion of the negotiated disposition agreement: 

 “[Defendant’s counsel]: I guess my objection is I do feel that there was an 

abuse of discretion in not allowing my client to accept the plea bargain, that the 

suspended sentence and a year in county jail, the court essentially forced my client to go 
15

to trial. He picked up two strikes. He would have had no strikes and he is serving the 

same amount of time. [¶] This case could have been resolved 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 signs of hesitancy.’ [¶] In all my practice[] as a criminal 

defense attorney, if there are issues of hesitation, generally speaking, the court will 

inquire of counsel or the defendant of what 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 sentence. [¶] I also felt 

that when you asked me about my personal views about the suspended sentence, 

obviously my objections were based 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 his credits. Notice, I talked about that. But I’ve changed 

my mind on that. [¶] Second of all, that the court always has the authority to decline a 

plea bargain especially on the day of trial, and especially in the situation that involves a 

serious and violent felony like this. [¶] So to somehow suggest 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 factual 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 the charged offenses that the defendant was 

facing. [¶] Now, back to my question. 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. 

THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S REJECTION OF THE 

WRITTEN NEGOTIATED DISPOSITION AGREEMENT AGREED TO BY THE 

PROSECUTION AND DEFENDANT. 

 The record does not support the trial court’s rejection of defendant’s written 

negotiated disposition agreement. When defendant and Fuentez had each agreed to the 

terms of their respective written negotiated disposition agreements as a “package deal,” 

the trial court conducted a thorough 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 negotiated disposition agreement as set forth on 

his Tahl form was unfair or contrary 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 court also acknowledged to defendant’s counsel that it had 

done so because there was no longer 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 negotiated disposition agreement after Fuentez 
17

elected to go to trial, and the prosecution chose to keep its offer to defendant open. We 

have found no legal authority supporting the trial court’s rejection of a negotiated 

disposition agreement on such a ground. 

 The trial court also stated it rejected 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 during the hearing on the written 

negotiated disposition agreement, but does not show that defendant’s assent to the terms 

of the written negotiated disposition agreement was anything other than voluntary, 

intelligent, and knowing. Although 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 question 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 disposition agreement the afternoon before, which 

actually was the date set for trial. Furthermore, the record shows the court had also been 

willing to accept the written negotiated disposition agreement as to defendant on the date 

set for trial only if Fuentez had also accepted the agreement that had been offered to him. 

At the first hearing on the agreement, the court told Fuentez, 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 Attorney General argues the trial court would 

have had to reject the proffered negotiated disposition agreement because it was illegal 

under section 1192.7, subdivision (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 [“Our 
18

refusal to create a presumption of judicial approval of plea bargains applies to plea 

bargains subject to the proscriptions of section 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 with defendant’s written 

negotiated disposition agreement. We note that the court and counsel made a good 

record of the proceedings, sufficient for appellate review. 

IV. 

UNDER THE CIRCUMSTANCES OF THIS CASE, THE APPROPRIATE REMEDY FOR THE 

TRIAL COURT’S ERROR IN FAILING TO ACCEPT DEFENDANT’S WRITTEN 

NEGOTIATED DISPOSITION AGREEMENT IS SPECIFIC ENFORCEMENT. 

 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 defendant. Citing, inter alia, People v. Mancheno (1982) 32 

Cal.3d 855, 861, the California Supreme Court stated, “California courts, however, 

generally disfavor the remedy of specific enforcement 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 remedies for violation of a plea bargain are to allow defendant 

to withdraw the plea and go to trial on the original charges, or to specifically enforce the 

plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when 

specifically enforcing the bargain would have limited the judge’s sentencing discretion in 

light of the development of additional information or changed circumstances between 

 10

 The court noted, “[s]pecific enforcement 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. Specific 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 unsuitable under all the circumstances.” 

 The Supreme Court further explained: “‘Specific enforcement of a plea 

bargain agreement is actually a broad term covering 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 the prosecutor to comply with the 

agreement, specific enforcement would consist of an order directing the prosecutor to 

fulfill the bargain. When the breach is a refusal by the court to sentence in accord with 

the agreed upon recommendation, specific enforcement would entail an order directing 

the judge to resentence the defendant in accord with the agreement. The People as well 

as a defendant may seek such specific enforcements. 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 determine the terms of defendant’s written 

negotiated disposition agreement as set forth in the Tahl form were unfair or otherwise 

against the public interest. Therefore, specific enforcement of defendant’s written 

negotiated disposition agreement 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 agreement were offered by the prosecution and accepted by 

defendant. Under these circumstances, the only remedy that would address the error at 

issue in this case is the specific 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 accordance with the terms of defendant’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.