Filed 6/23/15

 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOSEPH SEMIR MUTWAKIL AMIN,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

THE PEOPLE,

 Real Party in Interest.

 G050191

 (Super. Ct. No. 12HM10360)

 O P I N I ON 

Original proceedings; petition for a writ of mandate to challenge an order of 

the Superior Court of Orange County, Brett London, Judge. Petition granted. 

Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender, 

and Scott Van Camp, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy 

District Attorney, for Real Party in Interest.
2

In this writ proceeding, we examine whether the People of the State of 

California, real party in interest, should be allowed to rescind a misdemeanor plea 

agreement under which they agreed not to pursue certain felony charges against petitioner 

Joseph Semir Mutwakil Amin. The People contend the agreement is voidable due to 

mistake of fact and for other reasons, but we disagree and grant petitioner‟s request to 

enforce the deal. 

FACTUAL AND PROCEDURAL BACKGROUND 

On July 17, 2012, petitioner was at an Albertson‟s grocery store in Irvine. 

He snuck up behind a woman in the frozen food isle, reached under her dress with his cell 

phone and started videotaping. When the woman asked petitioner what he was doing, he 

said he was sorry and quickly departed. Although petitioner fled the scene, the store 

manager called the police and provided responding Irvine Police Officer T. Goodbrand 

with a surveillance DVD of the incident. 

Upon watching the DVD, Goodbrand immediately recognized petitioner 

from a prior incident involving a woman who had been groped at a park near petitioner‟s 

residence. Goodbrand went to petitioner‟s residence and asked him about the Albertson‟s 

incident. Petitioner admitted using his cell phone to videotape underneath the victim‟s 

dress. He also admitted doing the same thing to various other women at the store about 

six times in the previous three months. He voluntarily relinquished his cell phone to 

Goodbrand, who booked it into evidence and prepared a report containing the above 

information. 

Goodbrand‟s report was the primary police report in the case, but it was not 

the only report. On July 18 and August 1, Police Officers J. McDonald and A. Guo 

prepared supplemental reports detailing their work on the case. Their reports are not 

germane to the issues before us, but on August 9, Police Officer S. Crawford prepared a

four-page supplemental report that has become important in how this case has played out. 
3

On the first page of his report, Crawford stated he was familiar with 

petitioner and knew he “was listed as a subject of interest in previous investigations that 

pertained to the inappropriate touching of females.” Crawford summarized those 

investigations as follows: 1) In case number 11-09255, a suspect inappropriately touched 

a female and then fled into petitioner‟s residence. However, the suspect could not be 

identified; 2) in case number 11-14086, petitioner was identified as a person of interest in 

the “inappropriate touching of two 12-year-old females,” but the girls were unable to 

identify petitioner from a photo lineup they were shown; and 3) in an unreported incident 

Crawford learned about, petitioner allegedly touched a female inappropriately while she 

was exercising at a community gym. There is no information in Crawford‟s report as to 

whether any of these investigations were active or ongoing at the time he prepared the 

report. 

Crawford also reported that he had reviewed the results of the forensic 

examination that was conducted on petitioner‟s cell phone. The examination not only 

revealed the video of the above-described incident that occurred at Albertson‟s on July 

17, 2012, but several other episodes in which petitioner surreptitiously videotaped 

women and girls at public locations. Crawford observed, “The focus of these videos . . . 

appears to [be] the buttocks area of females, and on at least two occasions, [petitioner] 

was able to place his cell phone under a female‟s skirt/dress.” 

Based on this information, the District Attorney of Orange County charged 

petitioner with two misdemeanor offenses stemming from the Albertson‟s incident. 

Count 1 alleged petitioner secretly videotaped underneath the victim‟s clothing for the 

purpose of sexual gratification, and count 2 alleged petitioner unlawfully prowled in 

Albertson‟s for the purpose of committing that offense. (Pen. Code, § 647, subds. (j)(2), 

(h).) 

Petitioner retained Brian Gurwitz, a former senior deputy district attorney, 

to represent him on the case. On September 11, 2012, Gurwitz personally requested 
4

discovery from deputy district attorney Tina Patel while she was handling misdemeanor 

arraignments in the superior court. At that time, Patel called for petitioner‟s case file and 

read a factual summary of the misdemeanor charges that was prepared by the filing 

deputy, Carolyn Carlisle-Raines. Patel then provided Gurwitz with Officer Goodbrand‟s 

police report, which as described above, actually contained information from several 

different officers. However, Patel did not read the police report at that time.

The following week, at petitioner‟s arraignment, Patel and Gurwitz agreed 

that petitioner would plead guilty to the charges in exchange for three years‟ probation. 

Although the crimes did not require mandatory sex offender registration, petitioner 

agreed to lifetime registration and to stay away from all Albertson‟s stores. He also 

agreed to complete 52 counseling sessions within 2 years of his plea. In return, Patel 

expressly agreed petitioner‟s plea would “resolve[] all incidents referenced in [the] police 

report, charged & uncharged.” These terms and conditions were memorialized in the 

parties‟ plea agreement, and after petitioner waived his right to trial and pleaded guilty, 

the Honorable Brett London sentenced him in accordance with the agreement. 

That wasn‟t the end of the story, however. Not long after petitioner was 

sentenced, Patel received a call from the Irvine police informing her they were now able 

to “make [a] case” against petitioner in case number 11-14086, which involved the two 

12-year-old girls who were allegedly molested. Therefore, the district attorney filed a 

two-count felony complaint against petitioner on October 9, 2012. The complaint alleged 

petitioner committed a forcible lewd act against two girls under the age of 14, in violation 

of Penal Code section 288, subdivision (b)(1). 

A week later, Gurwitz filed a nonstatutory motion to dismiss the complaint. 

Because case number 11-14086 was referenced in the police report in petitioner‟s 

misdemeanor case, Gurwitz argued it was resolved by virtue of petitioner‟s plea in that 

case. In its opposition papers, the prosecution argued the plea was unenforceable and 

subject to rescission because it was based on fraud and mistake of fact. The prosecution 
5

also claimed it would violate public policy to read the plea agreement so as to preclude 

prosecution of the felony child molestation charges. 

On October 22, 2012, Judge Derek G. Johnson conducted an evidentiary 

hearing on the matter. Gurwitz testified that on the day petitioner pled guilty, he and 

Patel talked about the terms of the plea agreement. In light of the counseling and 

registration requirements petitioner was willing to accept, Gurwitz asked Patel if she 

would agree not to prosecute petitioner for any of the “other shit” that was mentioned in 

the police report. When Patel said yes, Gurwitz added the term about the plea resolving 

all incidents that were referenced in the police report. He then showed Patel what he 

wrote, she said it was fine, and that was the end of their discussion. According to 

Gurwitz, at no point did he state or imply to Patel that the other incidents referenced in 

the police report were limited to surreptitious videotaping. Nor did Patel ask him if that 

was the case. 

On cross-examination, the prosecution probed about why Gurwitz did not 

volunteer that information to Patel. (The questioning was designed to test Gurwitz‟s 

credibility regarding the circumstances under with plea was made.) Gurwitz testified he 

did not talk to Patel about the police report because he presumed she was familiar with 

the report and knew it referenced alleged incidents of felony child molestation by 

petitioner. It just never occurred to him that a prosecutor would ever agree not to 

prosecute a defendant for conduct referenced in a police report without reading the report 

beforehand. Therefore, even though he and Patel did not specifically discuss the fact the 

police report referenced felony child molestation, he understood their plea agreement to 

foreclose future prosecution for that offense, as well as all of the other alleged crimes 

referenced in the report. 

 That was not Patel‟s understanding of the agreement. In fact, her testimony 

as to what transpired on the day of petitioner‟s plea differed considerably from Gurwitz‟s 

version of events. Explaining how things played out, Patel testified she had not read the 
6

police report before she and Gurwitz started discussing the terms of the plea agreement. 

And the factual summary prepared by filing deputy Carlisle-Raines did not mention any 

crimes other than the subject misdemeanor charges. So when Gurwitz brought up the 

term about not prosecuting petitioner for all other incidents referenced in the police 

report, she asked Gurwitz what he was talking about. According to Patel, Gurwitz told 

her the incidents involved “similar stuff.” She asked Gurwitz if that meant the same “up

the skirt stuff” involved in the present misdemeanor case, and Gurwitz told her “yes, 

similar stuff.”

Knowing Gurwitz was a former prosecutor, Patel trusted him to a certain 

extent. However, she felt she had a professional responsibility to independently verify 

his representations. Therefore, she decided to look through her case file, which included 

Officer Goodbrand‟s report. Patel testified that, even though her misdemeanor 

arraignment calendar was quite busy that day, and she was the only prosecutor on hand, 

she had “as much time as [she] wanted” to review Goodbrand‟s report “to determine . . . 

what . . . other similar stuff” Gurwitz was talking about. In fact, she admitted she could 

have read the entire report if she wanted to, and she did not have to rely on what Gurwitz 

told her. Patel also admitted she knew Goodbrand‟s police report included supplemental 

reports from other officers and that she understood the term “police report” in the plea 

agreement to include not only Goodbrand‟s report, but all of those supplemental reports 

as well. 

Yet, when Patel reviewed the police report, she did not read it in any great 

detail. Instead, she just “perused” it to see if it was consistent with Gurwitz‟s 

representation or whether it contained information about any other alleged crimes that 

were perhaps more serious in nature. When she got to the part in Crawford‟s report about 
7

the police finding videos of multiple up-skirt incidents on petitioner‟s cell phone, she was 

satisfied with the plea agreement and the particular terms that Gurwitz added.1 

It is undisputed the reference to those particular videos appears in Officer 

Crawford‟s report right after his factual description of the subject felony child 

molestation incident. Although the date and case number of that incident are in bold 

type, Patel testified she simply did not notice Crawford‟s factual description of that 

incident, even though she was reviewing the report for the very purpose of determining 

whether it contained any information of that sort. Consequently, when she signed the 

plea agreement, she thought it only shielded petitioner from future prosecution for 

misdemeanor up-skirt picture taking, not felony child molestation. Had she known the 

police report referred to such felony conduct, she never would have agreed to the plea 

bargain. 

Based on this testimony, Judge Johnson made several findings. First, there 

was no fraud or duress on Gurwitz‟s part. (In other words, the judge impliedly rejected 

Patel‟s testimony that Gurwitz misled her about the contents of the police report.) 

Second, the term “police report” in the plea agreement was unambiguous because the 

parties clearly understood that term to include all four of the police reports that were 

prepared in the case. Third, although Patel was negligent for failing to read the police 

report more carefully, she was not reckless, nor did she operate outside the boundaries of 

good faith and fair dealing. And fourth, it would be unconscionable to construe the plea 

bargain to preclude the prosecution of the felony child molestation charges. The latter 

two findings were key to the court‟s ultimate ruling that the plea agreement was subject 

to rescission due to mistake of fact. The court simply did not believe the People should 

 

1 Patel initially testified she did not read any part of Crawford‟s report during the plea negotiation 

process. However, she eventually admitted she did read parts of the report in order to verify Gurwitz‟s 

representations. The admission came after defense counsel pointed out to Patel that Crawford‟s report is the only 

one that mentions the fact petitioner had multiple up-skirt videos on his phone. 
8

have to bear the risk for the misunderstanding that resulted from Patel‟s negligent 

behavior. It thus denied petitioner‟s motion to dismiss the complaint. 

Following the preliminary hearing, petitioner renewed his request to 

dismiss in the trial court before David A. Hoffer. Judge Hoffer agreed with Judge 

Johnson that the plea agreement was voidable due to mistake of fact. Therefore, he too 

denied petitioner‟s motion to dismiss the felony charges.

Petitioner then sought writ relief in this court and we directed Judge 

London, the original sentencing judge, to hold a hearing on whether petitioner‟s 

misdemeanor plea agreement should be rescinded. At the hearing, the prosecution 

accused Gurwitz of fraud and trying to “pull[] a fast one” on Patel. Judge London did not 

reach that issue, but he did find Patel signed the plea agreement based on a mistake of 

fact and it would be unconscionable to enforce the agreement as written. He therefore 

granted the People‟s request to rescind the agreement. After the appellate department of 

the superior court refused to disturb that ruling, petitioner filed the instant petition for a 

writ of mandate. 

DISCUSSION

Mistake of Fact

The main issue before us is whether petitioner‟s plea agreement is 

rescindable due to mistake of fact. Because Patel entered into the agreement knowing 

full well that she had limited knowledge of what was written in the police report, we do 

not believe the mistake of fact doctrine applies in this case. 

Plea bargaining is an essential component of our criminal justice system. 

(Santobello v. New York (1971) 404 U.S. 257, 261.) It is based on the notion of fairness 

and the understanding the parties will honor all the terms they agreed to. (Ibid.) Indeed, 

“[o]ur Supreme Court has repeatedly recognized that „“[w]hen a guilty plea . . . is entered 

in exchange for specified benefits . . . both parties . . . must abide by the terms of the 
9

agreement.”‟ [Citations.]” (People v. Collins (1996) 45 Cal.App.4th 849, 862; accord,

Santobello v. New York, supra, 404 U.S. at p. 262.) 

As representatives of the government, it is particularly important for 

prosecutors to live up to any and all promises that persuade a defendant to give up his 

constitutional right to trial and plead guilty to a criminal offense. (See People v. 

Mancheno (1982) 32 Cal.3d 855, 860 [emphasizing due process and the integrity of the 

plea bargaining system require the state to “keep its word when it offers inducements in 

exchange for a plea of guilty”].) Courts expect prosecutors to honor their plea promises, 

even though prosecutors are often overworked and sometimes make innocent mistakes in 

the course of the plea bargaining process: A “heavy workload may well explain [such 

mistakes], but it does not excuse them.” (Santobello v. New York, supra, 404 U.S. at p. 

260 [prosecutor‟s innocent mistake insufficient basis to justify government‟s breach of 

plea agreement].) 

Given the stakes involved in plea bargaining, some courts do not even 

allow prosecutors to raise mistake of fact as a defense to nonperformance of a plea term. 

(See, e.g., United States v. Partida-Parra (9th Cir. 1988) 859 F.2d 629, 633-634.) 

Although contract principles generally apply to plea bargains (ibid.), and mistake of fact 

is a traditional contract defense, there are two reasons why the rules governing contracts 

may require tempering in the context of a plea agreement: “First, the defendant‟s 

underlying „contract‟ right is constitutionally based and therefore reflects concerns that 

differ fundamentally from and run wider than those of commercial contract law. 

[Citation.]” (United States v. Harvey (4th Cir. 1986) 791 F.2d 294, 300.) And second, 

plea bargains implicate the “„honor of the government, public confidence in the fair 

administration of justice, and the effective administration of justice . . . .‟ [Citation.]” 

(Ibid.) 

In light of these considerations, the Ninth Circuit Court of Appeals has 

declined to extend the contract law analogy to invalidate a plea agreement based on 
10

mistake of fact. (United States v. Partida-Parra, supra, 859 F.2d at p. 634.) Indeed, the 

Ninth Circuit has long held that a prosecutor‟s “subsequent discovery that [his or her] 

decision to enter into [a particular] plea agreement was based on mistake of fact [does] 

not nullify the agreement or excuse the government from compliance with its terms. 

[Citation.]” (United States v. Fagan (9th Cir. 1993) 996 F.2d 1009, 1013; see also United 

States v. Hammond (9th Cir. 2014) 742 F.3d 880, 883; United States v. Barron (9th Cir. 

1999) 172 F.3d 1153, 1158-1159.) Although we are not bound by lower federal court 

decisions (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), the People have not 

provided us with any legally cognizable reason to depart from this approach. 

Instead, the People simply assume that standard contract principles apply in 

determining whether petitioner‟s plea agreement should be enforced in this case. In 

arguing in favor of this approach, the People rightly note that rescission is available as a 

remedy under California law if a mistake of fact material to a contract has been shown. 

(Civ. Code, §§ 1577, 1689, subd. (b)(1).) However, even assuming the mistake-of-fact 

doctrine applies in the context of a criminal plea bargain, we do not believe the doctrine 

applies to the particular situation presented in this case. 

The contours of the mistake-of-fact doctrine were examined in Donovan v. 

RRL Corporation (2001) 26 Cal.4th 261 (Donovan). In that case, the California Supreme 

Court determined that a defendant in a contract dispute who is claiming unilateral 

mistake of fact “must establish the following facts to obtain rescission of the contract: 

(1) the defendant made a mistake regarding a basic assumption upon which the defendant 

made the contract; (2) the mistake has a material effect upon the agreed exchange of 

performances that is adverse to the defendant; (3) the defendant does not bear the risk of 

the mistake; and (4) the effect of the mistake is such that enforcement of the contract 

would be unconscionable.” (Id. at p. 282.)

The parties readily agree the first two requirements for rescission are met. 

Indeed, it is clear Patel agreed to the plea bargain upon the mistaken assumption the 
11

police report only referenced misdemeanor up-skirt picture taking, and this mistake 

would have a material adverse effect on the People‟s performance because it would 

preclude them from prosecuting petitioner for the felony child molestation referenced in 

the report. 

There is, however, no consensus on the third prong of the Donovan test, 

which requires us to ascertain whether Patel bore the risk of her mistake regarding what 

type of information was contained in the police report. Per Donovan, section 154 of the 

Restatement Second of Contracts governs this issue. (Donovan, supra, 26 Cal.4th at p. 

283.) Under that section, “„A party bears the risk of a mistake when [¶] (a) the risk is 

allocated to him by agreement of the parties, or (b) [¶] he is aware, at the time the 

contract is made, that he has only limited knowledge with respect to the facts to which 

the mistake relates but treats his limited knowledge as sufficient, or [¶] (c) the risk is 

allocated to him by the court on the ground that it is reasonable in the circumstances to do 

so.‟” (Ibid., quoting Rest.2d Contracts, § 154 (hereinafter Section 154).)

Because the risk of Patel‟s mistake about what the police report contained 

was not allocated to her by the parties‟ agreement or the court, only the second criteria is 

at issue in this case.2 Speaking to the second criteria, the comment to Section 154 

explains: “Even though the mistaken party did not agree to bear the risk, he may have 

been aware when he made the contract that his knowledge with respect to the facts to 

which the mistake relates was limited. If he was not only so aware that his knowledge 

was limited but undertook to perform in the face of that awareness, he bears the risk of 

the mistake. It is sometimes said in such a situation that, in a sense, there was not 

mistake but „conscious ignorance.‟” 

Section 154 recognizes that risk allocation is an important aspect of all 

contracts: “Every time parties enter a contract, they act with incomplete information. 

 

 

2 In comparison, the result in Donovan turned on the applicability of the third criteria, making that 

case of limited utility to us as far as the risk factor is concerned. (Donovan, supra, 26 Cal.4th at p. 283.) 
12

They make judgments about the desirability of acquiring (and waiting for) additional 

information, and of creating specific contractual provisions to handle particular 

eventualities. Where they have been explicitly concerned about an issue, but decide to 

press forward without further inquiry or explicit provision, it is reasonable to suppose that 

they intend the contract to dispose of the risk in question, i.e., to bar any reopening at the 

behest of the party who, it turns out, would have done better without the contract.” 

(Harbor Ins. Co. v. Stokes (D.C.Cir. 1995) 45 F.3d 499, 502.) 

Consequently, rescission is not available if the purported mistake “„relate[s] 

to one of the uncertainties of which the parties were conscious and which it was the 

purpose of the compromise to resolve and put at rest.‟ [Citations.]” (Harbor Ins. Co. v. 

Stokes, supra, 45 F.3d at p. 502; accord, Stermer v. Board of Dental Examiners (2002) 95 

Cal.App.4th 128, 134 [“the kind of mistake which renders a contract voidable does not 

include „mistakes as to matters which the contracting parties had in mind as possibilities 

and as to the existence of which they took the risk‟”].) Rather, rescission is warranted 

only when “the subject of uncertainty has not been a concern of the parties, i.e., where the 

post-contract discovery comes out of left field . . . . [Citation.]” (Harbor Ins. Co. v. 

Stokes, supra, 45 F.3d at p. 502.) 

Here, both parties knew the police report referenced various alleged 

incidents of criminal conduct by petitioner. Patel‟s mistake related only to the particular 

type of conduct that was referenced in the report. To find that out, Patel looked over the 

police report before agreeing to the plea bargain. She was not only looking for references 

to other up-the-skirt incidents, she wanted to see if there were any references to “any 

other sex crimes” that might be impacted by the plea agreement, such as felony child 

molestation. Despite this, Patel only perused the report, she did not read it word for 

word. And after so doing, she expressed her satisfaction with the terms of the agreement. 

She was willing to go through with the agreement even though she knew she only had 

limited knowledge of the contents of the report. Given that Patel contemplated the report 
13

might contain references to felony sex crimes when she entered into the agreement, this 

prospect cannot be said to have “come out of left field” after the agreement was formed. 

Nevertheless, as the People point out, the judges below were not convinced 

Patel was acting in conscious ignorance of her mistake for purposes of Section 154. 

Speaking to that issue, Judge Hoffer opined that while Patel “had limited knowledge of 

other up-the-skirt incidents” in the police report, she “was not aware that she had limited 

knowledge of felony sex offenses. She didn‟t think there were any, and she was not 

aware of that fact. If she had, she never would have entered into this agreement. It is 

ludicrous to think that a misdemeanor deputy district attorney in a busy arraignment court 

would be bargaining away felony sex offenses . . . against kids[.]” 

However, the issue is not whether Patel intended to bargain away the felony 

offenses referenced in the police report. Instead, we must decide whether the prosecution 

should have to bear the risk of the mistake that resulted from her failure to read the report 

more carefully. This turns on whether she was aware she had limited knowledge of the 

facts to which the mistake related but decided to go through with the plea agreement 

anyway. She did. She knew there were other offenses involved. She perused the report 

because she wanted to know what they were. She failed to read it closely enough to learn 

they were potential felonies, but she had to know how limited her knowledge of those 

cases was. The choice was to decline the deal until she had a chance to fully review 

those reports or act in conscious ignorance to get an agreement that involved registration 

as a sex offender. She chose the latter – not unreasonable – course. 

In finding otherwise, the trial judge made much of the fact Patel acted in 

good faith and her mistake resulted from mere negligence. However, while this 

consideration is relevant to whether the People were eligible to seek rescission in the first 

place (see Donovan, supra, 26 Cal.4th at pp. 283-284 [a defendant‟s failure to act in good 

faith and in accordance with the standards of fair dealing automatically precludes a 

mistake-of-fact defense]), it has no bearing on Patel‟s state of mind vis-à-vis the facts on 
14

which her mistake was based, which is the key issue in this case. Because Patel was 

willing to go along with the plea bargain dispute knowing she had only limited 

knowledge of those facts, the law requires her to bear the risk of her mistake. 

While only petitioner can be satisfied with this result, case law fully 

supports it. Although the issue of mistake of fact arises most often in civil cases, the 

above principles have been applied in criminal cases, as well. Absent evidence of fraud, 

an issue we discuss below, the prevailing view is that “a prosecutor may not rescind his 

[or her] end of [a plea] bargain due to unilateral mistake on his [or her] part.” (Herman, 

Plea Bargaining (1997) § 10.05, p. 194.) While there is a dearth of cases in California on 

this issue, our examination of cases from other jurisdictions reveals that, when it comes to 

prosecutors‟ factual mistakes, it doesn‟t matter what the mistake is about or what the 

consequences of the mistake may be. It can be a mistake about the nature of the 

defendant‟s crimes that results in the prosecution being unable to charge the defendant 

with a serious sex offense (e.g., People v. Martinez (Mich.App. 2014) 861 N.W.2d 905), 

or it can be a mistake about the nature of the victim‟s injuries that results in the 

prosecution being unable to charge the defendant with murder (e.g., State v. Thomas (N.J. 

1972) 294 A.2d 57). So long as the mistake concerns a fact the prosecutor had the ability 

to ascertain before entering into the plea bargain, the prosecutor‟s purported ignorance of 

or mistake about that fact will not suffice to void the agreement. (Ibid.; see also United 

States v. Floyd (3d Cir. 2005) 428 F.3d 513 [prosecutor‟s mistake about the defendant‟s 

potential sentence insufficient basis to invalidate plea bargain]; United States v. Atkinson

(7th Cir. 1992) 979 F.2d 1219 [same]; State v. King (N.C.App. 2012) 721 S.E.2d 327 

[prosecutor‟s mistake about the status of certain forfeited funds insufficient basis to 

invalidate plea bargain]; State v. Palmer (W.Va. 1999) 524 S.E.2d 661 [prosecutor‟s 

mistake about the extent of the defendant‟s criminal behavior insufficient basis to 

invalidate plea bargain]; Ex parte Johnson (Ala. 1995) 669 So.2d 205 [prosecutor‟s 

mistake about the legal consequences of the defendant‟s conduct insufficient basis to 
15

invalidate plea bargain]; Epperson v. State (Ind.App. 1988) 530 N.E.2d 743, 746 

[prosecutor‟s mistake about a witness‟s willingness to cooperate insufficient basis to 

invalidate plea bargain]; Perkins v. Third District Court of Appeals (Tex.Crim.App. 

1987) 738 S.W.2d 276 [prosecutor‟s mistake about the extent of the defendant‟s 

involvement in the alleged offense insufficient basis to invalidate plea bargain]; Ex parte 

Cassady (Ala. 1986) 486 So.2d 453 [prosecutor‟s mistake about the number of charges 

pending against the defendant insufficient basis to invalidate plea bargain].) 

As part of the plea agreement in our case, Patel knew she was giving up the 

state‟s right to prosecute petitioner for the alleged crimes referenced in the police report. 

And even though she was in the midst of a busy courtroom calendar when she made the 

agreement, she admitted she could have taken as much time as she needed to read the 

police report and ascertain what those offenses were. These facts present an even weaker

case for rescission than the facts presented in the above-cited cases, because unlike the 

prosecutors in those cases, Patel had all of the information pertinent to the plea available 

when she accepted it. So her failure to consider the plea agreement more carefully is not 

grounds for excusing compliance with its stated terms. (See generally Stewart v. Preston 

Pipeline, Inc. (2005) 134 Cal.App.4th 1565, 1589 [in rejecting mistake-of-fact defense, 

court reiterates long-established rule that one who agrees to a contract is generally 

presumed to know its contents and cannot escape its terms simply by contending he or 

she did not read them].) 

The People argue Patel should be forgiven for failing to read the police 

report more carefully because Gurwitz lied to her about the type of conduct that was 

reflected in the report. (See generally United States v. Partida-Parra, supra, 859 F.2d at 

p. 634, fn. 6 [noting courts have the inherent “power to undo a plea agreement in a case 

where the defendant has obtained the agreement through fraud or misrepresentation”].) 

However, Judge Johnson, the trier of fact at the evidentiary hearing, rejected the notion 

Gurwitz misled Patel about the police report. Although Patel testified Gurwitz assured 
16

her the report only referenced incidents of surreptitious up-skirt picture taking, Gurwitz 

testified he made no such representation, and Judge Johnson ultimately sided with 

Gurwitz on this issue. Although Judge Johnson did not make any express credibility 

determinations, he explicitly rejected the People‟s claim Gurwitz acted in a deceitful 

manner during the plea process. Finding no evidence to support that claim, Judge 

Johnson specifically ruled out fraud or duress as a basis for invalidating the agreement. 

This can only mean that Judge Johnson impliedly rejected Patel‟s testimony Gurwitz 

misled her into believing the police report only referenced conduct that was similar to the 

current misdemeanor charges. As an appellate court, we are in no position to secondguess Judge Johnson‟s determination in that regard. (See generally People v. Collins, 

supra, 45 Cal.App.4th at p. 862, fn. 8 [whether fraud has been employed so as to 

undermine the validity of a plea agreement is a question of fact for the trial court].)3 

But the People‟s attempt to blame Gurwitz for Patel‟s failings is 

unpersuasive for other reasons. Even if Gurwitz did tell Patel the police report only 

referenced misdemeanor up-skirt picture taking, it is clear Patel did not take that 

representation at face value. She knew she had an obligation to independently review the 

police report to determine whether that was the case, and that‟s exactly what she did. 

Since she was reviewing the report to find out what type of criminal conduct it referred 

to, she obviously had the opportunity to verify whether the information Gurwitz allegedly 

told her was true or not. While it may not have been particularly convenient for Patel to 

take the time to read the entire police report in a busy courtroom setting, she could have 

requested to trail the case to the following day to give her sufficient time to do so. There 

is no indication time was of the essence in negotiating petitioner‟s misdemeanor plea, and 

no indication Gurwitz‟s representations affected her research. 

 

3 Judge Hoffer and Judge London understood this principle, as well. Although the People urged 

them to revisit Judge Johnson‟s factual determinations and find the plea bargain unenforceable due to fraud and 

misrepresentation, they declined to do so and instead based their rulings on other grounds. 
17

The fact is, Patel knew before accepting the plea agreement that she had not 

read the police report in its entirety, and thus she knew she only had limited knowledge 

about the type of offenses mentioned in the report. Nevertheless, she went ahead and 

agreed to resolve all incidents referenced in the report. Under these circumstances, it 

would not be accurate to characterize Patel‟s failure to realize the police report referenced 

felony child molestation as a mistake of fact. Instead, her decision to go ahead with the

plea bargain having only perused the report shows she was consciously ignorant of the 

facts to which her alleged mistake related. Therefore, she bore the risk of that mistake. 

Because of that, we need not consider whether enforcement of the plea 

agreement would be unconscionable, which is the fourth requirement under Donovan. 

Given that the People failed to satisfy the third requirement regarding the allocation of 

risk, they are not entitled to rescind the plea agreement under the mistake of fact doctrine. 

(See Donovan, supra, 26 Cal.4th at p. 282 [a necessary perquisite for obtaining rescission 

of a contract based on unilateral mistake of fact is that the party seeking rescission did not 

bear the risk of the mistake].)

Alternative Arguments for Voiding the Plea Agreement

Nevertheless, the People contend the plea agreement is unenforceable 

because 1) Patel did not consent to the provision that precludes them from prosecuting 

petitioner for the felony child molestation referenced in the police report, 2) the provision 

was procured through fraud and misrepresentation, 3) the provision is ambiguous, and 4) 

the provision violates public policy. None of these theories is persuasive. 

The People‟s lack-of-consent and fraud theories are based on the 

assumption Gurwitz misled Patel about the contents of the police. If that were true, we 

would not hesitate to find the plea agreement unenforceable. (See People v. Collins, 

supra, 45 Cal.App.4th at p. 862, fn. 8.) But as explained above, Judge Johnson flatly 

rejected the notion Gurwitz acted fraudulently in procuring the plea agreement. That 
18

finding, which is amply supported by Gurwitz‟s testimony, precludes us from 

invalidating the contract based on lack of consent or fraud.

The People also accuse Gurwitz of misrepresentation, based on his failure 

to volunteer the information that petitioner had been a suspect in a child molestation

incident. But the victims in that case had been unable to make an identification. And it is 

hard to fault Gurwitz for failing to divulge that information, since it was clearly set forth 

in the police report and Patel took it upon herself to read the report. As one court has 

aptly noted, “[T]he function of defense counsel is to represent his client to the best of his 

ability. While the zeal displayed in the course of this representation must not transcend 

bounds imposed by law or by those ethical standards and professional proprieties which 

govern the conduct of all members of the bar at all times, yet it forms no part of the duties 

of defense counsel to alert the State to imminent pitfalls or warn of possible missteps.” 

(State v. Thomas, supra, 294 A.2d at pp. 60-61 [prosecutor‟s mistake of fact insufficient 

basis to void plea agreement].) Given the circumstances respecting the plea agreement in 

this case, as found by the trier of fact, there is no basis for impugning Gurwitz‟s conduct 

or rescinding the agreement based on anything he did or did not do. 

The People also attack the plea agreement on the basis the term “police 

report” is ambiguous. They claim it would defy the parties‟ expectations and common

sense to interpret the term to include all the police reports included within Officer 

Goodbrand‟s report. Yet the records shows all four of the police reports that were 

generated in this case related to the underlying misdemeanor charges that were 

investigated by Goodbrand. His report, labeled “Consolidated Occurrence Report,” 

contains the basic factual information underlying the charges. And the other three 

reports, including Officer Crawford‟s report, clearly reference – and were designed to 

build on – Goodbrand‟s report. That is why they are labeled “supplemental” reports and 

that is why they were included in the packet of information that both attorneys had in this 

case. Patel not only had all of the reports in her possession, she actually read some of 
19

Crawford‟s report because she believed the term “police report” referenced in the plea 

agreement included his report. Given Patel‟s subjective understanding of that term, 

which Gurwitz shared, the People‟s attempt to impose a more restrictive meaning on the 

term at this late date is unpersuasive. (See generally United States v. Clark (9th Cir. 

2000) 218 F.3d 1092, 1095 [if the terms of a plea agreement are not clear on their face, 

we look to the facts of the case to determine what the parties understood them to mean].) 

Invoking the rights of the children who were allegedly molested by 

petitioner in his felony case, the People argue it would violate public policy if we were to 

interpret petitioner‟s misdemeanor plea agreement to prevent the People from prosecuting 

that case. In so arguing, the People point out that both individual crime victims and the 

California citizenry as a whole have the right to expect that criminal activity will be 

punished to the fullest extent of the law. (Cal. Const., art. I, § 28, subd. (a).) But our 

state also has a compelling interest in ensuring that the prosecutors who represent it in 

court will honor the promises they make in negotiating plea agreements. This is so

despite the fact negotiated pleas sometimes have negative unintended consequences for 

the prosecution. (See People v. Martinez, supra, 861 N.W.2d at p. 912 [generally “„even 

unwise plea bargains are binding on the prosecutor‟”].) 

“Were courts free to reexamine the wisdom of plea bargains with the 

benefit of hindsight, the agreements themselves would lack finality and the benefits that 

encourage the government and defendants to enter into pleas might prove illusory[.]” 

(United States v. Ritsema (7th Cir. 1996) 89 F.3d 392, 401.) Indeed, no plea bargain 

would ever truly be secure if trial courts were allowed to rescind them after they have 

been accepted and executed. (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, 

1467, disapproved on other grounds in In re Greg F. (2012) 55 Cal.4th 393, 415.) “Only 

if it is generally believed that performance on the part of the [s]tate will not disappoint a 

defendant‟s reasonable expectations will plea bargaining . . . remain a truly effective 

device in criminal administration.” (State v. Thomas, supra, 294 A.2d at p. 61.) 
20

Moreover, “to allow the state to revoke plea agreements through negligence 

on the part of the district attorney‟s office might well encourage such negligence. 

Requiring the district attorney to know the pertinent facts in a given case before entering 

a plea bargain will prevent such negligence and will ensure fairness to both the [s]tate 

and the defendant.” (Ex parte Johnson, supra, 669 So.2d at p. 207.) In this regard, we 

must remember plea bargaining implicates more than just the liberty of the defendant; at 

stake is the very honor of the government, the integrity of the judicial process, and the 

public‟s confidence in the fair administration of justice. (People v. Walker (1991) 54 

Cal.3d 1013, 1026; People v. Mancheno, supra, 32 Cal.3d at p. 866; People v. Vargas

(2001) 91 Cal.App.4th 506, 534.) 

 These considerations underscore why courts often feel compelled to hold

prosecutors to their plea agreement promises. Doing so in this case may seem harsh, 

given that Patel simply made an innocent, good-faith mistake in the midst of a busy 

courtroom setting. But if the shoe were on the other foot, and petitioner himself had 

made a mistake about what the police report contained, we would not hesitate to enforce 

the plea agreement in that situation either. The truth is, “defendants are rarely released 

from their agreements, despite the fact that the plea bargain has turned out not to be such 

a bargain after all. [Citation.]” (United States v. Ritsema, supra, 89 F.3d at p. 401; see, 

e.g., Machado v. Carey (E.D.Cal. 2006) 2006 WL 3762046 [defendant‟s subjective 

misunderstanding of potential prison term insufficient to justify rescission of plea 

agreement based on mistake of fact].) There is no reason in logic or the law to afford 

prosecutors preferential treatment when it comes to determining the enforceability of plea 

agreements that are allegedly based on mistake of fact. 

In arguing for rescission of the plea agreement in this case, the People also 

claim the sentencing court failed to make the necessary findings to ensure petitioner is 

subject to the sex offender registration requirements set forth in Penal Code section 290 

et seq. However, the People did not raise this claim at the time petitioner entered his
21

misdemeanor plea, nor did they try to attack the plea on that basis before filing the 

subject felony charges against petitioner. The alleged oversight is therefore not grounds 

for overturning petitioner‟s plea bargain at this stage of the proceedings. (See Ellsworth 

v. Superior Court (1985) 170 Cal.App.3d 967, 974.) 

 In Ellsworth, this court recited an adage that is apt here as well: “„If the 

People had their pockets picked in [this] criminal case, it was because they neglected to 

button down the flaps.‟ [Citation.]” (Ellsworth v. Superior Court, supra, 170 Cal.App.3d 

at p. 974.) Not only were the People remiss for failing to raise any deficiencies in the 

plea below, they were neglectful on a more fundamental level for failing to heed the “old 

saying” that “„[b]efore a prosecutor disposes of his [or her] case, he [or she] should know 

as much about the case as is possible so that he [or she] will be informed about the 

case[.]‟” (Perkins v. Third District Court of Appeals, supra, 738 S.W.2d at p. 277.) 

These miscues have resulted in the consumption of considerable judicial resources and 

left us with a vexing dilemma that pits the right of the state to carry out its fundamental 

duty to prosecute alleged criminal activity against the right of criminal defendants to 

expect fundamental fairness in plea proceedings. 

As much as it pains us to reach a conclusion that results in the dismissal of 

felony child molestation charges against petitioner, we feel the People have left us no 

choice in the matter. In order to preserve the fairness and integrity of the plea bargaining 

process, the process by which the vast majority of criminal cases are adjudicated in this 

day and age (see Lafler v. Cooper (2012) __ U.S. __ [132 S.Ct. 1376, 1381] [recognizing 

the criminal justice system “is for the most part a system of pleas, not a system of 

trials”]), we are compelled to hold the People to the promises they made as part of 

petitioner‟s plea bargain in his misdemeanor case. Because the People agreed to refrain 

from prosecuting petitioner for all incidents referenced in the police report in that case, 

and because that police report clearly and specifically refers to the conduct underlying the 

felony charges petitioner is currently facing, those charges cannot stand. 
22

DISPOSITION

The petition for a writ of mandate is granted and the trial court is ordered to 

vacate its order granting the People‟s motion to rescind the plea agreement in case 

number 12HM10360 and to reinstate petitioner‟s guilty plea to the misdemeanors charges 

alleged in that case. For the reasons explained above, reinstatement of petitioner‟s guilty 

plea in that case precludes the prosecution from pursuing the felony charges alleged 

against him in case number 12HF2926.

BEDSWORTH, J.

I CONCUR:

O‟LEARY, P. J.
1

Moore, J., Dissenting.

I respectfully dissent. I actually agree with most of what the 

majority says, but I draw different conclusions from the facts.

This is what happened. In a busy misdemeanor arraignment court, 

the prosecutor and defense lawyer agreed to the disposition of a case where 

defendant was using his cell phone to look up women‟s skirts. The two lawyers 

agreed defendant would plead guilty in exchange for three years‟ probation. 

While memorializing the agreement in a writing, the defense lawyer added an 

additional term, that defendant‟s guilty plea would “resolve[] all incidents 

referenced in [the] police report, charged & uncharged.” 

To a great extent, what happened next is a he said /she said situation. 

He is the defense lawyer and she is the prosecutor. She said she asked him what 

the additional term was about, and he told her the other incidents involved “similar 

stuff.” The prosecutor then perused the police report, which was actually four 

reports, found “similar stuff” throughout the four reports and agreed to the 

additional term. Defendant pled guilty and the judge sentenced him according to 

the agreement. 

What the prosecutor did not read in her perusal of the police reports 

was a police officer‟s statement that defendant was a person of interest in the 

inappropriate touching of two 12-year-old girls. Shortly after defendant was 

sentenced, the prosecutor was contacted by police and told the police department 

was ready to file against defendant for molesting the two girls. A felony 

complaint alleging defendant committed two counts of forcible child molestation 

was filed. (Pen. Code, § 288, subd. (b)(1).) 

Defendant made a motion to have the felony complaint dismissed. 

In denying the motion to dismiss, the judge made a finding there was no fraud on 
2

the defense lawyer‟s part when he answered the prosecutor‟s questions about the 

new term he added to the plea agreement in the underlying case. A reviewing 

court must defer to factual findings. (People v. Cissna (2010) 182 Cal.App.4th 

1105, 1118.) Assuming there was no fraud, both looking up women‟s skirts and 

felony child molestation are both sexual crimes, and might be described by some 

as “similar stuff.” 

Why the prosecutor did not read the police reports more carefully is 

not at issue here. Nor is the defense lawyer‟s reason for doing what he did, 

although his actions may be understandable. He was between the rock and the 

hard spot to a certain extent. If he brought the notation in the fourth police report 

about the 12-year-old girls to the attention of the prosecutor, he might 

inadvertently cause his client to be further prosecuted. Yet at the same time, he 

wanted to wrap up everything, if possible. 

What is at issue here is that, unlike the typical private contract, 

which is insulated from judicial interference because it‟s nobody‟s business to 

what terms private parties agree (see Brisbane Lodging, L.P. v. Webcor Builders, 

Inc. (2013) 216 Cal.App.4th 1249, 1263 [contract involving “sophisticated giveand-take” over terms of contract should not be interfered with by the courts], this 

particular contract is somebody‟s business. It‟s the People‟s business. Even 

though it doesn‟t matter why both counsel acted as they did, as a result of their 

actions, charges are being dismissed against a sexual deviant who may be in the 

process of escalating his crimes, having graduated from looking up women‟s skirts 

to forcible child molestation. It is in the public interest to determine whether that 

portion of the plea agreement dealing with foreclosing further prosecution should 

be rescinded under contract principles or whether the plea agreement should be 
3

enforced despite a mistake of fact, and the forcible child molestation charges 

should be dismissed.

There are four requirements to rescission. The party seeking 

rescission must demonstrate that “(1) [she] made a mistake regarding a basic 

assumption upon which [she] made the contract; (2) the mistake has a material 

effect upon the agreed exchange of performances that is adverse to [her]; (3) [she]

does not bear the risk of the mistake; and (4) the effect of the mistake . . . would be 

unconscionable.” (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 282.) As the 

majority notes, the parties agree the first two elements are present. (Maj. opn., 

ante, at p. 10.) Unlike the majority, I find the prosecutor does not bear the 

assumption of the risk here.

A party bears the assumption of the risk of her mistake if “„[s]he is 

aware, at the time the contract is made, that [s]he has only limited knowledge with 

respect to the facts to which the mistake relates but treats [her] limited knowledge 

as sufficient . . . .‟” (Donovan v. RRL Corp., supra, 26 Cal.4th at p. 283.) In this 

case, it cannot be said the prosecutor bore the risk of making a bad contract 

because she knew she had limited knowledge. She “knew” no such thing. She 

perused the four police reports and felt assured they contained nothing but “up the 

skirt stuff.” That is what she was looking for, and that is what she found.

Unconscionability in General

The principles of unconscionability involve both a substantive and a 

procedural element, the former focusing or overly harsh or one-sided results and 

the latter on oppression or surprise. (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 

1064, 1071.) The ultimate question of whether or not a contract is unconscionable 
4

is a question of law. (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 

473, 489.)

Substantive Unconscionability

“The substantive element of the unconscionability analysis focuses 

on overly harsh or one-sided results. [Citation.]” (Gatton v. T-Mobile USA, Inc. 

(2007) 152 Cal.App.4th 571, 586.) “No precise definition of substantive 

unconscionability can be proffered. Cases have talked in terms of „overly harsh‟ 

or „one-sided‟ results. [Citations.] One commentator has pointed out, however, 

that „. . . unconscionability turns not only on a “one-sided” result, but also on an 

absence of “justification” for it.‟ [Citation], which is only to say that substantive 

unconscionability must be evaluated as of the time the contract was made. 

[Citation.] The most detailed and specific commentaries observe that a contract is 

largely an allocation of risks between the parties, and therefore that a contractual 

term is substantively suspect if it reallocates the risks of the bargain in an 

objectively unreasonable or unexpected manner. [Citations.]” (A & M Produce 

Co. v. FMC Corp., supra, 135 Cal.App.3d at p. 487.)

A provision in a contract is substantively unconscionable if it 

“„involves contract terms that are so one-sided as to “shock the conscience,” or 

that impose harsh or oppressive terms.‟ [Citation.] The phrases „harsh,‟ 

„oppressive,‟ and „shock the conscience‟ are not synonymous with „unreasonable.‟ 

Basing an unconscionability determination on the reasonableness of a contract 

provision would inject an inappropriate level of judicial subjectivity into the 

analysis. „With a concept as nebulous as “unconscionability” it is important that 

courts not be thrust in the paternalistic role of intervening to change contractual 

terms that the parties have agreed to merely because the court believes the terms 
5

are unreasonable. The terms must shock the conscience.‟ [Citations.]” (Morris v. 

Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1322-1323.) 

As already noted, I must defer to the trial judge‟s determination 

there was no fraud in the inducement here. Nonetheless, even if the defense 

lawyer did not intend to mislead the prosecutor, it is clear to me the prosecutor 

was, indeed, misled into believing the only crimes involved were “up the skirt 

stuff,” as she says she was told or led to believe. She found “up the skirt stuff” 

throughout the police reports, but did not see the references to inappropriate 

touching of two 12-year-old girls. Under the circumstances I find in this record, I 

must conclude the term added by the defense lawyer is harsh, oppressive, onesided in favor of defendant and shocks the conscience. 

Procedural Unconscionability

The procedural element of the unconscionability analysis concerns 

the manner in which the contract was negotiated and the circumstances of the 

parties at the time. It focuses on oppression or surprise. (Walnut Producers of 

California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 646.) Oppression 

may not apply here, but surprise does. Surprise involves the extent to which the 

supposedly agreed-upon terms of the bargain are hidden in the contract by the 

party seeking to enforce the disputed terms. (Gatton v. T-Mobile USA, Inc. (2007) 

152 Cal.App.4th 571, 581.) 

I do not suggest the prosecutor should have been surprised, but 

surprised she was. She had been told to expect nothing in the police report but 

“similar stuff,” so when she saw “similar stuff” throughout, her expectations were 

met. But the added contractual term had ramifications she never suspected. 
6

No doubt the substantive unconconscionability element here is 

greater than the procedural unconscionability element, but the law recognizes a 

sliding scale with regard to substantive and procedural unconscionability. “[T]he 

greater the degree of substantive unconscionability, the less the degree of 

procedural unconscionability . . . is required to annul a contract or clause. 

[Citations.]” (Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 83, fn. omitted.) In 

Carboni, the reviewing court had little trouble finding a 200 percent interest rate 

charged on funds borrowed to pay for medical bills was substantively 

unconscionable, but struggled with whether there was procedural 

unconscionability in light of an argument the borrower had other sources of credit. 

(Id. at pp. 84, 86.) The court concluded: “Finally, we note that even if the 

procedural aspect of unconscionability in this case was slight, the substantive 

unconscionability was severe. A compelling showing of substantive 

unconscionability may overcome a weaker showing of procedural 

unconscionability. [Citation.]” (Id. at p. 86.)

Conclusion

This is not a situation where the district attorney is trying to back out 

of a deal it made because circumstances have changed. Neither is this a situation 

where the case was assigned to a deputy district attorney for trial, in which case 

we could easily presume the trial lawyer was fully aware of the contents of the file 

before making an offer. Rather, this case involves a perfect storm. The plea 

agreement was made at the misdemeanor arraignment stage, the safety of children 

is at stake, and the People‟s lawyer did not read all of the police reports, missing 

the significance of the term added by the defense lawyer. Thus, at the time the 

contract was entered, the possible effect that a felonious child molester, who 
7

would ordinarily face a long prison term, would avoid prosecution, was not even 

considered. Under the circumstances in this record, I find that added term to be 

both substantively and procedurally unconscionable. The unconscionable term 

can easily be severed from the agreement.

“As noted, Civil Code section 1670.5, subdivision (a) provides that 

„[i]f the court as a matter of law finds the contract or any clause of the contract to 

have been unconscionable at the time it was made the court may refuse to enforce 

the contract, or it may enforce the remainder of the contract without the 

unconscionable clause, or it may so limit the application of any unconscionable 

clause as to avoid any unconscionable result.‟” (Armendariz v. Foundation Health 

Psychcare Services, Inc. (2000) 24 Cal.4th 83, 121-122.) (Italics added.)

I think the trial court‟s ruling was correct for the most part. The 

added term to the plea agreement here shocks the conscience, and I do not think 

we should enforce it. The prosecution of defendant for forcible child molestation 

should proceed without interference by this court. 

I disagree, however, with the remedy applied by the trial court. The 

court withdrew defendant‟s guilty plea in the misdemeanor matter. Whether the 

guilty plea should be withdrawn or whether the plea should remain, with the 

unconscionable provision severed, should be defendant‟s option. After all, the 

prosecutor offered the defendant the no time disposition prior to defense counsel‟s

including the unconscionable provision. 

MOORE, J.