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Filed 3/20/23 P. v. Morris CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS G. MORRIS,

Defendant and Appellant.

 A164890

 (Solano County

 Super. Ct. No. FCR348614)

In exchange for a sentence later determined to be unauthorized, 

defendant Marcus Morris pled no contest to a felony count of child abuse with 

an accompanying enhancement for causing great bodily injury and an 

admission of a prior strike (“the original plea agreement”). The trial court 

initially approved the agreement, but it granted the prosecution’s motion to 

withdraw from the agreement after the court realized that the deal included 

an unauthorized sentence. The parties eventually reached a new plea 

agreement under which Morris again pled no contest to the same charges and

was sentenced to 20 years in prison.

On appeal, Morris challenges the trial court’s order granting the 

prosecution’s motion to withdraw from the original plea agreement. He 

contends that the order violated his due process rights under both California 

law and the Fourteenth Amendment of the United States Constitution and 
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that the trial court should be directed to reinstate the original plea and 

sentence him in accordance with it. We affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

In October 2019, Morris inflicted head trauma on his two-month-old

son, leaving the child permanently and severely disabled. He was charged 

with a felony count of assault on a child causing the child to become comatose 

(“child assault count”).

1

The original plea agreement was reached in October 2021. Under it, 

Morris pled no contest to a new felony count of child abuse (“child abuse 

count”). He also admitted to an enhancement for personally inflicting great 

bodily injury on a child under five years old (“GBI enhancement”) and a prior 

strike.

2 In exchange, the child assault count was dismissed and Morris was 

promised a 20-year sentence, calculated as the midterm of four years, 

doubled, for the child abuse count, and a consecutive upper term of six years, 

doubled, for the GBI enhancement. Morris’s trial counsel requested 

documentation of the strike so she could be personally assured of the prior 

conviction. 

The following month, the trial court determined that the original plea 

agreement was legally unauthorized because the prior strike, while allowing 

doubling of the main term, did not allow doubling of the enhancement term.

The prosecution proposed a new agreement under which Morris would plead

1 This count was brought under Penal Code section 273ab, 

subdivision (b). All further statutory references are to the Penal Code.

2 The child abuse count was brought under section 273a, 

subdivision (a), the GBI enhancement was alleged under section 12022.7, 

subdivision (d), and the prior strike was alleged under section 667.5, 

subdivision (a). 
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no contest to two counts of child abuse and admit the GBI enhancement and 

the prior strike in exchange for a sentence of 19 years and eight months.3 

Morris rejected the offer, proposing instead to admit the same charges set 

forth in the original plea agreement in exchange for a sentence of 14 years.4

The prosecution rejected the 14-year offer, asserting that the agreed-upon 

sentence was 20 years. 

In response, the trial court suggested an 18-year sentence based on the 

charges encompassed by the original plea agreement.

5 The prosecution

rejected the suggestion. The court then postponed the matter for further 

discussion, after which the prosecution filed a motion to withdraw from the

original plea agreement, which Morris opposed. The court granted the 

prosecution’s motion, withdrew its approval of the original plea agreement, 

and permitted Morris to withdraw his original plea. 

The parties subsequently reached a new plea agreement under which 

Morris pled no contest to one count of child abuse and admitted a lesser GBI 

enhancement, the prior strike, and a newly added prior serious felony 

enhancement. In exchange, the child assault count was dismissed. The trial 

court approved the new agreement, and Morris was sentenced to 20 years in 

prison, composed of the upper term of six years, doubled, for the child abuse 

3 This proposed sentence was composed of the upper term of six years 

for one child abuse count, doubled, and consecutive terms of one year and 

four months for the other child abuse count, doubled, and the midterm of five 

years for the GBI enhancement.

4 The 14-year proposed sentence was composed of the midterm of four 

years for the child abuse count, doubled, and a consecutive upper term of six 

years for the GBI enhancement. 

5 The 18-year proposed sentence included the upper term of six years 

for the child abuse count, doubled, and a consecutive upper term of six years 

for the GBI enhancement. 
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count, and consecutive terms of five years for the prior serious felony

enhancement and three years for the lesser GBI enhancement.6 Morris

appealed after obtaining a certificate of probable cause, allowing him to 

challenge the withdrawal of the original plea agreement. 

II.

DISCUSSION

A. The Trial Court Properly Exercised Its Authority in Withdrawing

Approval of the Original Plea Agreement.

Morris first claims that his rights under California law were violated 

because the trial court allowed the prosecution to withdraw from the original 

plea agreement.

7 He argues that the agreement’s terms did not require a 20-

year sentence, the agreement was binding as soon as he pled no contest, and 

the agreement could and should be enforced for a lesser sentence. We are not 

persuaded.

Plea bargains are typically governed by a form of contract law. 

(People v. Kim (2011) 193 Cal.App.4th 1355, 1360 (Kim).) Similar to private 

contracts, plea bargains bind the state and the defendant, and each party is

6 Morris admitted this GBI enhancement under section 12022.7, 

subdivision (a), the prior serious felony enhancement under section 667, 

subdivision (a), and the prior strike under section 667, subdivision (e). 

7 As part of his claim, Morris contends that his “California due process 

rights” were violated. The guarantees of due process under the constitutions 

of the United States and California are substantially similar. (Today’s Fresh

Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 

212.) While “procedural due process under the California Constitution is 

‘much more inclusive’ and protects a broader range of interests than under 

the federal Constitution” (Ryan v. California Interscholastic Federation-San

Diego Section (2001) 94 Cal.App.4th 1048, 1069), Morris fails to explain why 

this distinction matters, and he has accordingly forfeited any such argument. 

Because we conclude below that Morris’s claim under the federal due process 

clause fails, we likewise conclude that any claim under the state due process 

clause fails. 
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entitled to the benefit of the bargain. (People v. Daugherty (1981) 

123 Cal.App.3d 314, 321.) Judicial approval is required, however, before any 

plea bargain goes into effect. (In re Alvernaz (1992) 2 Cal.4th 924, 941.) A 

trial court is not bound by the bargain and is permitted to reject it if the 

parties can be restored to their original positions. (Kim, at p. 1360.) When 

deciding whether to approve a proposed plea bargain, the court must make 

an informed decision that relies on various factors, including whether the 

agreement is in society’s best interests. (People v. Stringham (1988) 

206 Cal.App.3d 184, 194 (Stringham).) 

Section 1192.5 establishes that after a trial court has indicated its 

initial approval of a plea agreement, “it may, at the time set for the hearing 

on the . . . pronouncement of judgment, withdraw its approval in . . . light of 

further consideration of the matter.” (§ 1192.5, subd. (c).) In criminal cases,

the pronouncement of judgment occurs “ ‘when the trial court orally 

pronounces sentence.’ ” (People v. Mendoza (2009) 171 Cal.App.4th 1142, 

1150.) Thus, under section 1192.5, a court has broad discretion to withdraw 

its original approval of a negotiated plea prior to sentencing. (People v. Silva 

(2016) 247 Cal.App.4th 578, 588.) The court’s discretion to do so is recognized 

as “near-plenary.” (Stringham, supra, 206 Cal.App.3d at p. 195.) When a 

court concludes that a plea bargain is unacceptable, the remedy is for the 

court to reject the bargain, not to directly or indirectly violate the bargain by 

imposing different terms. (People v. Ames (1989) 213 Cal.App.3d 1214, 1217

(Ames).) We review the decision to withdraw approval of a plea bargain for 

an abuse of discretion, reversing only if the decision is outside the bounds of 

reason. (People v. Mora-Duran (2020) 45 Cal.App.5th 589, 596.)

Here, the trial court initially accepted the original plea agreement

because it and the parties incorrectly assumed that the terms for both the
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child abuse count and the GBI enhancement could be doubled based on 

Morris’s prior strike. But as disclosed in the probation report, the prior 

strike permitted doubling of only the term for the child abuse count, not the 

term for the GBI enhancement. (See § 667.5, subd. (a).) Thus, the 20-year 

sentence contemplated under the original plea agreement was not legally 

authorized.

The trial court did not abuse its discretion in withdrawing its initial 

approval of the agreement upon realizing that the contemplated sentence was 

unauthorized. In People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 

567 (Sanchez), a case relied upon by the court, the prosecutor and the 

defendant negotiated an illegal sentence requiring a penalty that was 

unavailable for the crime to which the defendant pled. (Id. at p. 571.) The 

Third District Court of Appeal held that where there has been a mistake of 

law between the parties, a court should withdraw its approval of the 

agreement, not enforce the plea for a different term, and the prosecution is 

entitled to rescind the agreement. (Id. at p. 577.) The trial court here acted 

consistently with Sanchez when it withdrew its approval of the original plea 

agreement and allowed the prosecution to withdraw from it, placing the

parties in the same position they were in prior to entering the agreement.

Morris argues that Sanchez is distinguishable because the defendant 

there acknowledged that he agreed to a specific sentence (25 years). 

(Sanchez, supra, 223 Cal.App.4th at p. 570.) Morris claims that his 

agreement to the 20-year sentence was contingent on documentation 

verifying the prior strike. He further argues that the terms of the original 

plea agreement did not require a 20-year sentence, only the lawful maximum 

sentence of 10 to 18 years. We are not persuaded. Although Morris’s trial 

counsel requested documentation verifying the existence of the prior 
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conviction, there was no suggestion that the sentence would be less than 

20 years if evidence of the conviction was not produced. The agreement was 

that the sentence would be 20 years unless the prior conviction could not be 

verified, and if it was not verified the parties would go back to negotiating, 

not default to a lesser sentence. Since the mistake of law was discovered 

prior to sentencing, the trial court correctly remedied the situation by

withdrawing its approval of the original plea agreement and allowing the 

prosecution to rescind the agreement. (See Sanchez, supra, 223 Cal.App.4th 

at p. 573.) After the prosecution rescinded the plea agreement, the parties 

were put in their original positions and continued to negotiate.

Morris also argues that the trial court erred by withdrawing its 

approval of the original plea agreement because the agreement was binding 

as soon as he pled no contest. He is mistaken. Although the court initially 

approved the agreement, sentencing had not yet occurred and, as we have 

discussed, the court was therefore free to withdraw its approval. (See Kim, 

supra, 193 Cal.App.4th at p. 1360.)

Finally, Morris argues that the original plea agreement could and 

should be enforced for a lesser sentence. Again, we are not convinced. As 

previously discussed, when the parties have entered a plea bargain for an 

illegal sentence, the appropriate remedy is to reject the agreement. (See 

Sanchez, supra, 223 Cal.App.4th at p. 573.) A court should not directly or 

indirectly violate a plea bargain when it disapproves of the agreement. (See 

Ames, supra, 213 Cal.App.3d at p. 1217.) To have enforced the bargain for a 

sentence less than 20 years would have required the court to alter the 

agreement’s terms. 
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In short, Morris’s first claim fails because the trial court acted well 

within its power when it withdrew its initial approval of the original plea 

agreement upon realizing that the sentence was unauthorized.

B. Morris’s Fourteenth Amendment Due Process Rights Were Not 

Violated.

Morris next claims that the prosecutor’s rescission of the original plea 

agreement violated his Fourteenth Amendment due process rights to enforce 

the terms of the original plea agreement. We disagree. 

The Fourteenth Amendment guarantees that no state shall make or 

enforce any law that deprives any person of life, liberty, or property without 

due process of the law. (U.S. Const., 14th Amend., § 1.) “ ‘A protected liberty 

entitlement can . . . be created by state law . . . [, and w]hen [such] a liberty

interest has been created, the due process clause acts to insure that the statecreated right is not arbitrarily abrogated.’ ” (Ritschel v. City of Fountain

Valley (2006) 137 Cal.App.4th 107, 122.) Here, California law creates no such 

liberty entitlement in initial plea agreements since section 1192.5 explicitly 

confers discretion on trial courts to withdraw approval of them prior to 

sentencing.

Morris cites several cases holding that a defendant has the federal due 

process right to enforce the terms of a plea agreement in the event of a 

prosecutorial breach. He primarily relies on Santobello v. New York (1971) 

404 U.S. 257. But Santobello and the other cases he relies upon are

inapposite. In Santobello, a plea deal was reached with a promise by the 

prosecutor not to recommend a sentence. (Id. at p. 259.) At the sentencing 

hearing, however, a different prosecutor, in violation of the first prosecutor’s 

promise, recommended a maximum one-year sentence, a sentence that the 

court then imposed. (Id. at pp. 259–260.) By recommending the maximum 

sentence, the prosecutor placed the defendant in an arguably worse position 
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than the defendant would have been in if the condition not to recommend a 

sentence had been honored. The Supreme Court vacated the judgment and 

remanded the case in furtherance of “the interests of justice and appropriate

recognition of the duties of the prosecution in relation to promises made in 

the negotiation of pleas.” (Id. at pp. 262–263.)

Here, the trial court did not impose upon Morris a sentence to which he 

had not agreed. Instead, the court simply allowed the prosecution to 

withdraw from the original plea agreement, placing Morris in the same 

position he was in before the agreement was negotiated. (See People v. Silva, 

supra, 247 Cal.App.4th at p. 588.) The court took this action before 

sentencing—when it retained the authority to rescind its approval—and 

Morris therefore had no set liberty interest. Likewise, none of the other cases 

he cites deal with facts like those present here, where the parties bargained 

for an unauthorized sentence and the plea agreement had not yet been 

approved at sentencing.

Morris’s due process claim fails.

III.

DISPOSITION

The judgment is affirmed. 
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Swope, J.*

*Judge of the Superior Court of the County of San Mateo, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.

People v. Morris A164890