Where trial court failed to advise appellant he could withdraw his plea if the court intended to impose a sentence greater than agreed (Pen. Code, § 1192.5), remand is required. Silva pleaded guilty to a number of felonies and a misdemeanor, which arose from two separate incidents. He admitted a strike prior. The plea provided for a maximum sentence of six years eight months. Prior to sentencing, the prosecution advised the court that the misdemeanor theft offense had to be sentenced consecutively because it was not committed on the same occasion and did not arise from the same set of operative facts as the two serious felonies that Silva admitted. (See Pen. Code, § 667, subd. (c)(6) and (7); People v. Newsome (1997) 57 Cal.App.4th 902). The trial court imposed the maximum term under the plea for the felonies, then added a consecutive term of 30 days on the misdemeanor. On appeal Silva claimed he was not advised of his right to withdraw the plea if the trial court intended to exceed the plea lid. He sought specific performance of the plea. Held: Reversed and remanded. The trial court did not orally advise Silva of his right to withdraw the plea if the court withdrew its approval of the plea (Pen. Code, § 1192.5). Although paragraph 6.e. of the Judicial Council change of plea form stated he could withdraw the plea if the court withdrew its approval of the plea prior to sentencing based on newly discovered facts, there are additional reasons a trial court might withdraw its approval of a plea. The language on the form does not substitute for the section 1192.5 notice required. The plea agreement provided for specified benefits. Therefore, based on due process principles, the punishment may not significantly exceed that which the parties agreed upon.
Defendant’s right to withdraw his plea was not forfeited when he failed to move to withdraw the plea when the trial court imposed a more severe sentence than agreed. The prosecution asserted that Silva forfeited any claim under section 1192.5 by failing to move to withdraw his plea at sentencing. However, Silva was never advised of his rights under section 1192.5, so should not be held to have waived them.
The remedy for violation of the plea is not specific performance, but remand. Specific performance of a plea may only be ordered where it will implement the reasonable expectations of the parties and will not bind the trial court to a sentence it considers unreasonable under the circumstances. Here, specific performance is inappropriate because the trial court denied Silva’s Romero motion to strike the prior serious felony. On remand, the prosecution may move to amend the information to strike the misdemeanor petty theft with a prior conviction, or the trial court may decide to exercise its discretion to strike the prior serious felony on one or more counts. If either of these events occurs, Silva would not be entitled to withdraw his plea. If not, he must be given that opportunity.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C078233.PDF