People v. Trejo (199 Cal. App. 4th 646, 2011)

Opinion

MOSK, J.

INTRODUCTION

Following a jury trial, defendant and appellant Joe Trejo (defendant) was convicted of two counts of attempted second degree robbery and five counts of second degree robbery. On appeal, he contends that the unsuccessful and sometimes contentious plea bargain negotiations that took place prior to trial resulted in a denial of his due process right to a fair trial. Defendant also contends that the trial court committed prejudicial error when it denied his motion for a mistrial. The Attorney General disagrees with both of defendant’s contentions and asserts that additional fees and assessments should have been imposed by the trial court.

In the published portion of this opinion, we hold that the plea bargain negotiations did not deprive defendant of a fair trial. In the unpublished portion of the opinion, we hold that the trial court did not abuse its discretion in denying the motion for mistrial and that the trial court is required to impose additional fees and assessments.

FACTUAL BACKGROUND

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney in an amended information charged defendant in counts 5 and 6 with attempted second degree robbery in violation of Penal Code sections 664 and 211 and in counts 7 through 11 with second degree robbery. The district attorney alleged that as to counts 5 through 11, defendant personally used a handgun within the meaning of section 12022.53, subdivision (b) and that in the commission and attempted commission of each of those offenses a principal was armed with a handgun within the meaning of section 12022, subdivision (a)(1). The district attorney further alleged that defendant had been convicted of two prior felonies within the meaning of section 1203. Defendant pleaded not guilty and denied the allegations.

Following trial, a jury found defendant guilty as charged and found the firearm allegations true. The trial court deified probation and sentenced defendant to a total prison term of 40 years four months.

DISCUSSION

A. Plea Negotiations

1. Background

During jury selection, the exchanges quoted below took place between and among the trial court, defendant, and the attorneys for the parties concerning ongoing plea negotiations.

“The Court: Back in session outside the jury’s presence. H] Counsel and the defendant are here. There were some settlement negotiations. [Prosecutor Fuhrman] was here, wanted an offer from [defendant]. He said 16 or 17, and [Prosecutor Fuhrman] declined that so we will proceed with jury selection. [][]... [f] The Defendant: I’m not saying that. You guys are playing with me with them deals. That’s not even a deal. [][] The Court: I used to be a federal prosecutor, and we used to do armed robberies. The standard offer for an armed robber, one bank, one bank, one robbery is 25 years. That’s when I was a prosecutor. 25 years was the minimum sentence we ever asked for a bank robber committing one robbery, [f] You’re alleged to have committed a lot of robberies here. So that’s why when [Prosecutor Fuhrman] said 28 years, I thought, boy, that’s a light offer from [Prosecutor Fuhrman]. I thought he was gonna be asking for 35 years or 40. His offer of 28, in my mind, is very lenient. [][] [Defense Counsel]: For the record, it’s now 20. [][] The Court: 20 and you’re turning it down? [f] The Defendant: That’s half my life. [][] The Court: [Defendant], he offered you 20, and you’re turning it down? [][] [Prosecutor O’Crowley]: At 85 percent, which is 17 years, [f] [Defense Counsel]: Which is 17 years. [|] The Court: No one is playing with you if they are offering you 20. [f] The Defendant: That’s right, but I’m not getting no strike—well, I’m gonna have strikes, but they are not stricken, right? H] [Defense Counsel]: He is concerned about the fact that he would end up with strikes. There is no alternative to that based on the agreement that was proffered. It carries a risk, carries a substantial risk. [][] The Defendant: I know they are strikes, but they are stricken strikes, you know. If I go to prison, any little thing, I get beat up and something happens, I’m gonna get another strike just on anything. That’s like saying, here, take 20 years with two or three strikes, you gonna do life by the time you do a year in there, [f] The Court: That may happen, [f] The Defendant: I’m trying to get out there and work and have kids. [][] The Court: We are having this conversation, but it doesn’t do any good. I’m not going to offer you 20. I wouldn’t offer you 20. [Prosecutor Fuhrman] offered you 20, and you turned it down so there is really nothing to talk about because I don’t think you should get 20. [][] [Prosecutor O’Crowley]: If I may add something, your Honor, [f] The Court: Go ahead, [f] [Prosecutor O’Crowley]: There is no way you’re gonna come out of this case, in my opinion, with less than two strikes. You’re going to go to prison with at least two strikes. The situation you’re worried about, being in prison having two strikes behind you, I don’t think there is any way to avoid that. The only thing we are talking about here is how much time you get going in. [f] [Defense Counsel]: I think it’s a phenomenal offer, given the exposure of 48 years. We’re talking about, I think, seven counts, plus the car burglary, plus the probation violation issue. [(Defendant confers with his counsel off the record.)] [][] The Defendant: If I could think about this offer? [f] [Defense Counsel]: Could we continue picking a jury and, hopefully, we will- reach a resolution before tomorrow morning? [j[] The Court: We need to continue picking a jury. I have jurors outside. [][] [Defense Counsel]: I understand. H] The Court: I have no control over the offer. I don’t know if it’s still on the table or will be, but we need to finish jury selection. So I’ll ask the bailiffs to do what we need to do, and let’s proceed with jury selection.” (Italics added.)

The next day, defendant’s counsel informed the trial court that Prosecutor Fuhrman was denying that a 20-year offer had been made, which information triggered the following colloquy: “The Court: We’re back in session outside the jury’s presence on [defendant’s] case. [|] [Defendant] is in the lockup, not before the court. [Defense counsel] is here, and the calendar deputy [Prosecutor Fuhrman], is here. [j[] Your request, [defense counsel], was what? [U [Defense Counsel]: Your Honor, yesterday afternoon I appeared before this court and picked a jury. Towards the end of the day, before your Honor and your staff, [Prosecutor Fuhrman] and I and [Prosecutor O’Crowley] discussed the settlement of the case. I believe a record was made. I think the court reporter was here, and at some point in time, I, on the record put the 20-year offer from [Prosecutor Fuhrman]. The court looked at my client and said to my client, essentially, ‘you’re crazy not to accept it.’ [f] The Court: I didn’t use the word ‘crazy’ but something along those lines. [][] [Defense Counsel]: Something like that, it would be wiser to accept it, and that he was facing approximately 48 years if you combined both cases. My client asked if he could think about it until this morning, and that’s where it ended. [][] I walked in a few minutes ago, and [Prosecutor Fuhrman] said he never made any offer—that offer of 20. He said his offer was 28. I would rather—I’ve spoken to your clerk who was present during the entire proceedings. She advised me that the offer was 20 years, [f] The Court: Isn’t the main issue what’s on the table now? [][] [Defense Counsel]: No. The main issue was[,] was the offer made, number two, whether or not there was a time limit, and, number three, whether or not it was withdrawn. There was no time limit on it. [f] The Court: I didn’t hear a time limit, [f] [Defense Counsel]: My client wanted to talk to his mom. I asked him before he left whether he could talk to his mother, you know, over the phone last night, and he said he believed he could. That was the end of it. [][] The Court: Okay. [Prosecutor Fuhrman] is the 20-year offer still on the table so we can bring [defendant] down? [f] [Prosecutor Fuhrman]: There was never a 20-year offer given by the people in this case. As I recall, I came in yesterday afternoon at the request of counsel. He began speaking with his client, and his client didn’t want anything. He asked me to address his client at that time, and the client indicated he didn’t want an offer, [f] The Court: How did we get to 20 years? Because I remember discussing 20 years, and the issue was, in [defendant’s] mind, that he had to plead to three counts as part of what was understood to be your offer, at least three, [f] [Defense Counsel]: Correct. [][] The Court: We even got to the details of how many counts and a number of 20. [Prosecutor O’Crowley], in fact, even stepped into the discussion and said, essentially, ‘[Defendant], you’re going to be convicted of at least two strikes so the issue is not the strikes. The issue is how many years you’re going to go behind the strikes.’ [][] So I clearly understood the offer you were making was 20 years. In fact, at one point, [defendant] was talking about something or something was going on, and the bailiff stopped you from leaving the courtroom. It was something unrelated to the plea discussions, and you said something to the effect, ‘oh, I thought he had decided to accept the offer.’ Accept what offer? [f] [Prosecutor Fuhrman]: No, that was not at all what I said as I was leaving the courtroom. As I remember, I was stopped about something, I can’t remember the particular detail, but I was sarcastically indicating, in essence, was he wasting my time again with another attempt at an offer? [