Mr. Silva assaulted a worker from the power company and, while out on bail for the assault, threatened a couple of Walmart workers who had caught him shoplifting. The end result was a complaint charging eight felonies, a prior strike, an "on-bail" enhancement, and multiple "nickel priors" (five year enhancements).
Silva and the state worked out a plea bargain. Silva would plead guilty to one felony count of assault-with-a-deadly weapon (ADW), one felony count of making a criminal threat, one felony count of willfully failing to appear in court, and one misdemeanor count of petty theft. He would also admit the prior strike and the "on bail" enhancement. In return the state agreed it would dismiss the balance of the complaint. Rather than agree to a specific sentence, Silva and the state agreed that Silva would receive no more than six years and eight months in prison. The opinion describes this as a "lid" agreement.
At the time of sentencing, the court sentenced Silva to four years on the ADW, a consecutive 16 months sentence for the criminal threat, and an additional 16 months sentence on the failure to appear, for a total of six years and eight months. However, there was still the misdemeanor petty theft, for which the court determined it was required to impose a consecutive sentence. The court gave Silva 30 days consecutive on the misdemeanor. This meant the total sentence ended up being six years and nine months. Silva appealed.
The Third District (unhappy with the state, in my opinion) reverses and remands.
The first problem the panel finds is that the trial court did not comply with Penal Code section 1192.5. This section requires that at the time a defendant pleads the court must explain to him that a plea agreement is a compromise between the state and a defendant, the court is not a party to the agreement and thus is not bound by it. If the court takes a plea pursuant to a plea bargain and later determines it cannot in good conscience follow the terms, it must inform the aggrieved party that it has the right to rescind the deal and pick up where the case left off.
Here, the court did not explain to Silva when it determined it could not sentence him within the six year eight month "lid" that Silva had the right to withdraw his guilty pleas and resume the case as if those pleas had never been entered.
IMEO, the panel is rightfully miffed at having its time wasted. First, the prosecutor had assured the trial court at the time Silva entered his plea that the six month eight month "lid" was mathematically possible. Second, when the prosecutor later discovered that the misdemeanor count would require a consecutive sentence (meaning the "lid" was not mathematically possible), he or she refused to just dismiss the misdemeanor, which would have solved the problem.
In the end, the panel remands the matter where [1] the state can just dismiss the misdemeanor and the court can impose a six year eight month sentence, [2] if the state refuses to dismiss the misdemeanor, the court can exercise its discretion to impose a sentence under the six year eight month "lid", or [3] if both the state and the court hold their lines, Silva can be given the option of withdrawing his pleas and the case will resume as if the plea bargain never existed.
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