Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. BLF002380, BLF002388, BLF002401, BLF002445 James S. Hawkins, Judge.
ORIGINAL PROCEEDINGS; writ of habeas corpus. James S. Hawkins, Judge. Petition denied.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
RICHLI, Acting P.J.
In 2003, defendant Richard Allen Powells negotiated a plea agreement in four separate cases. In 2005, he filed a petition for writ of habeas corpus, case No. E038302 (First Petition), arguing that in Blythe Superior Court case No. BLF002401 (No. 2401) he had received ineffective assistance of counsel due to his counsel’s erroneous advice that he admit two prior serious or violent felony convictions despite the fact that the Texas convictions did not qualify as strikes in California. The People acquiesced that an order to show cause could issue to the lower court so that it could prove the prior strikes. This court granted the First Petition and returned the case to the lower court for a determination on the prior strikes and resentencing.
We have taken judicial notice of our file in the First Petition.
Unbeknownst to this court at the time the First Petition was considered (due to the failure by both parties to so notify this court), No. 2401 was part of the four-case negotiated plea case Nos. BLF002445 (No. 2445), BLF002380 (No. 2380), and BLF002388 (No. 2388). That negotiated plea resulted in dismissal of several sexual offenses, dismissal of No. 2380, and defendant receiving a 100-years-to-life sentence.
Upon remand, the People filed a motion to vacate the judgment and reinstate the complaints in the four aforementioned cases. The trial court refused the People’s request, determining that that this court’s order had given it authority only to resentence defendant in No. 2401. The People did not appeal the denial of the motion to vacate the judgments.
The People filed the instant appeal as to No. 2401 only. The People claim on appeal that they should be entitled to have the plea in all four cases invalidated and that this court should reinstate the four prior complaints.
Defendant then filed a second petition for writ of habeas corpus, case No. E044844 (Second Petition), claiming that (1) he received ineffective assistance of counsel at resentencing because his counsel conceded that there was one qualifying strike, (2) he is subject to unauthorized sentences in Nos. 2388 and 2445, and (3) he is entitled to remand for resentencing in Nos. 2388, 2401, and 2445 as a “no-strike” defendant. He does not seek to withdraw his plea agreement.
We have consolidated the instant appeal, case No. E043345, with the Second Petition. We conclude that the proper resolution in this case is to order that the judgments be vacated, which will return the parties to same positions as prior to the plea agreement, with the caveat that defendant may not be sentenced to more than the agreed-upon sentence of 100 years to life.
I
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying cases are not pertinent to the issues to be resolved on appeal.
A. Four Charged Cases and Plea
In 2003, defendant was charged in this case, No. 2401, with one count of burglary (Pen. Code, § 459) and having suffered two prior serious or violent felony convictions (described as burglary of habitation), suffered in Texas in 1989 and 1993 (Pen. Code, §§ 667, subds. (c), (e)(2); 1170.12, subd. (c)(2)).
In No. 2388, defendant was charged with burglary (Pen. Code, § 459) and misdemeanor graffiti (Pen. Code, § 594, subd. (b)(2)(A)) and was again charged with the two prior strikes suffered in Texas.
In No. 2445, defendant was charged in an amended complaint with two counts of rape by force (Pen. Code, § 261.2, subd. (a)(2)) committed on July 3 and 16, 2002, against two separate victims, with allegations that defendant entered the two victims’ homes with the intent to commit rape (Pen. Code, § 667.61, subd. (d)(4)) and of kidnap for the purpose of committing sexual offenses (Pen. Code, § 667.8, subd. (a)); two counts of robbery (Pen. Code, § 211); two counts of kidnapping (Pen. Code, § 207); two counts of burglary (Pen. Code, § 459); inflicting physical pain and mental suffering on an elder and dependent adult (Pen. Code, § 369(b)(1)); and unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)). The same two 1989 and 1993 Texas priors were charged as strikes.
Finally, in No. 2380, defendant was charged with one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and one count of receiving stolen property (Pen. Code, § 496, subd. (a)), but no strikes were alleged.
Defendant and the People agreed to a plea agreement. Defendant pled guilty to one count of burglary in No. 2401, one count of burglary in No. 2388, and two counts of burglary in No. 2445. He admitted that the two Texas priors constituted strikes. He was sentenced to 100 years to life (25 years to life in Nos. 2401 and 2388, plus 50 years to life in No. 2445). In exchange, the charged sexual offenses and attendant allegations, plus other charges, were dismissed, and No. 2380 was dismissed in its entirety. Defendant admitted that there was a factual basis for the plea. Defendant filed no direct appeal and never sought a certificate of probable cause.
B. First Petition for Writ of Habeas Corpus Attacking Prior
Convictions
On June 17, 2005, defendant, in propria persona, filed the First Petition, alleging that he received ineffective assistance of counsel. He referred to Nos. 2401 and 2388 as the underlying cases. He also stated that he had been sentenced to 100 years to life pursuant to a guilty plea. Defendant alleged that the Texas priors did not qualify as strikes in California because the definitions of “theft” and “habitation” were interpreted differently in California. Defendant claimed that his counsel was ineffective for failing to advise him that the priors did not qualify as strikes prior to him entering his plea. He provided no declaration from counsel as to what counsel advised defendant at the time that he entered into the plea.
This court ordered the People, then represented by the Attorney General’s office, to file an informal response addressing a new theory, the fact that “petitioner’s 1993 burglary was charged under a provision of Texas law that does not require criminal intent contemporaneous with entry.” This court only referenced No. 2401.
The People filed a response that the 1993 prior in fact constituted a strike. They also responded that this court should ignore People v. Rodriguez (2004) 122 Cal.App.4th 121, 131-137 (a case holding that the definition of “habitation” in Texas is different from California’s definition of “residence”) as to the 1989 prior. At no time did the People alert this court to the fact that No. 2401 was part of a four-case disposition, despite the fact that defendant received a 100-years-to-life sentence. Further, the People never disputed that defendant had made a prima facie case for relief on ineffective assistance of counsel grounds despite the fact that defendant did not provide a declaration from trial counsel as to what defendant was advised about the priors at the time of the plea.
This court disagreed with the People’s response that the 1993 prior qualified as a strike but gave the People an opportunity to file a supplemental response; we advised the People that, if the further response was inadequate, we would issue an order to show cause. In response, the People merely asked that, if this court were to issue an order to show cause, it be returnable to the superior court so they could prove the truth of the 1993 prior conviction.
We accepted this as the People’s concession to the claims in the First Petition. We granted the habeas petition, citing only to No. 2401, directing the trial court to conduct resentencing. We ordered that the People be given an opportunity to prove the existence of two strikes, and if they could, the imposed sentence would remain intact. If the People were unable to prove the two strikes, defendant was to be resentenced as a “one strike” defendant. Neither defendant nor the People contested this order.
C. Resentencing in Case No. 2401
As a result of this court’s order, No. 2401 was sent back to the superior court. In the lower court, the People, now represented by the Riverside County District Attorney’s office, immediately filed a motion to vacate the judgment and to reinstate the complaint, citing to all four cases: Nos. 2401, 2380, 2388, and 2445. Defendant’s counsel filed points and authorities to support his position that the trial court could only address resentencing and proving up the strikes in No. 2401, and that it had no jurisdiction to hear the other cases.
At the resentencing in No. 2401, the trial court denied the People’s motion to vacate the judgment. It initially stated that it believed it had the authority to vacate the judgments in the four cases that were conditioned on a plea bargain. However, it was restricted by this court’s order, which only addressed No. 2401. The trial court concluded it could only resentence in No. 2401, despite the fact it was part of a four-case disposition, and that the other cases involved now constituted unauthorized sentences, as they were based on a nonqualifying strike. The trial court faulted the People with failing to advise this court that No. 2401 was part of a four-part disposition.
The trial court then gave defendant an opportunity to withdraw his plea in all of the cases. Defendant refused to withdraw his plea, indicating he had never asked that the plea be withdrawn. The People admitted that the 1993 prior did not qualify as a strike. Defense counsel conceded that defendant was subject to being sentenced with one prior qualifying strike. Defendant was sentenced to the upper term of six years, doubled for the one strike, for a total of 12 years in No. 2401.
The People filed a notice of appeal referencing No. 2401 and requesting transcripts for that case only. Defendant did not file a notice of appeal.
D. Second Petition for Writ of Habeas Corpus
Defendant filed the Second Petition, the petition consolidated with this appeal, referencing Nos. 2401, 2388, and 2445. Defendant claims he received ineffective assistance of counsel at the time of the resentencing in No. 2401 because the 1989 prior did not qualify as a strike, an issue this court did not decide when resolving the First Petition. Defendant also contends that he is serving illegal and unauthorized sentences in Nos. 2388 and 2445. Defendant requests we determine that he has no qualifying strikes and that he be resentenced on the four burglaries in Nos. 2401, 2388, and 2445. The People filed an informal response, arguing among other things that the Second Petition should be denied because this court should reinstate the complaints on direct appeal. Defendant filed a reply.
We denied a motion by defendant to dismiss the appeal. Although we initially denied defendant’s request to consolidate the Second Petition with the appeal, we ultimately determined that consolidation was appropriate and have so ordered.
II
APPROPRIATE REMEDY FOR ALTERED PLEA AGREEMENT
Although both parties seek resentencing on the cases that comprise the negotiated disposition, their requests for relief differ. The People seek on direct appeal to have this court vacate the judgments in the four cases and reinstate the complaints, essentially putting the parties back in the same position they were prior to the plea. Defendant argues both in his respondent’s brief and in the Second Petition that he has not repudiated the plea agreement, that the People cannot withdraw from the bargain because they had a burden to correctly charge defendant, and that he is entitled to be sentenced only on the four burglary charges without any of the prior strikes.
A. The Relief Sought by the People Cannot Be Granted on Appeal
On appeal, the People seek to have this court remand the case to the lower court with orders to vacate the judgments in Nos. 2401, 2380, 2388, and 2445 and to reinstate the complaints. Such relief cannot be granted on appeal as to case Nos. 2380, 2388, and 2445.
When defendant filed the First Petition, he referenced Nos. 2401 and 2388. This court’s orders issued in regard to the First Petition all referred only to No. 2401, and defendant never notified this court that his claims pertained to all four cases, or even to No. 2388. The order granting the First Petition and ordering resentencing should the People be unable to prove the strikes referenced only No. 2401.
Upon remand, the People essentially sought to broaden the scope of the remand by filing a motion to vacate the judgment in all four cases. This was the first time that either party alerted the court to the fact that the sentence in No. 2401 was negotiated as a package deal on four separate cases.
We agree with the trial court’s determination, relying on People v. Dutra (2006) 145 Cal.App.4th 1359, 1366-1368, that this court’s order, directed only at No. 2401, granted the trial court jurisdiction only to consider the prior convictions in that case. Whether or not this court’s order was correct (based on the failure of the parties to notify this court that No. 2401 was part of a four-part disposition), the trial court was only vested with jurisdiction to consider No. 2401. (See People v. Karaman (1992) 4 Cal.4th 335, 344 [a trial court no longer has jurisdiction to resentence “once execution of the sentence has commenced”].) The trial court regained jurisdiction on No. 2401 due to this court’s remand, but it had no jurisdiction over the remaining cases for which sentences were being served consecutively, but separately.
The People properly filed a motion to vacate the judgment on all four cases and could seek a ruling from the trial court. A motion to vacate the judgment can be filed at any time. However, there was no appeal from the denial of the motion to vacate in this case. “Although section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the ‘substantial rights’ of the defendant, the right to appeal is limited by the qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment.” (People v. Totari (2002) 28 Cal.4th 876, 882; see also People v. Thomas (1959) 52 Cal.2d 521, 527 [“appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and . . . would in effect indefinitely extend the time for appeal from the judgment”].)
The People filed a notice of appeal from the “resentencing” in No. 2401. The People certainly can argue, as they have on appeal, that their motion to vacate the judgment in No. 2401 should have been granted. We are unable to find authority, however, for the proposition that this court can consider the motion to vacate the judgments in Nos. 2380, 2388, and 2445, when no direct appeal has been taken from those judgments and, in fact, the trial court lacked jurisdiction to reconsider the cases in the first place.
We believe the People could have filed a notice of appeal from the denial of the motion to vacate the judgment. Although traditionally an appeal cannot be brought from such a motion, the California Supreme Court has invested the appellate court with discretion to entertain such appeals. (People v. Gallardo (2000) 77 Cal.App.4th 971, 981; see also People v. Totari, supra, 28 Cal.4th at p. 886.) However, since the People did not even attempt to file an appeal from the denial of the motion to vacate the judgment, we cannot exercise that discretion.
Furthermore, we have found no case holding that if a plea bargain is reached as to four separate cases, and an appeal or petition for writ of habeas corpus is successful on only one of the cases, the trial court and appellate court are vested with jurisdiction to reconsider all four separate cases. Certainly, had the dismissed counts been part of No. 2401, this court and the trial court could have considered the motion to vacate as to all the dismissed counts. However, the People provide no case that allows this court to reinstate the complaints in all four cases when the appeal addresses only one case. Although a notice of appeal is liberally construed, the notice must identify the particular judgment being appealed. (Cal. Rules of Court, rule 8.304(a)(4).) This court cannot construe a notice of appeal that refers to one case number as applying to three other cases, one of which has been dismissed.
Although in In re Blessing (1982) 129 Cal.App.3d 1026, 1028-1029, the plea involved two separate cases, that case involved a habeas petition.
As such, we only have the ability to review the denial of the motion to vacate the judgment in No. 2401 on direct appeal.
We note that defendant failed to file a notice of appeal from the resentencing in No. 2401. His claim in his respondent’s brief that he was improperly sentenced due to counsel’s belief that he had one qualifying strike conviction therefore cannot be considered on direct appeal.
B. This Court Can Declare the Rights of the Parties and Remand for Reinstatement of the Complaints from the Second Petition.
Defendant seeks relief by claiming in the Second Petition that his sentences in Nos. 2388 and 2445 are unauthorized. He also states that he should be sentenced as a no-strike defendant in Nos. 2388, 2380, and 2445. He requests specific performance of the plea bargain, which would render him only being resentenced on the four burglaries, claiming that the People cannot withdraw from the plea agreement and reinstate the original complaints due to their duty to properly charge him. For obvious reasons, defendant does not seek to withdraw his plea.
As set forth, ante, we believe that we cannot grant the relief requested by the People on direct appeal. Although we may grant relief in No. 2401, that would not remedy the problems that now exist as to the original plea bargain, the sentences on Nos. 2445 and 2388, and the dismissal of No. 2380. However, there is precedent that allows us to treat the Second Petition as an opportunity to declare the rights of the parties and remand with directions to the trial court in order to ensure that the proper resolution is reached as to all of these cases.
In In re Walters (1975) 15 Cal.3d 738, 744, fn. 3, the California Supreme Court found the petition for writ of habeas corpus filed by the defendant as an “acceptable vehicle for a general declaration of the procedural rights of individuals detained for the alleged commission of misdemeanors,” despite the fact that the issue in that case was moot. In the subsequent case of In re Blessing, supra, 129 Cal.App.3d at page 1028, the court relied on Walters and determined that it could declare the rights of the parties. In Blessing, the defendant reached a negotiated disposition with the People, wherein several counts were dismissed. (In re Blessing, supra, 129 Cal.App.3d at pp. 1028-1029.) A law enacted after the plea made a portion of the sentence unlawful. (Id. at p. 1030.) Defendant filed a petition for writ of habeas corpus requesting that four years be deleted from sentence, but he did not seek to withdraw from the plea. (Id. at p. 1028.) The Blessing court disagreed as to simply deleting four years from the agreed-upon sentence. (Id. at p. 1030.) It believed that this unexpected change in the law “drastically and fundamentally altered the character of the negotiated disposition. Thus the People are entitled to withdraw therefrom and have the dismissed counts revived, if they so desire. [Citation.].” (Id. at p. 1031.) Defendant was afforded relief that he could be sentenced no greater than the agreed-upon sentence upon remand. (Ibid.) The Blessing court denied the habeas petition and declared that, upon the People’s motion to withdraw from the negotiated disposition, the judgments would be vacated. (Ibid.)
Here, we believe that defendant’s Second Petition, wherein he seeks to reduce his sentence rather than withdraw from the plea, is an appropriate vehicle for this court to declare the rights of the parties and remand with directions to the trial court to vacate the judgments, as will be set forth, post.
C. The Only Just Resolution in This Case Is to Put the Parties Back in heir Positions Prior to Entering the Plea Bargain with a Sentencing Cap.
It is clear that the original bargain entered into by both the defendant and the People has fundamentally changed since the resentencing in No. 2401.
Both parties are entitled to the benefits of a plea bargain. The People, like the defendant, have reciprocal rights under the bargain. (People v. Enlow (1998) 64 Cal.App.4th 850, 854.) Both parties are entitled to enforce the terms of a plea bargain. (People v. Collins (1978) 21 Cal.3d 208, 214; People v. Cunningham (1996) 49 Cal.App.4th 1044, 1048.) “The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant’s vulnerability to a term of punishment.” (Collins, at p. 215.)
Due to the intervening determination by this court granting the First Petition and the subsequent resentencing by the trial court, defendant is no longer subject to the original sentence contemplated by both parties. This determination has “fundamentally altered the character of the negotiated disposition.” (In re Blessing, supra, 129 Cal.App.3d at p. 1031.)
The usual remedies for violation of a plea bargain are to allow the defendant to withdraw the plea and go to trial on the original charges or to specifically enforce the plea bargain. “Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.” (People v. Mancheno (1982) 32 Cal.3d 855, 861.) Specific performance is not a favored remedy for violation of a plea bargain, nor is it required by the federal Constitution. (People v. Brown (2007) 147 Cal.App.4th 1213, 1224.)
Since defendant has essentially been given an unexpected windfall by the granting of the First Petition and resentencing, he understandably does not want to withdraw his plea. However, the People should be entitled to withdraw from the plea agreement because we cannot conclude any wrongdoing on their part in negotiating the plea.
Initially, defendant claims that he is entitled to specific performance of the plea bargain because our decision in case No. E038302, which he argues is law of the case, establishes that he is serving an unauthorized sentence in Nos. 2388 and 2445 due to ineffective assistance of counsel at the time the plea was entered. Defendant therefore is entitled to be resentenced on those cases similar to the resentencing in No. 2401.
The doctrine of law of the case provides that when a reviewing court, in deciding an appeal, “‘“states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . .”’ . . . [¶] The principal reason for the doctrine is judicial economy.” (People v. Stanley (1995) 10 Cal.4th 764, 786.) The doctrine “prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.” (People v. Whitt (1990) 51 Cal.3d 620, 638.)
“‘The principal ground for making an exception to the doctrine of law of the case is an intervening or contemporaneous change in the law.’” (In re Saldana (1997) 57 Cal.App.4th 620, 625.) Another exception to the law of the case doctrine is that the evidence upon retrial or rehearing is not substantially the same as that upon which the prior appellate ruling was based. (People v. Mattson (1990) 50 Cal.3d 826, 850.)
When defendant filed his First Petition, he failed to make this court aware that No. 2401 was part of a negotiated disposition. The People also failed to so advise this court. We fault both parties with having failed to properly notify this court as to the four-case disposition. As such, this court’s prior determination was based on inaccurate information and does not dictate the same result here. Moreover, the fact that this court’s orders only pertained to No. 2401 does not establish law of the case for Nos. 2380, 2388, and 2445; rather, these cases are more properly reviewed under principles of collateral estoppel.
“Collateral estoppel bars relitigation of an issue decided in a previous proceeding in a different cause of action if ‘(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; and (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding.’ [Citations.]” (People v. Davis (1995) 10 Cal.4th 463, 514-515, fn. 10.) “[C]ollateral estoppel ‘does not apply . . . where there are changed conditions and new facts which did not exist at the time of the prior judgment’ . . . .” (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1291.) Here, as noted above, the facts before this court are entirely different from those presented with the First Petition. Although the same facts were present when the First Petition was decided, both parties failed to notify this court of those facts.
Having rejected that we must follow the prior order in case No. E038302, we conclude, based on the facts now before the court, that defendant has not presented a prima facie case that he received ineffective assistance of counsel at the time that he entered into the plea agreement in the Second Petition. Accordingly, defendant has failed to show that the sentences in Nos. 2388 and 2445 are unauthorized.
To succeed on a claim of ineffective assistance of counsel, a defendant must show (1) counsel’s performance was deficient in that it fell below the standard of a reasonably competent attorney, and (2) prejudice to the defendant resulted because of counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” (Strickland, at p. 693.) To demonstrate prejudice, the defendant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694; accord, People v. Ledesma, at pp. 217-218.)
When defendant entered into the plea agreement, he specifically admitted that the two Texas priors qualified as strikes and that there was a factual basis for the priors. Thus, the People were not called upon to prove the priors. Defendant waited until the time that he filed the First Petition to argue that the priors in No. 2401 did not qualify as strikes in California. He presented his claim on the ground that his counsel was ineffective for failing to advise him at the time of the plea that the priors did not qualify as strikes in California. He filed his own self-serving declaration in support of the First Petition that he had no idea when he entered into the plea that the strikes were not qualifying priors. He did not advise this court that his sentence in No. 2401 was part of a multiple negotiated disposition. He never filed a declaration from counsel with the First Petition as to what occurred at the plea negotiations and what counsel advised defendant. Moreover, the People never attacked the ineffective assistance of counsel claim.
With the Second Petition, defendant again fails to provide a declaration from trial counsel as to what counsel advised defendant at the time of the plea negotiations. This time, however, the People properly point out that in order to show ineffective assistance of counsel, defendant has to have shown what he was advised at the time of the plea through a declaration from trial counsel.
If defendant was advised by trial counsel at the time he agreed to the plea agreement that by admitting the priors as serious or violent felony convictions, whether or not the People could actually provide proof of such convictions, he would receive a better deal, he certainly could make such an agreement. (People v. Flood (2003) 108 Cal.App.4th 504, 508.) “[W]hen the defendant knowingly, intelligently and expressly agrees to certain aspects of a proposed negotiated disposition, i.e., sentencing irregularities, to obtain the overall benefits of a negotiated disposition, he is estopped to complain.” (People v. Velasquez (1999) 69 Cal.App.4th 503, 506.) Accordingly, if defendant did make such a deal, with the knowledge of what he was admitting, he would be estopped from attacking the plea on these grounds. (People v. Ellis (1987) 195 Cal.App.3d 334, 347.) In Ellis, the court held that the defendant was estopped from challenging his admission that his prior federal bank robbery conviction constituted a “serious felony” under California law, even though it did not qualify as such as a matter of law, because his admission was knowingly made as part of an advantageous negotiated disposition. (Id. at pp. 345-347.)
In filing the Second Petition, defendant presumes that the priors do not qualify as strikes and that he had been subjected to an unauthorized sentence. Defendant relies upon our previous order in case No. E038302, which, as set forth, ante, does not foreclose us from reaching a different determination based on different facts now before this court. Based on the record before this court when the First Petition was decided, it was impossible to see what sort of advantageous disposition defendant received by accepting a sentence of 25 years to life in No. 2401 (when that is exactly the sentence he would have received had he been convicted).
Viewed in the context of all four cases, however, defendant made a good deal. Here, the record supports a tactical reason that trial counsel may have had for defendant to enter into the plea bargain. If defendant’s true motivation was to avoid the sexual offenses, then pleading to the strikes was the only way to reach a fair compromise. Even without the strikes, he essentially was facing a similar sentence in No. 2445 alone. (See People v. Otterstein (1987) 189 Cal.App.3d 1548, 1552 [“[t]he punishment to which defendant agreed is well within the maximum that could have been imposed under the charges and enhancements which were dismissed solely in consideration of defendant’s plea. The record supports the inference defendant deliberately persevered in his plea with knowledge of its irregularity in order to secure an imagined appellate advantage”]; Pen. Code, § 667.61, subd. (d)(4) [25-years-to-life sentence]; Pen. Code, § 667.8, subd. (a) [nine-year sentence].)
By failing to provide a declaration from trial counsel as to the reasons that he advised defendant to take the deal in this case, we think the record supports that defendant may have been made aware of the possible proof problems on the priors. As such, he would be estopped from raising that the priors did not qualify as strikes. (People v. Ellis, supra, 195 Cal.App.3d at p. 347.)
Moreover, defendant has never shown prejudice. Prejudice occurs only if the record demonstrates “a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S.at p. 694.) Even if we were to conclude that his counsel misadvised him that the priors were strikes, defendant has not shown that he would have refused the bargain had he been properly advised. That is the showing that he must make. Accordingly, he has not shown prejudice.
We believe that we could appropriately find as to Nos. 2388 and 2445 that defendant is not entitled to relief in the Second Petition. However, if we were to simply deny the petition for writ of habeas corpus, in essence finding defendant failed to show ineffective assistance of counsel on Nos. 2388 and 2445, we would leave an incongruous result. Defendant would be sentenced in this case, No. 2401, to 12 years, and a ruling would stand that he received ineffective assistance of counsel in the determination of the prior conviction based on misinformation. We do not believe that we can change the result in No. 2401 because the People never appealed this court’s order finding that defendant had shown ineffective assistance of counsel. Defendant would therefore remain sentenced to 75 years to life on Nos. 2388 and 2445, and to 12 years in No. 2401. Such a resolution of this case is unacceptable.
We also note that the defendant did not contest this court’s order granting the habeas petition. Defendant now claims that the order did not address the 1989 prior conviction, although raised as an issue, and that the 1989 strike prior does not qualify as a strike prior. Defendant is estopped from raising any irregularities in this court’s order by failing to appeal it; in any event, we believe that the prior order found the 1989 prior qualified as a strike, and since we vacate the judgments, defendant is free to litigate the validity of the priors.
If we were to conclude that defendant was misadvised at the time he entered into the plea agreement that the priors qualified as strikes, we do not believe that the People are entirely responsible for this misadvisement, but rather that this was based on the mutual mistake of the parties in negotiating the plea agreement. The resolution of such mutual mistake would be withdrawal of the plea agreement.
A plea bargain is contractual in nature and subject to general principles of contract law. (People v. Shelton (2006) 37 Cal.4th 759, 767.) When a plea agreement is based on the mutual mistake of all concerned, the proper remedy is to allow for the withdrawal of the agreement. (People v. Coley (1968) 257 Cal.App.2d 787, 804, disapproved on another ground in People v. Delles (1968) 69 Cal.2d 906, 910.) “When a plea agreement has been rescinded the parties are placed by the law in the position each had before the contract was entered into. [Citation.]” (People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258.)
We also note that “[a]s the moving party in a criminal action, it is the prosecutor’s responsibility to correctly advise, or make sure that the trial court correctly advises, the defendant of the permissible penalty scheme. [Citations.]” (People v. Velasquez, supra, 69 Cal.App.4th at p. 507.)
Based on the informations filed in Nos. 2388, 2445, and 2401, which referred to the prior strikes as “Burglary of Habitation,” it was reasonable for both parties to assume that the priors constituted strikes. We note that the People were not called upon to prove the priors due to defendant’s admission. Only after looking at the documents from the Texas priors does it appear that the 1993 strike could be interpreted as not qualifying as a strike, and after reading People v. Rodriguez, supra, 122 Cal.App.4th at pp. 131-137, a case that was decided after defendant accepted the plea on January 9, 2003, that the 1989 strike may not qualify as a strike.
It does not appear that at the time the plea was negotiated the People would have been alerted to the fact that the 1993 strike, or even the 1989 strike, may not qualify as strike. If defendant is right that his counsel never advised him that the priors did not qualify as strikes, the record supports that both parties labored under the misconception that the priors qualified as strikes.
We cannot fault the People with having wrongly charged the prior convictions. We certainly think the People reasonably could have believed they could prove them as serious or violent felony convictions. They were foreclosed from providing such proof by defendant’s guilty plea. Hence, even if we were to conclude that defendant was misadvised by his counsel in accepting the disposition in this case, the proper remedy is withdrawal of the plea due to the mutual mistake of the parties in entering into the disposition.
In addition, we believe that granting specific performance of the agreement in this case would create an unacceptable result.
Where the state breaches the plea bargain, under case law the remedy is either to require specific performance of the plea or to permit defendant to withdraw the plea. (People v. Mancheno, supra, 32 Cal.3d at pp. 860-861.) The California Supreme Court has stated, “The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of each case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information had been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases. [Citation.]” (Id. at p. 860, italics added.) “[A] defendant is not entitled to specific performance of a plea bargain ‘absent very special circumstances.’ [Citation.]” (People v. Calloway (1981) 29 Cal.3d. 666, 668.)
In the instant case, defendant claims he is entitled to specific performance of the agreement; that is, that we remand in order for him to be sentenced on the four burglaries with no strikes. To do so would generate a tremendous windfall for defendant that is “unsuitable under all the circumstances.” (People v. Mancheno, supra, 32 Cal.3dat p. 861.) Defendant was facing serious charges of rape by force of two women. If defendant were to be sentenced to just the four burglaries without consideration of the strikes, “[t]his is bounty in excess of that to which he is entitled.” (People v. Collins, supra, 21 Cal.3d at p. 215.) This outcome clearly is not an appropriate and just resolution of this case.
Defendant also claims that, should we determine that the plea should be withdrawn and the complaints reinstated, the sexual offenses should not be reinstated. However, this presumes again that the People were at fault in negotiating the disposition and that he received ineffective assistance of counsel, a claim he has not proven. Moreover, we don’t believe that People v. Collins, supra, 21 Cal.3d 208, a case cited by defendant, mandates such a result. In Collins, the court held that if a defendant does not repudiate the bargain by attacking his guilty plea, he is entitled to the benefit of his bargain. (Id. at p. 216.) Here, if defendant originally agreed to admit the priors so the sexual offenses would be dismissed, he would necessarily be repudiating the bargain and would not be entitled to the benefit of that bargain.
However, we also believe that due to this court’s previous finding on the First Petition, based on misinformation, defendant reasonably could believe that he could attack the prior convictions as to Nos. 2388 and 2445. Despite the fact that either defendant was well aware of the nature of the priors when he negotiated the agreement or that the negotiations were based on mutual mistake, it seems fair to establish a sentencing cap in order to not punish defendant for seeking review of his plea. As such, we believe that the appropriate remedy would be to reinstate the complaints, while ordering that defendant cannot be sentenced to more than the agreed-upon sentence of 100 years to life.
Based on the foregoing, we believe the appropriate remedy in this case is to reverse the judgment in No. 2401 and order the trial court to vacate the judgments in Nos. 2380, 2388, and 2445 and reinstate the original complaints, without limitation on the litigation of the priors. Furthermore, although defendant did not prove to this court that he received ineffective assistance of counsel and that the plea was based on deliberate improper actions by the People, it appears prudent that defendant should not be sentenced to more than the original plea agreement of 100 years to life if a new plea is negotiated or if he stands convicted in the four cases. Given the numerous litigation errors made by both parties in this case, we believe that this is the just and proper resolution.
III
DISPOSITION
The judgment appealed from in case No. E043345 (Blythe Superior Court case No. BLF002401) is reversed. The Second Petition (case No. E044844) is denied; however, based on this court’s declaration of the rights of the parties (In re Walters, supra, 15 Cal.3d at p. 744, fn. 3; In re Blessing, supra, 129 Cal.App.3d at p. 1028), the trial court is ordered to also vacate the judgments in Blythe Superior Court case Nos. BLF002380, BLF002388, and BLF002445, and the court and the parties are ordered to proceed in a manner consistent with this opinion.
We concur: GAUT, J., MILLER, J.