By Darren Chaker
In People v. Kim - Court of Appeal (Sixth District) Case #H034868 (3/30/2011), the court found if a trial court cannot lawfully impose a sentence, without a significant variance from the plea bargain, then at remand the People may amend the indictment to eliminate the mandatory sentencing enhancements or offer the defendant an opportunity to withdraw his plea. The "package deal" for three defendants included the agreement that the People would abandon the efforts to secure a death sentence and the defendants would be sentenced to life without the possibility of parole.
The court imposed a sentence, at the People's urging, of life without the possibility of parole, consecutive to three additional terms: life with the possibility of parole, 400 years to life, and 29 years, eight months. One defendant did not appeal; one appealed and then abandoned his appeal; and, Kim pursued his appellate remedies. Specific performance, or substantial specific performance, was not an option because it would bind the sentencing judge to a disposition that he considers unsuitable and it would result in a legally unauthorized sentence.
On remand, the People could amend the indictment to eliminate the mandatory consecutive enhancements pursuant to Penal Code section 12022.53, subdivision (d) and the court could then adopt the agreed sentence. If the trial court should not adopt the agreed to sentence, then it shall offer the defendant the opportunity to withdraw his plea (and face a possible death penalty).