Opinion

INTRODUCTION

On the day set for jury trial, appellant Armando T. Foya contemplated a plea agreement negotiated with the prosecution for a principal four-year prison term that involved disposition of both cases summarized below. He entered into a protracted and mutually frustrating discussion with the trial judge, who asked multiple times if appellant wanted to plead or proceed to trial. Appellant, however, principally questioned why he could not enter a plea of not guilty by reason of insanity (NGI), which was a question he had raised on previous occasions. Without stating any reason, and just after appellant indicated his desire to take the plea agreement, the court said it would not approve the plea and withdrew it from further consideration. Trial commenced.

In Bakersfield Superior Court case No. BF151668A (the present matter), a jury convicted appellant of reckless evasion of a peace officer (Veh. Code, § 2800.2; count 1); hit and run resulting in property damage (Veh. Code, § 20002, subd. (a); count 2); driving under the influence of a drug (Veh. Code, § 23152, former subd. (a); count 3); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 4); resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)(1); count 6); and driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 7). The jury found him not guilty of vandalism (Pen. Code, § 594, subd. (b)(2)(A); count 5). The trial court found true that appellant had suffered a prior strike and four prior prison terms. Appellant was sentenced to an aggregate term of 10 years in state prison.

In companion case No. BF144483A, appellant was found in violation of probation and was sentenced to six years in state prison, to be served concurrently with the 10 years imposed in the case above.

On appeal, appellant raises four issues. We find merit to his claim that the trial court abused its discretion in rejecting the plea bargain in the absence of any stated justification. We reverse the judgment and remand for further proceedings consistent with this opinion. However, due to a lack of prejudice, we reject appellant’s contentions that he was denied his statutory right to plead NGI or that the trial court abused its discretion in denying two motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ] (Marsden). Finally, in light of the remand, we do not reach appellant’s last issue that he was denied the effective assistance of counsel and due process.

BACKGROUND

I. Trial facts from the present matter

Appellant did not present any evidence. The prosecution established the following relevant facts.

On November 9, 2013, appellant drove through a stop sign in Bakersfield, and then failed to yield when police officers pursued him in marked police vehicles with flashing emergency lights and sirens. During the pursuit, appellant drove through four red lights, travelled 60 to 70 miles per hour, and swerved around other vehicles. Officers observed appellant “bouncing up and down” on his driver’s seat, and he was gesturing with his hands as if he was waving at the pursuing officers. When the chase entered a residential neighborhood, officers cancelled the high-speed pursuit, turned off their lights and sirens, and reduced their speeds. They continued to follow appellant at a safe speed. Appellant initially pulled away, but then began to slow down. During a turn, appellant lost control of his vehicle and struck a chainlink fence. He ran from his vehicle.

Officers chased appellant on foot. He ignored officers’ commands to stop and continued to flee. At one point, appellant looked back at an officer after the officer yelled for him to stop, but appellant continued to run away. Officers lost sight of appellant after he jumped a fence. Law enforcement established a perimeter. About 30 to 40 minutes later, officers located appellant hiding in a parked car in a nearby apartment complex. He was lying on the floorboard on his chest and side, trying to be as low as possible between the back passenger seat and the front seats. He was hiding under articles of clothing. He failed to comply with officers’ commands and resisted efforts to be arrested. After a brief struggle, appellant was removed from the vehicle and handcuffed. After he was restrained, appellant’s face began to appear pale and he was sweating profusely. He became unresponsive and was transported to a hospital.

A physician determined appellant was unresponsive due to a methamphetamine coma. A blood test confirmed that appellant was impaired due to this drug in his system.

After his arrest, appellant placed a telephone call from county jail to an acquaintance. The call was recorded and played for the jury. Appellant said he fled from police because he had “shit” in his car.

II. Procedural history of the present matter

Given the importance to the issues on appeal, we set out in some detail the procedural history.

A. Competency questions arise

On November 26, 2013, criminal proceedings were suspended for the purpose of determining if appellant was competent to stand trial and cooperate with defense counsel. On January 3, 2014, the court found appellant competent and criminal proceedings were reinstated.

B. The Marsden hearings

Four Marsden hearings occurred prior to trial. Each is summarized below as relevant to the issues raised in the present appeal.

1. The first hearing

The first Marsden hearing occurred on November 26, 2013 (on the same day defense counsel requested a competency evaluation). Appellant raised claims regarding his appointed counsel that are not relevant to the present appeal. The court found no basis to substitute counsel and denied appellant’s motion.

2. The second hearing

The second Marsden hearing occurred on January 3, 2014, during which defense counsel said appellant had been diagnosed with paranoid schizophrenia and bipolar disorder, and had been previously found incompetent and sent to Patton State Hospital during his previous case. Defense counsel stated:

“[Appellant] also told me he wanted to plea [NGI] at the prelim, and I told him I wouldn’t—I didn’t want to do that at the prelim because I didn’t think it would be—I didn’t think it would change the prelim, that would be a call the trial attorney would have to make.

“But that, combined with him telling me he had paranoid schizophrenia issues combined with him believing that I lied to him when I don’t believe I ever lied to him, and his not wanting to communicate with me, made me believe that there was enough information to declare a doubt.”

After hearing further comments, the court denied the Marsden motion.

3. The third hearing

On January 16, 2014, a third Marsden hearing took place. During the hearing, defense counsel stated the following: “[Appellant] also told me that he was schizophrenic which when I interviewed him before the first setting of the case, at which time I—it seemed that we could have communication and he seemed lucid and I didn’t think I needed to do a [Penal Code section] 1368 [motion]. But he told me he wanted to plead NGI after the Marsden and because he seemed irrational and I had doubts about—if—I began to have doubts about his ability to help—to help—to help with his representation and I spoke with my supervisor and I thought that I should [file a Penal Code section 1368 motion for] him at that time.”

After hearing further comments, the court granted the Marsden motion, finding that the attorney-client relationship had broken down.

4. The fourth hearing

On April 16, 2014, the matter was transferred from the presiding department to the trial court. At approximately 10:13 a.m., appellant’s fourth Marsden hearing commenced. Appellant made the following comments: “I asked [my new defense counsel] about an NGI plea. He told me there’s no way he would change my plea to an NGI plea because a judge wouldn’t accept it, which isn’t right, because that’s a plea—you can change your plea to that anytime because there’s four pleas, and he lied to me about that.”

The court later informed appellant that defense counsel’s statement that the judge would not accept an NGI plea at this time was true. The following exchange occurred:

After a recess, appellant’s counsel explained why he believed appellant was confused, and defense counsel indicated a possible plea agreement had been discussed with the prosecution. Appellant had counteroffered a four-year prison term on the felony evasion charge, concurrent time for the misdemeanors, and the four years would be served concurrently with the six-year probation revocation case. The prosecution had accepted that offer, but then appellant had concerns regarding how the time would be served and how his credits in the underlying revocation matter would be applied.

The following relevant comments occurred:

Appellant countered that a psychiatrist, and not his defense counsel, had to make the determination of his mental state. Appellant noted he had a mental health history and stated he had a mental illness.

The judge spoke with appellant at length regarding the mechanics of the pending plea offer and whether appellant was interested in accepting it. Appellant indicated a willingness to accept it. The court concluded that defense counsel had reasonably represented appellant and would continue to do so during the proceedings. The court determined that defense counsel was ready and able to proceed with trial, appellant was responsible for any breakdown in communication, and appellant could still be represented effectively by his defense counsel. The court found that appellant’s stated dissatis-factions with his counsel’s performance had not met the required burden of proof. The court denied the Marsden motion.

C. The April 16, 2014, open court proceeding

Upon conclusion of the fourth Marsden hearing, and at approximately 10:56 a.m., appellant and counsel were present in open court, and a possible change of plea was discussed. A brief recess was taken to allow defense counsel and appellant to discuss that further. At approximately 11:37 a.m., appellant and counsel were again present in open court.

Appellant complained that defense counsel was lying to him about custody credits. Defense counsel explained the custody credit issues to the court, and the court tried to explain the calculations. When those discussions ended, appellant, through his counsel, asked the court for an indication whether it would strike a prior strike, which the court declined to do. The court, however, stated it would entertain a formal Romero motion. Appellant asked if his prison priors would be used against him if he went to trial and lost. The court stated that the prosecution would likely prove all of the prison priors alleged, and the judge would consider them at sentencing. The following relevant exchange then occurred:

After the lunch recess and back on the record, defense counsel indicated appellant wanted to accept the plea bargain and was prepared to address the court regarding his conduct just prior to the court rejecting the plea bargain. The judge responded that the plea had been “taken off the table. We’re going to go forward with a trial.” Appellant attempted to speak, but the court admonished him to speak to his defense counsel if he wished to be heard. The proceeding continued with a discussion on motions in limine.

DISCUSSION

I. Prejudice Did Not Result From Appellant’s Inability To Plead NGP

II. Prejudice did not result from the denial of the Marsden motions

Appellant argues the trial court abused its discretion when it failed to grant two of his requested Marsden motions to appoint new counsel after counsel refused to allow an NGI plea. He contends the error was prejudicial, requiring reversal.

A. Standard of review

The denial of a Marsden motion is reviewed on appeal for an abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230 [ 142 Cal.Rptr.3d 481 , 278 P.3d 754 ] (Streeter).) In this context, an abuse of discretion does not exist unless the defendant’s right to assistance of counsel was substantially impaired from the failure to replace the defendant’s attorney. (Ibid.)

The standard for prejudice regarding a denied Marsden motion is under Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ], (People v. Solorzano (2005) 126 Cal.App.4th 1063, 1071 [ 24 Cal.Rptr.3d 735 ].) Under that standard, we must ask whether the denial was harmless beyond a reasonable doubt. (Ibid.)

B. Analysis

When a defendant seeks to discharge appointed counsel pursuant to Marsden , the trial court must permit an opportunity for the defendant to explain the reasons and provide specific instances of inadequate performance. (Streeter, supra, 54 Cal.4th at p. 230 .) The requested relief should be granted if appointed counsel is not providing adequate representation. Relief should also be granted if the defendant and counsel have an irreconcilable conflict so that ineffective representation is likely to occur. (Ibid.) A trial court should substitute new counsel upon learning in a Marsden hearing that defense counsel refuses to allow a defendant to exercise his or her right to enter an NGI plea. (People v. Henning (2009) 178 Cal.App.4th 388, 404 [ 100 Cal.Rptr.3d 419 ] (Henning).)

Appellant asserts his Marsden motions in the second and fourth hearings should have been granted because his attorneys would not permit an NGI plea. He argues the record does not demonstrate that his counsel consulted with experts or otherwise investigated his sanity at the time of this crime. He maintains it cannot be determined that the trial court’s denial of his Marsden motions was harmless beyond a reasonable doubt in light of his history of diagnosed mental illness, his strange behavior during the proceedings, and his conduct during the crime’s commission. He relies upon Henning, supra, 178 Cal.App.4th 388 , to establish prejudice.

Respondent contends the trial court did not abuse its discretion in denying the two challenged Marsden motions, also citing Henning, supra, 178 Cal.App.4th 388 . Respondent asserts neither counsel in both disputed Marsden hearings “refused to allow appellant to enter an NGI [plea] over his unequivocal request.” Respondent notes that defense counsel raised concerns in the fourth Marsden hearing that appellant sought the plea only to delay the proceedings and the merits of that defense were unclear. In the alternative, respondent maintains no prejudice resulted even if error occurred.

We need not resolve the parties’ dispute regarding whether or not an abuse of discretion occurred in the trial court’s denial of the two challenged Marsden hearings. Even when we presume, without so deciding, that error occurred in one or both hearings, this record does not establish prejudice. As discussed in the unpublished portion, appellant was unable to use an insanity defense in the probation revocation proceedings in companion case No. BF144483A. (People v. Harrison (1988) 199 Cal.App.3d 803, 809-810 [ 245 Cal.Rptr. 204 ].) Further, his actions during the commission of this crime showed a strategic effort to avoid capture. His subsequent telephone call confirmed he knowingly fled from police.

Henning does not alter our conclusion. In Henning, the Court of Appeal found error when the trial court failed to replace appointed counsel following a Marsden hearing. Counsel refused to allow an NGI plea despite the defendant’s wish to do so. ( Henning, supra, 178 Cal.App.4th at pp. 397-398.) However, the Henning court determined the record did not establish a credible basis for an insanity defense. (Id. at p. 401.) The defendant’s behavior during the crime established he understood his actions were wrong, and the record did not demonstrate any evidence of a mental defect or condition rendering him unable to appreciate the wrongfulness of his conduct. Defense counsel consulted with multiple experts, all of whom concluded the defendant was not insane at the time of the offense. (Ibid.) As such, the trial court’s error was deemed harmless. (Id. at p. 402.)

Here, although this record does not reflect that appellant’s counsel pursued an NGI defense, appellant’s behavior and postarrest statement establish he was capable of distinguishing right from wrong, and knew or understood the nature of his actions. It is beyond a reasonable doubt that any presumed error associated with the Marsden hearings was harmless. Accordingly, appellant’s convictions will not be reversed for this claim of error.

III. The trial court abused its discretion when it rejected the proposed plea bargain in the absence of any justification

Appellant asserts the trial court abused its discretion when it refused to accept the plea bargain. He contends the court’s refusal was not based on any disagreement about the substance of the plea deal, but over frustration with his equivocating.

A. Standard of review

Without citing any specific authority, both parties take the position that an abuse of discretion standard is appropriate in analyzing this claim. We agree because a deferential abuse of discretion standard is used to analyze whether a trial court properly accepted a conditional plea of guilty or no contest pursuant to Penal Code section 1192.5. (People v. Holmes (2004) 32 Cal.4th 432, 443 [ 9 Cal.Rptr.3d 678 , 84 P.3d 366 ].) Similarly, and by analogy, a deferential abuse of discretion standard is also used to review a trial court’s ruling denying a mistrial. (People v. Bolden (2002) 29 Cal.4th 515, 555 [127 Cal.Rptr.2d 802, 58 P.3d 931 ].) An abuse of discretion is present when a court’s ruling is “ ‘outside the bounds of reason.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 408 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ].)

B. Analysis

Appellant argues the court initially intended to approve the plea bargain because it discussed the plea agreement with appellant during the fourth Marsden hearing, and the court gave appellant and defense counsel additional time to confer about it. Following that recess, the court responded to appellant’s inquiries about time credits and about whether the court would consider a Romero motion, and the court confirmed with the prosecution that the People were still in agreement with the pending offer. Appellant contends the trial court’s abrupt decision to reverse itself and refuse the plea bargain was an abuse of discretion. He maintains the court’s refusal did not arise over concerns of the bargain’s terms or because the plea interfered with a court policy, but rather over “exasperation” regarding appellant’s “incessant questions about pleading NGI.”

Respondent contends neither appellant nor the trial court accepted the plea bargain, and the court did not withdraw the plea from consideration because of prejudice against appellant. Instead, respondent asserts the court withdrew the offer because appellant continued to equivocate regarding its acceptance. Respondent maintains that “appellant’s issues with the plea bargain had nothing to do with an NGI plea, but rather pertained to custody credits and whether the court would strike his strike and prison priors.” We find merit to appellant’s concerns and reject respondent’s contentions.

Plea negotiations and agreements are an integral, essential and accepted component of our criminal justice system. (People v. Segura (2008) 44 Cal.4th 921, 929 [ 80 Cal.Rptr.3d 715 , 188 P.3d 649 ] (Segura).) Such agreements promote speed, economy and the finality of judgments. (Ibid.) The process involves an agreement negotiated by the People and the defendant, which requires judicial approval as an essential condition precedent to the bargain’s effectiveness. (Id. at pp. 929-930.)

A court may set a deadline in the pretrial process for the acceptance of a plea bargain to facilitate effective calendar management. (People v. Cobb (1983) 139 Cal.App.3d 578, 581 [ 188 Cal.Rptr. 712 ].) A “trial court may decide not to approve the terms of a plea agreement negotiated by the parties.” (Segura, supra, 44 Cal.4th at p. 931.) If the court believes the agreed-upon disposition is not fair, it may reject the bargain, but it cannot change the agreement without the consent of the parties. (Ibid.) “[Penal Code] section 1192.5 impliedly vests a court with ‘broad discretion to withdraw its prior approval of a negotiated plea.’ ” (People v. Stringham (1988) 206 Cal.App.3d 184, 199 [ 253 Cal.Rptr. 484 ].)

“ ‘Judicial discretion’ ” in this context has been described by our Courts of Appeal as a power exercised to award justice based upon reason and law. (People v. Stringham, supra, 206 Cal.App.3d at p. 199 .) When either law or a fixed rule is lacking, a judge is to decide a question with a view of expediency, or in the interests of equity and justice. “ ‘The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy or warped by prejudice or moved by any kind of influence save alone the overwhelming passion to do that which is just.’ ” (Id. at p. 200.)

Our Supreme Court has stated that trial courts, when exercising discretion to approve or reject proposed plea bargains, are charged to protect and promote the public’s interest in protecting victims of crimes, vigorous prosecution of the accused, and imposing an appropriate punishment. (In re Alvernaz (1992) 2 Cal.4th 924, 941 [ 8 Cal.Rptr.2d 713 , 830 P.2d 747 ] (Alvernaz).) As a result, “a trial court’s approval of a proposed plea bargain must represent an informed decision in furtherance of the interests of society [citation]; as recognized by both the Legislature and the judiciary, the trial court may not arbitrarily abdicate that responsibility.” (Ibid.)

Here, appellant made it clear he was accepting the plea agreement. First, appellant stated “I’ll sign” before the court said it was not going to accept the plea. After the court’s statement, appellant said he had already filled out the change of plea form, and said, “I want to take it. I mean, I’m signing for it right now.” The court responded, “Too bad.”

Second, after the lunch recess, appellant stated through defense counsel that he sincerely desired to take advantage of the plea bargain. The court said “that option has been taken off the table. We’re going to go forward with a trial.”

At no point did the trial court state that appellant’s negotiated plea agreement was unfair or contrary to the public interest. The trial court did not indicate why the plea bargain was unacceptable. According to the record, the jury pool was not present in the courtroom that day until approximately 3:59 p.m., after the parties concluded motions in limine. This record shows an arbitrary rejection of the plea agreement and a failure to exercise the required judicial discretion. (Alvernaz, supra, 2 Cal.4th at p. 941 .) Accordingly, the trial court abused its discretion. We now turn to the subject of the appropriate remedy.

Appellant requests a remand so he can decide whether to accept the previously negotiated agreement and, if he accepts it, the trial court should impose that sentence unless a finding is made that the disposition is unacceptable based on legitimate grounds. If he does not wish to accept the plea bargain, or if the court declines to approve it for valid reasons, his conviction should be entirely vacated and the proceedings restored to the original status quo. He asserts that the probation case should be incorporated within this remedy as the negotiated disposition included both cases. He cites People v. Kaanehe (1977) 19 Cal.3d 1, 13 [ 136 Cal.Rptr. 409 , 559 P.2d 1028 ] (Kaanehe) to support his approach.

Respondent contends specific performance of the plea bargain is not an appropriate remedy even if error occurred. Respondent generally cites Alvernaz, supra, 2 Cal.4th 924 . Although neither party’s Supreme Court case is on point, we take guidance from these opinions as they discuss how and under what circumstances a previous plea agreement should be enforced.

In Kaanehe , the defendant appealed from a judgment entered upon negotiated pleas of guilty. The Supreme Court determined that the prosecution breached the plea bargain agreement and concluded that the defendant was entitled to be rearraigned for resentencing or, at his option, to withdraw his guilty pleas and be arraigned again on all charges. ( Kaanehe, supra, 19 Cal.3d at pp. 5-6.) The breach occurred when the prosecutor made recommendations to the trial court regarding the imposition of a prison sentence despite agreeing to give up that right. {Id. at pp. 11-13.)

Both the People and a defendant may seek specific enforcement. The remedy depends on the nature of the breach and which party seeks to enforce it. When the prosecutor refuses to comply with the agreement, specific enforcement would be an order directing the prosecutor to fulfill the bargain. When the trial court refuses to sentence according to the agreement, specific enforcement would direct the judge to resentence the defendant according to the plea bargain. “The effect is to limit the remedy to an order directing fulfillment of the bargain. In such instances, the defendant is not allowed to withdraw his guilty plea.” (Kaanehe, supra, 19 Cal.3d at p. 13 .)

Kaanehe cautioned “that a defendant should not be entitled to enforce an agreement between himself and the prosecutor calling for a particular disposition against the trial court absent very special circumstances.” (Kaanehe, supra, 19 Cal.3d at p. 13 .) Instead, the preferred remedy is to allow a defendant to withdraw the plea and restore the proceedings to the status quo. {Id. at pp. 13-14.) “Specific enforcement of a particular agreed upon disposition must be strictly limited because it is not intended that a defendant and prosecutor be able to bind a trial court which is required to weigh the presentence report and exercise its customary sentencing discretion.” {Id. at P- 14.)

Kaanehe determined specific enforcement was inappropriate because a substantial possibility existed that the remedy would not completely repair the harm caused by the prosecutor’s breach, and the breach was done willfully and deliberately. The Supreme Court held that, because the breach was so glaring, the defendant needed the option of either “rearraignment” for sentencing with the prosecutor’s previous communications stricken from the record, or the right to withdraw his guilty pleas with the restoration of all charges and resumption of trial proceedings. ( Kaanehe, supra, 19 Cal.3d at pp. 14-15.) Further proceedings had to occur before a new judge. (Id. at p. 15.)

In Alvemaz, the Supreme Court decided under what circumstances a criminal defendant could challenge a conviction and sentence when claiming a pretrial plea bargain was rejected due to ineffective assistance of counsel. (Alvernaz, supra, 2 Cal.4th at p. 928 .) Alvernaz held a Sixth Amendment violation is present when a defendant demonstrates that ineffective representation at the pretrial stage of a criminal proceeding caused the defendant to proceed to trial even if a fair trial resulted. When such a constitutional violation occurs, the judgment must either be modified consistent with the terms of the offered plea bargain, or a new trial is required with resumption of the plea negotiation process. (Alvernaz, supra, at p. 928 .) To establish prejudice, a defendant must prove he or she would have accepted the plea bargain, and it would have been approved by the trial court. (Id. at pp. 940-941.)

It was noted in Alvemaz that the remedy of specific enforcement of a failed plea bargain is generally disfavored when it will limit the judge’s sentencing discretion in light of changed circumstances between the acceptance of the plea and sentencing. “Specific enforcement of a failed plea bargain is not a remedy required by the federal Constitution.” (Alvernaz, supra, 2 Cal.4th at p. 942 .) As a result, Alvemaz held that specific enforcement of a plea offer following trial and conviction is neither constitutionally required nor consistent with the trial court’s broad discretion in determining the appropriate sentence for a defendant’s criminal conduct where ineffective assistance of counsel causes a defendant to reject the pretrial plea bargain. (Id. at p. 943.) Moreover, the Supreme Court noted that mandatory reinstatement of the plea bargain would be inconsistent with the legitimate exercise of the prosecutorial discretion involved in the negotiation and withdrawal of offered plea bargains. The prosecution could view the case very differently following a fair trial and conviction. The sentencing contemplated in the pretrial plea offer could no longer be consistent with the public interest and a prosecutor should not be locked into the proposed pretrial disposition. (Ibid.) (7) Accordingly, “the appropriate remedy for ineffective assistance of counsel that has resulted in a defendant’s decision to reject an offered plea bargain (and to proceed to trial) is as follows: After the granting of relief by the trial court (on a motion for new trial or in a habeas corpus proceeding) or by an appellate court, the district attorney shall submit the previously offered plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to retry the defendant and resume the plea negotiation process. If the plea bargain is submitted to and approved by the trial court, the judgment shall be modified consistent with the terms of the plea bargain.” {Id. at p. 944.) If plea negotiations are resumed, “the prosecution has acquired as substantial bargaining leverage the circumstance of having obtained a conviction of the defendant following a trial. The right to a new trial, however, does not leave the defendant with an ‘empty’ remedy. A defendant is in a better position, in preparing for a new trial following trial and conviction, to evaluate the strengths and weaknesses of both the prosecution’s case and the defense’s case. Furthermore, such a defendant is restored the bargaining leverage often afforded by the prosecutor’s desire to avoid the time and expense of a new trial and the accompanying uncertainty as to the outcome of the proceedings.” {Ibid.)

Here, consistent with the reasoning in these opinions, it is apparent we cannot divest the trial court of its sentencing discretion. (Alvernaz, supra, 2 Cal.4th at p. 942; Kaanehe, supra, 19 Cal.3d at p. 14 .) Although the present matter does not involve a finding of ineffective assistance of counsel, the remedy discussed in Alvemaz appears appropriate as it implements the dual concerns of protecting appellant’s rights while also providing prosecutorial discretion. (Alvernaz, supra, at p. 943 .)

Accordingly, upon remand, the district attorney shall submit the previously negotiated plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to retry appellant and resume the plea negotiation process. Because the previously offered plea bargain included both cases, we agree with appellant that the probation case should be included within this remedy. If the plea bargain is submitted to and approved by the trial court, the judgment shall be modified consistent with the terms of the plea bargain. (Alvernaz, supra, 2 Cal.4th at p. 944.) If the plea bargain is either not submitted to the trial court or is not approved, then appellant shall be retried.

DISPOSITION

The judgment is reversed. The sentences in both cases (case No. BF151668A & case No. BF144483A) are vacated. These matters are remanded to the trial court for further proceedings. The district attorney shall submit the previously negotiated plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to retry appellant and resume the negotiation process. If the previously negotiated plea bargain is submitted and approved by the trial court, judgment shall be entered consistent with the terms of the plea bargain. If the previously negotiated plea bargain is either not submitted to the trial court or not approved, then appellant shall be retried.

Further references to case numbers are to Bakersfield Superior Court case numbers unless otherwise indicated. In companion case No. BF144483A, appellant was found incompetent to stand trial or cooperate with counsel and, on or about December 19, 2012, he was committed to Patton State Hospital. On May 31, 2013, he was found competent to stand trial and able to cooperate with counsel. Criminal proceedings were reinstated. After his competency was deemed restored, his appointed counsel asked for an additional evaluation pursuant to Penal Code section 1368, which was denied. People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ] (Romero). See footnote, ante, page 932. In light of the remand, we will not address appellant’s final contention that he was denied his constitutional right to effective assistance of counsel and due process. We take no position regarding the merits of appellant entering an NGI plea if appellant is retried.