The opinion
BAXTER, J., Conurring and Dissenting.
I concur in the judgment reversing the judgment of the Court of Appeal and remanding this matter to the superior court for further proceedings. I dissent from the judgment to the extent that it requires the trial court to permit defendant to withdraw his plea in those proceedings.
The majority correctly concludes that the trial court abused its discretion when it set aside its finding that defendant had committed the prior serious felony of attempted robbery. As the majority explains, defendant’s criminal record establishes beyond question that he is a person who comes within the spirit of the “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) 1 His criminal activity has continued unabated since his childhood except for those periods when he has been incarcerated. Contrary to the view of the trial court, he has committed a recent crime of violence, spousal battery. Moreover, while his repeated acts of driving while intoxicated by drugs or alcohol did not lead to injury or death, such conduct is proscribed and heavily punished when repeated because it creates a serious threat of injury to other drivers and their passengers, bystanders, and the intoxicated driver. This conduct should not be disregarded solely because it is not a “crime of violence” as that term is generally understood. Driving while intoxicated is a dangerous offense which often poses a threat of serious injury and thus may appropriately be considered in deciding whether punishment under the provisions of the Three Strikes law is warranted regardless of whether death or injury actually occurred. I therefore agree that defendant’s conduct and the extended sentence mandated by that law are within the spirit of the Three Strikes law.
*166 I also agree that the judgment imposed by the trial court must be reversed because the court failed to comply with the requirement of section 1385, subdivision (a), that the reason or reasons for exercising discretion to strike a prior felony conviction be set forth in a minute order. Because the court failed to do so, the order setting aside the finding that defendant had previously been convicted of attempted robbery was ineffective. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 532 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ] (Romero); People v. Orin (1975) 13 Cal.3d 937, 944 [ 120 Cal.Rptr. 65 , 533 P.2d 193 ].) Since defendant was a person within the provisions of the Three Strikes law, the lesser sentence imposed on defendant was unauthorized. For that reason too the superior court judgment must be reversed.
I depart company from the majority, however, when it holds that the trial court must permit defendant to withdraw his plea. I recognize that this relief was granted in Romero. In retrospect, however, I believe the court erred in doing so and thereby granting that defendant a benefit not granted to other defendants whose guilty pleas are based only on a hope or anticipation of leniency in sentencing, but to whom no promises of leniency have been made.
Had the prosecutor or the court given defendant any assurance that the prior conviction would be stricken or had any other promises of leniency been made which are not to be honored, the promise would have to be kept or the defendant be permitted to withdraw the plea of guilty. (§ 1192.5.) Due process requires no less. “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobello v. New York (1971) 404 U.S. 257, 262 [ 92 S.Ct. 495, 499 , 30 L.Ed.2d 427 ].) A guilty plea “is the defendant’s consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Brady v. United States (1970) 397 U.S. 742, 748 [ 90 S.Ct. 1463, 1469 , 25 L.Ed.2d 747 ], fn. omitted.)
When leave to withdraw a plea is not required by statute or mandated by constitutional considerations, however, whether to permit a defendant to withdraw the plea is a decision committed to the sound discretion of the trial court. Unless the defendant was not represented by counsel when the plea was entered, good cause must be shown by clear and convincing evidence before the court may permit the plea to be withdrawn when a defendant seeks to do so before judgment. Mistake, ignorance, or other factor which *167 overcomes the exercise of free judgment by the defendant is “good cause.” (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566 [ 116 Cal.Rptr. 242 , 526 P.2d 250 ].) The requirement of good cause shown by clear and convincing evidence is not lessened when a motion to withdraw a plea is made after judgment. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617 [ 44 Cal.Rptr.2d 666 ].)
“With respect to postjudgment motions to withdraw a guilty plea, the courts have required a showing essentially identical to that required under Penal Code section 1018: ‘[W]here on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which he was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty .... It should be noted, however . . . that this exceptional remedy applies . . . only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes.’ (People v. Schwarz [(1927)] 201 Cal. [309,] 314-315 [ 257 P. 71 ], italics added.) Again the decision to grant the motion lies within the trial court’s discretion.” (People v. Castenada, supra, 37 Cal.App.4th at p. 1617 .) “Post plea remorse” brought on by dissatisfaction with the sentence imposed is not good cause for withdrawal of a plea, however. “As a general rule, a plea of guilty may be withdrawn ‘for mistake, ignorance or inadvertence or any other factor overreaching defendant’s free and clear judgment.’ [Citations.] [H] . . . . [When a defendant] enters a guilty plea hoping for leniency which is not forthcoming . . . [the] situation has traditionally been held not to constitute a ground for the court to exercise its discretion in allowing the withdrawal of a guilty plea.” (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797-798 [ 114 Cal.Rptr. 596 , 523 P.2d 636 ] (Giron), fn. omitted.)
Romero went too far, therefore, in directing that the defendant there be permitted to withdraw his plea. The majority perpetuates the error here.
The majority concedes that no promises were made in this case. It must do so because the court made that clear, stating to counsel in defendant’s presence: “No promises are being made. I indicated to him that in appropriate cases like this, I have in fact struck a prior before today. However, I’m not promising that.” In taking the plea, the prosecutor expressly warned the defendant that the plea would be “an open plea, which means the court has not made you any promise what sentence you could receive and, therefore, depending upon what the court does at the time of sentencing, it could be something less than 28 years to life, but of course, that is the maximum.” Moreover, the judge made an express finding that no promises had been made.
*168 Since there were no unkept promises by the prosecutor- or the court, and defendant clearly knew the full range of possible punishment, the record does not reflect any statutory or constitutional compulsion to permit him to withdraw his plea. The majority relies therefore on the court’s “inherent power,” a discretionary power, to permit withdrawal of a plea. The court’s discretionary power to permit withdrawal of a plea is not as broad as the majority implies, however. First, it is a power vested in the trial court in the first instance. Second, it is a limited power which may be exercised only on clear and convincing evidence of good cause. If all of the factors relevant to determining good cause have been developed and are reflected in the record, an appellate court may be able to determine without remand that it would be an abuse of discretion were the trial court to deny a postjudgment motion to withdraw a guilty plea. That is not the case here.
Whether this defendant entered the plea in reliance on, or was substantially influenced in deciding to plead guilty, by the judge’s comment regarding his inclination to strike one prior conviction or simply hoped that the court would do so cannot be determined on this record. Whether a factor overreaching a defendant’s judgment induced a guilty plea presents a factual question on which both the defendant and prosecutor are entitled to offer evidence. The judge’s comment alone is insufficient to establish that an overreaching factor led to defendant’s entry of a guilty plea he would not otherwise have entered. At best the record supports an inference that the trial court’s comment regarding its inclination to strike one prior conviction influenced defendant. Certainly there is no clear and convincing evidence here that the comment did so.
The majority, without reference to the well-established law circumscribing the power of the court to permit withdrawal of a guilty plea, holds that “in fairness” defendant should be permitted to withdraw his plea. It does so in the apparent assumption that the trial court’s comments induced the plea, but that assumption is not supported by any evidence. The majority holds in effect that, as a matter of law, such comments about a court’s inclinations regarding sentence induce pleas which a defendant may withdraw if the anticipated sentence is not imposed. I cannot join in either the assumption or the holding.
I agree that a decision to permit withdrawal of a plea should be decided in the interest of justice. ( Giron, supra, 11 Cal.3d at pp. 796-797.) I also agree, in light of the comments made by the judge before defendant entered his plea, that this may be a case in which the usual rule disfavoring withdrawal of a plea solely because anticipated leniency was not forthcoming should not be applied. I do not agree, however, that this court may order the trial court *169 to permit defendant to withdraw the plea. The majority accepts the concession by the People at oral argument that the court’s statement was a “powerful inducement,” but defendant has not presented evidence to that effect and the prosecutor who was present at the time the plea was entered has not been afforded the opportunity to offer contrary evidence.
Based on this record, this court is in no position to rule that it would be an abuse of discretion to deny a motion to withdraw the plea, yet it concludes that it is proper to decide the question itself. It thereby usurps a power vested in the trial court.
Since the sentence imposed in this case was unauthorized, the judgment of the superior court must be reversed and the matter remanded for a new probation and sentence hearing. At that hearing defendant may move to withdraw his plea and the trial court may hear his reasons and any opposition from the local prosecutor.
To the extent that the disposition ordered by the majority differs, I dissent from the judgment.
George, C. J., and Chin, J., concurred.
Appellant’s petition for a rehearing was denied February 25, 1998, and the opinion was modified to read as printed above.
All subsequent statutory references are to the Penal Code.