Falco, In re

• Decision Date: 28 January 1986
• Citation: 222 Cal.Rptr. 648,176 Cal.App.3d 1161
• Court: California Court of Appeals Court of Appeals
• Parties: In re Christopher FALCO on Habeas Corpus. In re Roy E. SMITH on Habeas Corpus. In re Michael PUNZAL on Habeas Corpus. In re Andrea BOWEN on Habeas Corpus. AO 32559, AO 32627, AO 32684 and AO 32751.

Page 648

222 Cal.Rptr. 648

176 Cal.App.3d 1161

In re Christopher FALCO on Habeas Corpus In re Roy E. SMITH on Habeas Corpus In re Michael PUNZAL on Habeas Corpus In re Andrea BOWEN on Habeas Corpus.

AO 32559, AO 32627, AO 32684 and AO 32751.

Court of Appeal, First District, Division 1, California.

Jan. 28, 1986.

Jeff Brown, Public Defender, Peter G. Keane, Chief Deputy, Grace Lidia Suarez and Donna Teshima, Deputy Public Defenders, for petitioner Falco

Jeff Brown, Public Defender, Peter G. Keane, Chief Deputy, Grace Lidia Suarez and Alfredo Vea, Jr., Deputy Public Defenders, for petitioner Smith.

Jeff Brown, Public Defender, Peter G. Keane, Chief Deputy, Grace Lidia Suarez and Lisa Dewberry, Deputy Public Defenders, San Francisco, for petitioners Punzal and Bowen.

John K. Van de Kamp, Atty. Gen., Martin S. Kaye and Donna B. Chew, Deputy Attys. Gen., and Sandra E. Schwartz, Acting Legal Counsel to the Sheriff, San Francisco, for respondent.

RACANELLI, Presiding Justice.

SUMMARY

By these several petitions consolidated for decision, petitioners Christopher Falco, Roy E. Smith, Michael Punzal and Andrea Bowen challenge sentences imposed on them on the grounds that such sentences exceeded the terms of their plea bargains, contravened the requirements of Penal Code section 1192.5 ¹ and otherwise deprived them of due process of law. The superior court, while expressly acknowledging that the actual sentences imposed were contrary to the terms of the negotiated plea bargains, sought to justify its sentencing actions on the basis that petitioners' failure to appear at the times set for sentencing constituted a breach of the plea bargains, forfeiting their right to withdraw their pleas and to specific performance of the original conditional plea agreements. For reasons which we will explain, we order the writs to issue and remand to respondent court with directions. ²

BACKGROUND

The relevant procedural and factual background is essentially undisputed and may be summarized as follows:

Falco was originally charged in two counts with violations of the Health and Safety Code. On July 24, 1985, he pled guilty to a violation of Health and Safety On August 21, 1985, the date set for sentencing, Falco arrived late, and the matter was continued to the next day; he failed to appear on the following day, and a bench warrant issued.

                Code section 11377 (possession of a controlled substance) on condition that he receive a grant of probation subject, inter alia, to the condition that he serve 90 days in the county jail or in the Sheriff's Work Alternative Program (hereafter SWAP). 3  Falco was expressly informed that if the court withdrew its approval of the agreed disposition at the time of sentencing, he could withdraw his guilty plea.  The remaining charge was dismissed.
                

On August 26, 1985, Falco surrendered himself and sentencing was again continued.

On August 30, 1985, over Falco's objection and companion request to withdraw his plea under the authority of section 1192.5 and People v. Morris (1979) 97 Cal.App.3d 358, 158 Cal.Rptr. 722, the court imposed sentence consistent with the negotiated disposition except that the 90 days county jail condition was to be served without benefit either of the SWAP or county parole. Falco was promptly remanded to custody. His petition followed.

The procedural circumstances surrounding entry of the conditional pleas of the other petitioners and events at sentencing were essentially similar. ⁴

In each case, petitioners failed to appear at the time regularly set for sentencing resulting in the issuance of bench warrants. Following their apprehension, petitioners were brought before the court where sentence was imposed consistent with the terms of the negotiated plea bargains with one notable exception: in each case an additional period of actual confinement in the county jail was imposed. ⁵

Petitioners Smith, Punzal and Bowen likewise requested leave to withdraw their pleas at the time of sentencing when they learned that the court did not intend to impose a sentence within the stated terms of the negotiated dispositions. Notwithstanding the conditional plea agreements and explicit advisement that petitioners could withdraw their pleas at the time of sentencing in the event the court withdrew its approval, the court then imposed the more severe terms of punishment reasoning, it appears, that it was free to do so because petitioners "broke" their bargains by failing to appear at the time set for sentencing.

DISCUSSION

The practice of plea bargaining is well accepted in American criminal procedure (People v. West (1970) 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409; People v. Mancheno (1982) 32 Cal.3d 855, 859, 187 Cal.Rptr. 441, 654 P.2d 211), and has been expressly endorsed by statute in California since 1970. ( § 1192.5; People v. Johnson (1974) 10 Cal.3d 868, 871, fn. 1, 112 Cal.Rptr. 556, 519 P.2d 604; People v. Daugherty (1981) 123 Cal.App.3d 314, 320, 176 Thus, while it lies within the exclusive province of the court to accept or reject a proffered plea bargain (People v. Daugherty, supra, 123 Cal.App.3d 314, 321, 176 Cal.Rptr. 500; People v. Morris, supra, 97 Cal.App.3d 358, 363, 158 Cal. Rptr. 722), which also retains broad discretion to withdraw its prior approval at the time of sentencing (People v. Johnson, supra, 10 Cal.3d 868, 873, 112 Cal.Rptr. 556, 519 P.2d 604), there is no authority consistent with due process requirements to justify implementation of the bargain in a manner contrary to its explicit terms, at least in the absence of the defendant's consent. (See generally Santobello v. New York (1971) 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, passim; People v. Mancheno, supra, 32 Cal.3d 855, 860, 187 Cal.Rptr. 441, 654 P.2d 211; People v. Calloway (1981) 29 Cal.3d 666, 673, 175 Cal.Rptr. 596, 631 P.2d 30; People v. Johnson, supra, 10 Cal.3d at pp. 872-873, 112 Cal.Rptr. 556, 519 P.2d 604; see also People v. Delles (1968) 69 Cal.2d 906, 910-911, 73 Cal.Rptr. 389, 447 P.2d 629.) Although the trial court is authorized to withdraw its approval "in the light of further consideration of the matter ..." ( § 1192.5), it had no authority to enforce a bargain essentially modified so as to increase punishment without the parties' consent. The trial court's motivating reason, characterizing petitioners' failure to appear as a breach of agreement, provides no legal justification for substitution of a more onerous term of punishment. In denying petitioners' requests to withdraw their pleas while implementing the revised plea bargains, the trial court--in effect--summarily sentenced petitioners for their nonappearance and without benefit of minimum procedural and statutory safeguards. (Cf. People v. Morris, supra, 97 Cal.App.3d at pp. 363-364, 158 Cal.Rptr. 722; accord People v. Barrero (1985) 163 Cal.App.3d 1080, 210 Cal.Rptr. 70.) Such action constituted a palpable abuse of discretion.

                Cal.Rptr. 500.) 6  It is indisputable that section 1192.5 explicitly authorizes a guilty plea which may "specify the punishment" to the same extent it could be fixed by the court upon conviction.  The statute also makes it unmistakably clear that once the plea accepted by the prosecutor obtains initial judicial approval, the defendant "cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea."   The court's initial approval is not binding and may be withdrawn at the time of sentencing;  "in such case, the defendant shall be permitted to withdraw his plea if he desires to do so."

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