People v. Barajas
| Decision Date | 27 July 1972 |
| Docket Number | Cr. 5056 |
| Citation | 26 Cal.App.3d 932,103 Cal.Rptr. 405 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Francisco Serrano BARAJAS, Defendant and Appellant. |
Defendant Francisco Serrano Barajas appeals from a judgment of conviction sentencing him to prison. He was originally charged with one count of possessing narcotics (Health & Saf. Code § 11500) and one count of possessing restricted dangerous drugs (Health & Saf. Code § 11910). After denial of his motion to suppress evidence obtained under a search warrant, he entered a plea of guilty to possessing narcotics pursuant to a plea bargain in which the prosecution agreed to (1) dismiss the dangerous drug charge, and (2) remain silent at the time of sentencing. The first part of the bargain was kept, and the dangerous drug charge was dismissed; the prosecution violated its promise to remain silent at the time of sentencing.
On appeal Barajas contends:
1. The affidavit upon which the search warrant was issued was inadequate in that it did not allege the informants knew the appearance of heroin.
2. The sentencing hearing was unfair in that the district attorney violated his agreement to remain silent and the court relied upon allegations of unnamed informants.
On July 23, 1971, Barajas entered a plea of guilty to possession of narcotics. He, his attorney, and the deputy district attorney signed a change of plea form which provided in Paragraph 9:
'That he (Barajas) Has not been induced to plead guilty by any promise or representation of a lesser sentence, probation, reward, immunity, or anything else, except District Attorney will dismiss the remaining count & to remain silent at the time of sentence.' (The italicized words were inserted in the printed form in handwriting.)
Three probation and sentencing hearings were held after Barajas entered his guilty plea. On August 13, 1971, a brief hearing was held in which the court considered the original probation report. The report reviewed the defendant's past criminal record, indicated he was addicted to heroin and participating in a local Methadone treatment program, and recommended criminal proceedings be adjourned to determine whether he was a narcotic addict. Defendant's attorney made no objection to the recommendation, the deputy district attorney made no statements contrary to his agreement, the court suspended the criminal proceedings, and civil narcotic commitment proceedings were filed pursuant to Welfare and Institutions Code section 3051. Doctors were appointed to examine Barajas and a further hearing was scheduled for August 24, 1971.
On August 24, the court began the hearing with the remark:
'I notice that this man is found to be a drug dependent on heroin, but they don't recommend the transfer to CRC (California Rehabiliation Center) because he is not motivated for treatment.'
Moments later the following transpired:
'THE COURT: Oh, one case with two files I guess. We never run short of paper.
'All right, I suppose we ought to make a grant of probation under--for three years, Mr. District Attorney, under all the usual terms and conditions, plus the narcotic cases, plus the special condition that he continue on this Methadone program until released.
'MR. (Nicholas) KASIMATIS (The same deputy district attorney who signed the plea bargain.): Well, your Honor, there is some indication here that Mr. Barajas was dealing in heroin. There was a charge of his possessing a firearm which was also found at the time of his arrest.
A supplemental probation report was prepared for the continued hearing which was held on September 27, 1971. The report stated Barajas did not wish to go to CRC, but desired to continue with Methadone treatment under probation. It also contained damaging hearsay statements by an agent from the Bureau of Narcotics, based on information from unnamed informants, indicating Barajas had been, and still was, involved in selling heroin. While deeming it 'most unfortunate that the defendant is not motivated toward treatment at the CRC facility,' the probation officer recommended denial of probation and sentence to prison.
At the hearing, defendant's attorney strenuously objected to the hearsay statements in the probation report and requested the court to continue the hearing to 'get some testimony under oath on these allegations.' This time the deputy district attorney remained silent. The court sentenced Barajas to prison.
We reject the Attorney General's argument the deputy district attorney did not violate his agreement to remain silent at the time of sentencing. His volunteered remarks at the August 24 probation hearing, indicating Barajas was dealing in heroin and had firearms in his home at the time of his arrest, were calculated to, and in fact did, dissuade the court from carrying out its announced intention to place Barajas on probation. Far from being merely neutral and clarifying, the remarks were damaging and prejudicial to the defendant. While such statements by the district attorney might be proper at sentencing under ordinary circumstances, they cannot be squared with his earlier promise not to make them.
In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, Chief Justice Burger, writing for the court, commented on this aspect of plea bargaining:
(Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 499.)
The conduct of the deputy district attorney was not inadvertent. The deputy who made the agreement violated it. Nonetheless, we find no basis to reverse on the ground urged. The defendant is not entitled to the benefit of the trial court's originally announced intention to place him on probation merely because the prosecutor violated his promise. Where the prosecution repudiates its part of the plea bargain, the defendant's remedy is to move to withdraw his plea of guilty in the trial court. (People v. Delles, 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629; People v. Fratianno, 6 Cal.App.3d 211, 221, 85 Cal.Rptr. 755.) Unless he makes such a motion in the trial court, he is precluded from obtaining relief on appeal. (See People v. Massie, 66 Cal.2d 899, 910, 59 Cal.Rptr. 733, 428 P.2d 869.) Although Barajas had the time and opportunity to move to set aside his plea of guilty in the trial court, he did not do so. He has failed to preserve the issue, and we are precluded from granting relief on that basis.
In People v. Leonard, 25 Cal.App.3d 1131, 102 Cal.Rptr. 435, this court recently pointed out that narcotic commitment procedures instituted pursuant to Welfare and Institutions Code section 3051 may not simply be ignored. Contrary to the implication arising from the quoted statements made at the hearing on August 24, such proceedings are not merely an additional file or extra paper work, and they cannot be considered or ignored willy-nilly, irrespective of what has transpired.
The record on appeal indicates, and the superior court narcotic proceedings file (No. 43147) which we have ordered lodged confirms, the improper procedures followed in Leonard, supra, were also followed here. In this aspect, the cases are so strikingly similar that all we said in Leonard is applicable here.
The record shows without conflict: (1) the court...
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