People v. Barrero

• Decision Date: 23 January 1985
• Docket Number: No. B003903,B003903
• Citation: 163 Cal.App.3d 1080,210 Cal.Rptr. 70
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Patrick BARRERO, Defendant and Appellant.

Page 70

210 Cal.Rptr. 70

163 Cal.App.3d 1080

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Patrick BARRERO, Defendant and Appellant.

No. B003903.

Court of Appeal, Second District, Division 7, California.

Jan. 23, 1985.

As Modified February 22, 1985.

Mary J. Madsen, Camarillo, under appointment by the Court of Appeal, for defendant and appellant.

Frank O. Bell, Jr. State Public Defender, and Jonathan B. Steiner, Chief Ass. State Public Defender under the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Susanne C. Wylie and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.

HARRIS, Associate Justice ^**.

Appellant pled guilty to felony joyriding in violation of section 10851 of the Vehicle Code and was sentenced to the upper term of three years. His motion for modification of sentence was denied, and this appeal based solely on errors in sentencing followed.

The question presented is whether a trial court may as a part of a negotiated plea impose a condition that defendant's non-appearance at subsequent proceedings will relieve the court of the bargain but not the defendant of his guilty plea.

The facts are best summarized by the trial court:

"Let me review the sorry state of this case. On May the 18th, 1983, the defendant, then represented by Mr. Gerson of the Public Defender's Office, entered a plea of guilty for felony joyriding. There was an agreement made at that time that he would receive the low term in prison, which was 16 months. The defendant was told that he had to go to the Probation Department, and that he had to come back to court for sentence, and I would put him on bail and he was told if he failed to do either one or both of those, then when we got him back here if the Court thought it was warranted, he would receive either two or three years in prison, but he would not be allowed to back out of the plea bargain.

"The probation and sentence hearing was set for June the 22nd. On June the 22nd, the defendant did appear in court, but the Probation Department indicated he had never been to the Probation Department and having failed to apply for probation. I listened to whatever his excuses were at the time, and then set the matter for July the 26th so he could be interviewed. I allowed him to remain out on bail, and that's the last anybody saw of him until he was picked up on the warrant that I issued on the 26th.

"I have read and considered all of the probation reports, the original on July the 26th and the supplemental report. I do not feel I can in good conscience stick to the plea bargain. Defendant will receive something more harsh than the low term. I will be glad to listen to your comments."

Appellant contends that he is entitled to the 16 month bargain that he made or, alternatively, that he should have been allowed to withdraw his guilty plea. Appellant acknowledges that in People v. Calloway (1981) 29 Cal.3d 666, 671, 175 Cal.Rptr. 596, 631 P.2d 30, the Supreme Court reaffirmed its earlier statement that "absent very special circumstances" plea bargains will not be enforced "against the trial court" which remains free, even after initial approval, to finally reject a bargain. The special circumstances urged here are that a new trial will necessitate expenditures of time and money, and that "the beleaguered taxpayer" should not be subjected to such unnecessary expense. We do not believe these are the circumstances that the Supreme Court had in mind.

Appellant's contention that he should have been allowed to withdraw his guilty plea if he was not to receive the bargain for low term is raised for the first time on appeal. In fact, appellant's counsel at the sentencing hearing argued for the mid-term without ever requesting the opportunity to withdraw the guilty plea. ¹ Nevertheless, we shall consider appellant's contention.

In People v. Morris (1979) 97 Cal.App.3d 358, 158 Cal.Rptr. 722, defendant was charged with five counts of aggravated assault, including use of a firearm in the commission of the offenses. He pled guilty to two counts pursuant to a negotiated plea bargain announced in open court under the terms of which the remaining counts and use allegation were to be dismissed, and no actual state prison sentence was to be imposed. The defendant was released on his own recognizance pending formal sentencing, but only after the trial judge imposed a state prison sentence, with execution stayed, for the sole purpose of assuring defendant's appearance. Defendant failed to appear for sentencing and was subsequently apprehended. At his ultimate sentencing hearing, defendant requested that he be allowed to withdraw his plea of guilty if the court intended to follow a diagnostic evaluation report recommending a state prison sentence. Defendant's request was denied, and he was remanded into custody for the purpose of carrying out the previously imposed state prison sentence.

On appeal, the judgment was reversed. The Appellate Court stated that the summary sentencing procedure was in open conflict with established procedural requirements, pointing to Penal Code section 1203 mandating a probation presentence report and recommendation, where defendant is otherwise eligible, and Penal Code section 1200 requiring arraignment for judgment. The court further stated at page 364, 158 Cal.Rptr. 722 that: "... a defendant who thereafter fails to appear [after O.R. release] without justification is subject to punishment upon conviction of the separate offense of a willful failure to appear (see Pen.Code, § 1319.4) in an action brought at the discretion of the prosecutor, not by peremptory judicial fiat."

Respondent distinguishes Morris on the ground that the trial court here did not actually impose the upper term at the time of plea, and that the possibility of appellant receiving a higher term was merely made part of the bargain. Respondent urges that where, as here, appellant had not yet entered his plea, and the bargain was still subject to negotiation, if neither the prosecutor nor the defendant objected to the condition imposed by the court, the unopposed condition should be considered part of the bargain.

Respondent argues that this case more closely resembles People v. Caron (1981) 115 Cal.App.3d 236, 171 Cal.Rptr. 203, than it does Morris. In Caron, the defendant pled guilty to...