People v. Calloway

• Decision Date: 04 August 1980
• Docket Number: C,Cr. 37038
• Citation: 166 Cal.Rptr. 897,108 Cal.App.3d 917
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie CALLOWAY, Defendant and Appellant. In re Willie Calloway, on Habeas Corpus. r. 37113.

Page 897

166 Cal.Rptr. 897

108 Cal.App.3d 917

The PEOPLE, Plaintiff and Respondent, v. Willie CALLOWAY, Defendant and Appellant In re Willie Calloway, on Habeas Corpus.

Cr. 37038, Cr. 37113.

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

Aug. 4, 1980.

Quin Denvir, State Public Defender, and Therene Kay Powell, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Richard D. Marino, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, ^* Acting Presiding Justice.

Willie Calloway appeals from a November 21, 1979, judgment of the Superior Court of the State of California for the County of Los Angeles sentencing him to state prison. He also seeks a writ of habeas corpus to require the superior court to set aside this judgment. Relief is sought on the ground that he was unlawfully sentenced to state prison by Judge Robert H. London in contravention of a plea bargain previously approved by Judge London at Calloway's formal probation revocation hearing on August 9, 1979.

The record reveals that Calloway, while on probation, was charged with violation of Penal Code section 273a, subdivision (1) (willful cruelty to a child). The plea bargain specified that, in return for his admission that he had violated the terms of his probation, he was to be committed to the Department of Corrections for a diagnostic study, but, upon his return to court after such study, he was not to be sentenced to state prison.

The Attorney General concedes that the plea bargain as made was not kept by Judge London, presumably because Judge London concluded, upon receipt of information about Calloway from the Los Angeles County Probation Department and the State of California Department of Corrections during the interim between the revocation and sentencing hearings, that, because of his propensity for violence, Calloway was a danger to the community and not amenable to any of the alternative forms of treatment and/or discipline available; hence the state prison sentence.

Since the Attorney General concedes breach of the plea bargain, the only issue before us is the precise nature of the relief which should now be afforded Calloway, taking into account the attendant circumstances. At the time we issued the alternative writ in this matter on May 14, 1980, Calloway was serving the state prison sentence with the earliest possible release date of July 14, 1980; since issuance of the writ, Calloway has been released on bail. The bail release date was on May 27, 1980.

The Attorney General contends that the only relief to which petitioner should be entitled is to return the matter to the status quo ante in existence prior to the making of the plea bargain. As we understand the Attorney General's position, the appropriate resolution of this matter would be to order Judge London to vacate the state prison sentence and give Calloway the opportunity to either withdraw his admission to the probation violation or accept the prior state prison sentence. If Calloway decided to withdraw his admission of probation violation, presumably, proceedings would commence anew, with the possibility that, if the probation violation were found to have occurred, a new sentence could be imposed that involved a state prison incarceration of Calloway if, in the judge's discretion, such was warranted.

For this position, the Attorney General relies upon the procedures concerning plea bargains established by Penal Code section 1192.5. ¹ It is claimed that such a result upon remand would not violate the spirit of the plea bargain, because the only thing Judge London promised was that he would not send Calloway to state prison.

Calloway contends that not only should the state prison sentence be vacated and by a judge other than Judge London but that the sentence ultimately imposed should be consistent with the plea bargain originally made. In essence, Calloway asks for specific performance of the plea bargain.

As we read the record, one question presented is the following: would it be consistent with the plea bargain, when the cause is remanded, for Calloway to be subject to further incarceration other than in state prison, if the judge resentencing him exercised his discretion in that fashion? The issue presented is whether such a result would be fair under the circumstances.

Both Calloway and the Attorney General rely, for their disparate positions, on certain language concerning the specific performance of plea bargains contained in People v. Kaanehe (1977) 19 Cal.3d 1, 136 Cal.Rptr 409, 559 P.2d 1028. In Kaanehe, it was the prosecution who desired specific performance of the plea bargain. Rejecting that request, the California Supreme Court explained that "(s)pecific enforcement of a plea bargain agreement is actually a broad term covering several different types of relief. The remedy differs depending upon the nature of the breach and which party is seeking specific enforcement. When the breach is a refusal by the prosecutor to comply with the agreement, specific enforcement would consist of an order directing the prosecutor to fulfill the bargain. When the breach is a refusal by the court to sentence in accord with the agreed upon recommendation, specific enforcement would entail an order directing the judge to resentence the defendant in accord with the agreement. The People as well as a defendant may seek such specific enforcements. The effect is to limit the remedy to an order directing fulfillment of the bargain." (Kaanehe, supra, 19 Cal.3d 1, 13, 136 Cal.Rptr. 409, 417, 559 P.2d 1028, 1036.)

The Kaanehe court also makes the observation that "(w)e have previously held 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. . . . 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. (Fn. omitted.)" (Id. at pp. 13-14, 136 Cal.Rptr. at pp. 417-18, 559 P.2d at pp. 1036-37.)

It is of considerable significance, however, that the Kaanehe court did not address itself to the situation where the trial court itself limited its discretionary power, and then changed its mind. This latter situation is that presented in the case at bench.

Kaanehe emphasizes that a controlling consideration in fashioning a remedy for a broken plea bargain is the existence of a substantial possibility that a proposed remedy will not completely repair the harm caused by the breach. This is the factor in the case at bench, where the disposition proposed by the Attorney General would not repair the harm done; Calloway has served some six or seven months in state prison, a place to which the promise was made that he would not be sent.

Further illumination of the issue before us is provided by People v. Collins (1978) 21 Cal.3d 208, 145 Cal.Rptr. 686, 577 P.2d 1026, in which the People sought relief in the wake of a broken plea bargain. Here, circumstances had occasioned the breach. Defendant, facing a multi-count information, had been allowed to plead to one charge while many others were dismissed. It developed that the one charge concerned an act no longer deemed a criminal offense, and defendant's conviction was accordingly reversed. At issue was whether the People could seek reinstatement of the charges which had been dismissed pursuant to the plea bargain originally made.

It was stated in Collins that "(c)ritical to plea bargaining is the concept of reciprocal benefits. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made. . . . The question to be decided, then, is whether the prosecution has been deprived of the benefit of its bargain by the relief granted herein. . . . The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant's vulnerability to a term of punishment. . . ." (Id. at pp. 214-215, 145 Cal.Rptr. at pp. 689-90, 577 P.2d at pp. 1029-30.) (Emphasis added.) In Collins, the court concluded that the prosecution was entitled to seek reinstatement of the charges dismissed.

The analysis presented in Collins is helpful to us in resolving the problem presented in the case at bench. Here the prosecution not only got what it bargained for, but more; it got what it bargained for in obtaining Calloway's admission of a probation violation; it got more than it bargained for in the court's state prison sentence a sentence which Calloway has now served for some months. Calloway, on the other hand, has received the worst of it; his admission of a probation violation was used to obtain the result he bargained to avoid. Under the particular circumstances presented in the case before us, we conclude that the only fair and equitable solution is to vacate and set aside the state prison sentence and allow Calloway, defendant and petitioner herein, to withdraw his admission of probation violation and have a contested hearing on this issue if he so desires. If Calloway decides he does not wish to withdraw his admission of a probation violation, the trial court must carry out the plea bargain and impose a nonprison sentence. If the sentence imposed includes a county jail sentence, Calloway shall be entitled to credit for the unlawful time he was required to serve in state prison in addition to any other custody credits to which he would otherwise be entitled.

We are also mindful of the observation made in Kaanehe that, upon remand, "(f)urther proceedings should, of course, be had before a judge other than the judge who...