People v. Catalano

• Decision Date: 02 August 1971
• Docket Number: Cr. 18653
• Citation: 96 Cal.Rptr. 349,19 Cal.App.3d 83
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Anthony CATALANO, Defendant and Appellant.

Page 349

96 Cal.Rptr. 349

19 Cal.App.3d 83

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Anthony CATALANO, Defendant and Appellant.

Cr. 18653.

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

Aug. 2, 1971.

Rehearing Denied Aug. 25, 1971.

Hearing Denied Oct. 6, 1971.

Helen E. Simmons, Inglewood, for appellant under appointment by the Court of Appeal.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Larry C. King, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

A consolidated information charged defendant with grand theft, two counts of robbery and one count of attempted robbery, and alleged a prior felony conviction (robbery). Defendant withdrew his plea of not guilty to robbery (count IV) and pleaded guilty thereto. The allegations of the prior felony and of being armed at the time of the commission of the offense were stricken; the court found the robbery to be second degree; the remaining three counts of the information were dismissed. Defendant appeals from judgment of conviction. He raises two issues--whether his plea of guilty was induced by unkept promises of the court and prosecutor, and whether there was a voluntary and intelligent waiver of his rights to a jury trial, confrontation of witnesses and protection against self-incrimination.

As to the plea of guilty, (1) all promises were complied with, (2) referral to Department 95 was not a major inducement because defendant knew that his criminal background would probably cause his exclusion from CRC and (3) defendant ultimately waived the promise of referral to Department 95. As an obvious result of prior dealings between defense counsel and the prosecutor and discussions between defendant and his counsel a bargain was made for defendant's plea of guilty to count IV (robbery) the basis of which was fully disclosed in open court and incorporated in the record; and while People v. West, 3 Cal.3d 595, ¹ 91 Cal.Rptr. 385, 477 P.2d 409, had not yet been decided, the trial judge carefully made for the record a lengthy and detailed account of the terms of the plea bargain. (People v. West, 3 Cal.3d 595, 610, 91 Cal.Rptr. 385, 477 P.2d 409.) In exchange for his plea of guilty it was represented to defendant that the allegations that he had previously been convicted of robbery, and that at the time of the within offense he was armed with a knife and revolver would be stricken; that he would 'at the time of the probation and sentence (be) referred to Department 95 under Welfare and Institutions Code 3051 to determine whether he is an addict or in danger of becoming a narcotic addict and whether or not he is otherwise eligible for the program at the California Rehabilitation Center,' with the understanding that no promise was made that he would be accepted by Department 95 or referred by it to CRC, and if rejected by Department 95 he would be returned to the trial court for sentence; and that the remaining three counts would be dismissed. The record shows that all of the foregoing were complied with and, in addition, that the judge fixed the degree of the robbery at second degree.

When defense counsel advised the court that defendant desired to plead to robbery (count IV), at the outset he established the basis of the plea bargain; among other things he stated '* * * the only promise that has been made to the defendant with respect to the manner of the disposition of the count he has pled ² guilty to is that he will be, at the time of the probation and sentence, Referred to Department 95 under Welfare and Institutions Code 3051, to determine whether he is an addict or in danger of becoming a narcotics addict and whether or not he is otherwise eligible for the program at the California Rehabilitation Center. Otherwise no promises have been made; particularly, no promise has been made that he will be accepted by Department 95 and referred to the California Rehabilitation Center.

'The defendant understands this, that if he is rejected by Department 95, he will be returned to this Court for sentence and that has been explained to the defendant by myself and he understands that the People was not he would be returned for sentence, will strike the armed allegation.' Asked if the foregoing was correct, defendant replied in the affirmative; thereafter both the prosecutor and the judge explained to him what the promise entailed. When the prosecutor proceeded to take defendant's plea and asked him if he understood that he was being referred to Department 95 but may not be accepted by it and if he was nto he would be returned for sentence, defendant replied in the affirmative. The judge explained that CRC has certain exclusionary criteria and it may decide he is not suitable, 'and of course all we are going to do is send you to 95, Department 95, and whether or not there will be a referral (to CRC), we do not know. They'll take into consideration the type of crime that you plead guilty to and they'll go into your history and see if you have had any behavior problems that they feel cannot be corrected and if you have to be watched all the time, they don't want to be bothered with you down there. You see, its not as easy to get in there as one would think so no one is guaranteeing you anything with the exception that you are going to go down to Department 95 and they are going to examine you and talk with you.'

Three weeks later, at the request of defendant the judge fixed the degree of the robbery at second degree, then commented 'that the probation report indicates that the defendant may be addicted to the use of narcotics or in imminent danger thereof. However, the record further indicates the defendant has suffered numerous arrests and the Court finds that because of defendant's prior record of criminality, he does not constitute a fit subject for commitment pursuant to Welfare and Institutions Code Section 3051.' Upon being reminded that he had promised to refer defendant to Department 95, the judge accordingly made an order referring him thereto--'it does appear that the defendant may be addicted or by repeated use of narcotics may be in imminent danger of becoming addicted to narcotics.

'The Court doesn't make a finding as to whether he is legally eligible but the criminal proceedings will be adjourned and imposition of sentence is suspended and the matter is referred to Department 95 for hearing to determine if the defendant is a narcotics addict or in imminent danger of becoming addicted to narcotics by reason of the repeated use. They can make the determination, whether or not he is legally eligible, too.' (Emphasis added.)

Three weeks later the cause was returned from Department 95 with a statement from the district attorney that '(I)n order for (defendant) to be eligible pursuant to 3051, we must request a signed waiver pursuant to section 3052, Welfare and Institutions Code.' However, the judge advised defendant that 'it was understood that there wasn't going to be any statement by the Court or any stipulation by the District Attorney and all I can do * * * is, I think we should send this back (to Department 95) so he does have a hearing of some kind down there. * * *' Defendant and his counsel agreed, however, defendant said, 'Well, if they don't sign that thing, then they're not going to take me again.' Upon being advised by the prosecutor that he would not agree to any waiver, the judge responded 'that was all explained to the defendant when we first suspended proceedings.' After a brief conference between defendant and his counsel the latter told the judge that defendant was desirous of having sentence imposed. When defendant was arraigned for judgment the court again detailed the terms of the plea bargain and all of the proceedings previously had, and carefully advised him that if he was dissatisfied he should ask to withdraw his plea of guilty. ³ To this, defense counsel replied that 'defendant is somewhat discouraged by the long stay in the county jail * * * but I think that the Court can appreciate the discouragement and the belief in the eventual--that is, I think we can recognize that probably he will be excluded even if he were referred to the C.R.C. program because of the nature of the offense. * * * That is the defendant's position. He has not stated to me that he wishes to withdraw his plea. * * * he desires that the Court pass sentence so that--some determination, something is done to get him out of the downtown county jail facility.' Thereupon probation was denied and defendant was sentenced to the state prison.

Appellant's argument that the judge and the prosecutor were aware that a waiver was required by section 3051, Welfare and Institutions Code, and they should have executed the same, is beside the point. The only promise made to him relative to disposition of count IV, as set up in the record by defendant himself before he withdrew his plea of not guilty and entered his guilty plea, was that he would be referred to Department 95 for a determination (1) whether he is an addict or in danger of becoming a narcotics addict, and (2) whether he is otherwise eligible for the CRC program. Clearly this promise included no waiver and no finding of eligibility by the trial judge, only a referral to Department 95 to determine whether he is an addict and otherwise eligible; the fact that Department 95 elected not to make the determination does not support a finding that the district attorney and the judge failed to comply with their part of the bargain. Neither a finding of defendant's legal eligibility for the CRC program by the trial judge nor execution of a waiver to qualify him for commitment was contemplated by anyone, including defendant. Everyone knew that defendant had a history of substantial criminality which would preclude any reasonable expectation of acceptance by Department 95; this was conceded by defense counsel when he told the court defend...