People v. Cruz

• Decision Date: 21 April 1988
• Docket Number: No. 26142,26142
• Citation: 752 P.2d 439,44 Cal.3d 1247,246 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 752 P.2d 439 The PEOPLE, Plaintiff and Respondent, v. Frank A. CRUZ, Defendant and Appellant. Crim.

Page 1

246 Cal.Rptr. 1

44 Cal.3d 1247, 752 P.2d 439

The PEOPLE, Plaintiff and Respondent, v. Frank A. CRUZ, Defendant and Appellant.

Crim. No. 26142.

Supreme Court of California.

April 21, 1988.

[44 Cal.3d 1248] Thomas T. Ono, Morinaka, Horikana, Ono and Yamamoto, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert R. Anderson and Donald E. De Nicola, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

Penal Code section 1192.5 provides that a defendant who pleads guilty pursuant to a plea bargain which is subsequently disapproved by the trial court shall be permitted to withdraw the plea if he or she so desires. The issue before us is whether this provision applies when the trial court withdraws its approval because the defendant fails to appear for sentencing. We conclude that the statute applies even to the fleeing defendant, against whom separate sanctions are available under Penal Code sections 1320 and 1320.5.

FACTS

In May 1985, defendant pled guilty to felony possession of heroin (Health & Saf.Code, § 11350, subd. (a)) pursuant to a plea bargain. Sentencing was set for June, and defendant was released on bail. He failed to appear for sentencing, and a bench warrant issued. He was apprehended the following January and finally sentenced in February 1986.

Under the plea bargain, defendant was to receive a maximum five years' probation and up to the "county lid" of one year in county jail, or the "low base" sentence of sixteen months in state prison without probation, at defendant's option. In addition, a second count against him, being under the influence of an opiate (Health & Saf. Code, § 11550, former subd. (a)), a misdemeanor, was to be dismissed. At defendant's sentencing hearing in February 1986, the trial court announced its intention not to abide by the plea bargain. Defendant moved to withdraw his guilty plea. The court denied the motion and sentenced defendant

to two years in state prison with credit for presentence custody, dismissing the misdemeanor count on a motion by the [752 P.2d 440] prosecution. The Court of Appeal affirmed.

DISCUSSION

Plea bargaining is an accepted practice in our criminal ustice system. (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, 859-860, 187 Cal.Rptr. 441, 654 [44 Cal.3d 1250] P.2d 211.) The Legislature has endorsed it in Penal Code section 1192.5, ¹ which provides for the entry of a plea of guilty or nolo contendere specifying both the punishment to be imposed and the exercise of other powers legally available to the sentencing court. Upon the acceptance of such a plea by the prosecution and its approval by the court, the statute provides that the court may not impose "a punishment more severe than that specified in the plea ... [nor] proceed as to such plea other than as specified in the plea." Before the plea is entered, the court also must inform the defendant "that (1) its approval is not binding, (2) it may ... withdraw its approval in the light of further consideration of the matter, and (3) in such case the defendant shall be permitted to withdraw his plea if he desires to do so.... [p] If such plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn, and the defendant may then enter such plea or pleas as would otherwise have been available." (Italics added.)

Various Court of Appeal opinions have held that a defendant who fails to appear for sentencing under a plea bargain does not lose the protections of section 1192.5, and must be allowed to withdraw his or her guilty plea should the court refuse to adhere to the original sentencing terms. (People v. Morris (1979) 97 Cal.App.3d 358, 158 Cal.Rptr. 722; People v. Barrero (1985) 163 Cal.App.3d 1080, 210 Cal.Rptr. 70; In re Falco (1986) 176 Cal.App.3d 1161, 222 Cal.Rptr. 648; In re Lunceford (1987) 191 Cal.App.3d 180, 236 Cal.Rptr. 274; People v. Rodriguez (1987) 191 Cal.App.3d 1566, 237 Cal.Rptr. 137; see also People v. Johnson (1974) 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 P.2d 604.) The Court of Appeal in the instant case, however, relied on its own decision in People v. Santos (1985) 171 Cal.App.3d 67, 70, 216 Cal.Rptr. 911 and held that by his failure to appear for sentencing defendant "breached the bargain ... [and] is not entitled to either specific enforcement of that bargain or withdrawal of his guilty plea." ²

In Johnson, supra, 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 P.2d 604, this court considered the application of section 1192.5 to the case of a defendant who had been sentenced to state prison contrary to the terms of his plea bargain after the trial court discovered that he had concealed from it his true name and past criminal record. Citing the statute's provision that, where not approved by the court, "the plea shall be deemed withdrawn and the defendant [permitted to] enter [any otherwise available plea,]" we observed that "[a]lthough this provision by its terms appears to apply to the initial rejection of a defendant's offer for a plea bargain, rather than to the court's withdrawal of its prior approval of such a bargain, nevertheless this language confirms our view that the Legislature intended that in either situation defendant be given the opportunity to change his plea." (10 Cal.3d at p. 872, 112 Cal.Rptr. 556, 519 P.2d 604.) Furthermore, we found that the defendant's "unclean hands" were "irrelevant in determining whether, once the court has ... repudiated the bargain, [defendant] should be permitted to withdraw his plea. Section 1192.5 makes no exception for defendants who have committed fraud in negotiating a plea bargain; that section applies with equal force to all defendants who attempt to bargain away their constitutional rights in the hope of receiving leniency." (Id. at pp. 872-873, 112 Cal.Rptr. 556, 519 P.2d 604 .)

In Morris, supra, 97 Cal.App.3d 358, 158 Cal.Rptr. 722, the Court of Appeal extended this reasoning to the case of a plea-bargaining defendant who failed to appear for sentencing. The defendant in Morris pled guilty to two counts of aggravated assault in exchange for the dismissal of three additional counts and a use allegation and a commitment by the trial court not to sentence him to state prison. After approving the plea bargain, the trial court announced that if the defendant should fail to appear for sentencing it would impose a state prison sentence after all. The defendant consented to this arrangement, and then failed to appear. When finally brought before the court two months later, he was sentenced to state prison, as he had been warned he would, and was not permitted to withdraw his guilty plea. The Court of Appeal reversed, holding that the summary sentence to state prison, though purportedly the result of a separate condition imposed as an "incentive" to defendant not to violate the terms of his release on his own recognizance, was in effect a disapproval of the plea bargain. It noted that when the trial court approved the plea bargain, it failed to instruct the defendant according to the terms of section 1192.5. (See ante, p. 2.) Under such circumstances, the court found even the defendant's "acceptance" of the trial court's terms did not make them a part of the bargain under the statute. (97 Cal.App.3d at p. 364, fn. 7, 158 Cal.Rptr. 722.)

In Barrero, supra, 163 Cal.App.3d 1080, 210 Cal.Rptr. 70, the defendant pled guilty to joyriding in exchange for a promise he would receive the low term of 16 months in state prison. The trial court accepted the plea, then told him that he had both to go to the probation department and to appear for sentencing, that if he failed to do either the court might impose up to three years and that there would be no backing out of the plea bargain. He failed to appear, and received the upper term of three years, and, as warned, was not permitted to withdraw his guilty plea. The Court of Appeal reversed, citing Morris, supra, 97 Cal.App.3d 358, 158 Cal.Rptr. 722. The People attempted to distinguish the two cases, arguing that the possibility of a higher sentence had been included in Barrero's plea bargain whereas Morris's sentence had been separately conditioned outside the bargain. The court rejected this distinction and found that, inasmuch as Barrero like Morris had not received the required section 1192.5 instructions, he could not be deemed to have bargained away his right to withdraw his guilty plea. (163 Cal.App.3d at p. 1085, 210 Cal.Rptr. 70.)

In re Falco, supra, 176 Cal.App.3d 1161, 222 Cal.Rptr. 648, involved four habeas corpus petitioners who pled guilty to drug possession in exchange for probation with 90 days in county jail or a work alternative program (SWAP) at their option. After failing to appear for sentencing, they received 90 days without the SWAP option, and some received additional jail time. Petitioners in that case did receive section 1192.5 instructions at the time of their bargains, but the trial court relied on Santos, supra, 171 Cal.App.3d 67, 216 Cal.Rptr. 911, to deny them the opportunity to withdraw their guilty pleas. The Court of Appeal reversed per Morris, supra, 97 Cal.App.3d 358, 158 Cal.Rptr. 722, and Barrero, supra, 163 Cal.App.3d 1080, 210 Cal.Rptr. 70, calling the implementation of a revised plea bargain a "[summary sentence] ... without benefit of minimum procedural and statutory safeguards[,]" and "a palpable abuse of discretion." (176 Cal.App.3d at p. 1166, 222 Cal.Rptr. 648.)

Like Santos, supra, 171 Cal.App.3d 67, 216 Cal.Rptr. 911, on which it relies, the opinion below acknowledges neither Johnson supra, 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 P.2d 604, nor the Morris line of cases, supra. Rather, it employs Santos 's reasoning that since the law requires a trial court to pronounce judgment and impose sentence...