People v. Kaanehe
| Decision Date | 17 February 1977 |
| Docket Number | Cr. 19644 |
| Citation | 19 Cal.3d 1,559 P.2d 1028,136 Cal.Rptr. 409 |
| Court | California Supreme Court |
| Parties | , 559 P.2d 1028 The PEOPLE, Plaintiff and Respondent, v. James K. KAANEHE, Defendant and Appellant. |
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Emry J. Allen, Deputy Attys. Gen., for plaintiff and respondent.
James K. Kaanehe appeals from a judgment entered upon negotiated pleas of guilty to one count of grand theft (Pen.Code, § 487) 1 and to one count of petty theft with a prior felony conviction (§§ 484, 667). Twelve additional counts charging similar crimes were dismissed in accordance with the plea bargain. The pleas were entered after the court denied defendant's motions to dismiss the indictment (§ 995) and to suppress evidence (§ 1538.5). 2
Defendant contends on appeal (1) that the trial court erred in failing to warn him of the effects of a guilty plea on his right to appeal; (2) that the trial court erred in refusing to postpone the trial date; (3) that records voluntarily surrendered to law enforcement officials by defendant's bank without aid of legal process should have been suppressed in accordance with Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590; and (4) that the trial court also erred in refusing to permit him to withdraw his guilty plea after the prosecution breached the plea bargain agreement. We conclude that the first two issues are not properly raised on appeal. We further conclude that the trial court was correct in denying the motion to suppress the bank records because we hold that Burrows is not to be applied retroactively. We conclude, however, that the prosecution breached the plea bargain agreement and that defendant is entitled to be rearraigned for sentencing, or, at his option, to withdraw his guilty pleas and to again be arraigned on all charges contained in the indictment other than the perjury charge. (See fn. 2.)
Defendant is the owner and operator of Arlington Memorial Cemetery in Sacramento. It was alleged that he induced eight persons to buy plots in the cemetery by promising that $26 of the purchase price of each plot would be deposited in a trust to provide for the care and upkeep of the cemetery and that defendant diverted that money to his own use. It was further alleged that defendant diverted to his own use the installment payments of three purchasers of cemetery plots and money paid for a grave marker which was never installed.
Howard Sihner, an investigator from the district attorney's office, contacted the bank that was the trustee of the trust fund for the general care of the cemetery and asked to see the records of that account. After refusing initially, the bank gave Sihner a summary of the records. This summary indicated that checks for $716 and $205, which constituted income disburse When arrested and confronted with the foregoing information, defendant consented to a search of his personal records and, at the same time, a warrant was issued authorizing such a search. Shortly thereafter, the grand jury subpoenaed the relevant records of the two banks and the car leasing agency.
[559 P.2d 1032] ments from the trust fund, had been endorsed by the defendant to a car leasing agency. Sihner was advised by that agency that the checks had been delivered by defendant in payment for his leased auto. Sihner also called three purchasers of cemetery plots who showed him checks made payable to Arlington which had been deposited in a second bank. That bank delivered to Sihner deposit slips showing that defendant had deposited these checks in his personal account.
Defendant initially entered pleas of not guilty to all counts charged in the indictment. Prior to the trial date, defendant moved for a continuance, which was denied. He then moved pursuant to section 1538.5 to suppress the documents obtained during the search of his own records and those obtained from the two banks and the leasing agency. The motion was denied and the plea bargain agreement was then arranged. According to its terms, defendant would plead guilty to one count of grand theft and one count of petty theft with a prior felony conviction. The remaining counts would be dismissed and the prosecutor would relinquish his right to make a recommendation to the judge regarding disposition, but would reserve the right to correct any factual errors in the presentence report.
The probation officer recommended in his report to the court that defendant be given a suspended sentence to state prison, be placed on probation, serve a year in the county jail, and be ordered to make restitution. Defendant was then referred to the Department of Corrections for diagnostic study pursuant to section 1203.03. Following that study, the department recommended that defendant receive a suspended sentence, make restitution, and be confined for a period of time in a local jail. When formally arraigned for sentencing, defendant moved to withdraw his plea of guilty on the ground that the prosecutor had breached the plea bargain by stating in a letter that was mailed to both the Department of Corrections and the court that the prosecutor believed defendant should not be granted probation. The court denied probation and setenced defendant to the state prison for the term prescribed by law, the sentences for the two counts to run concurrently.
We must determine at the outset which, if any, of the issues raised are properly congnizable on appeal. Section 1237.5 provides that an appeal may be taken after a plea of guilty only if the defendant obtains from the trial court a certificate of probable cause. 3 Defendant here did not do so, and we must therefore determine whether the errors alleged come within recognized exceptions to the requirement of section 1237.5.
The search and seizure issues may obviously be raised on this appeal. It has been held that section 1538.5, subdivision (m), which provides that search and seizure issues may be raised on appeal after a plea of guilty, constitutes an exception to section 1237.5. (People v. Rose (1968)267 Cal.App.2d 648, 73 Cal.Rptr. 349.) Rule 31(d) of the California Rules of Court now expressly recognizes this exception. 4
We have also held that section 1237.5 does not apply where a defendant does not challenge the original validity of the plea but asserts that errors were committed in proceedings subsequent to the plea for the purpose of determining the penalty to be imposed. (People v. Ward (1967) 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881; People v. Delles (1968) 69 Cal.2d 906, 909, 73 Cal.Rptr. 10, 447 P.2d 106.) This exception is not also expressly recognized in rule 31(d). Because the alleged breach of the plea bargain by the prosecutor occurred after entry of the plea and because it pertains only to sentencing, this claim comes within this exception. (In re Harrell (1970) 2 Cal.3d 675, 705--706, 87 Cal.Rptr. 504, 470 P.2d 640; People v. Delles, supra, 69 Cal.2d 906, 909, 73 Cal.Rptr. 10, 447 P.2d 106.)
The alleged failure to warn defendant of the effect of a plea of guilty on his right of appeal and the refusal to grant a continuance, however, are clearly matters occurring before the entry of the plea and affecting the validity of the plea. We have previously rejected the proposition that denial of a motion to withdraw a plea of guilty may always be appealed without a certificate of probable cause because it always occurs after the entry of the plea. The determinative factor is when the claims upon which the motion was based arose and not when the motion to withdraw was denied. (People v. Ribero (1971) 4 Cal.3d 55, 63--64, 92 Cal.Rptr. 692, 480 P.2d 308.) Because no certificate of probable cause was obtained, these two issues may not be raised on this appeal.
Furthermore, the alleged error in the refusal to grant a continuance could not have been raised even if defendant had obtained a certificate of probable cause, because it was waived by the plea of guilty. Other than search and seizure issues which are specifically made reviewable by section 1538.5, subdivision (m), all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea. (See People v. Ribero, supra, 4 Cal.3d 55, 63, 92 Cal.Rptr. 692, 480 P.2d 308, and cases cited therein.) Any error in the refusal to postpone the trial here clearly does not rise to such proportions. 5 Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty. (People v. Massey (1976) 59 Cal.App.3d 777, 130 Cal.Rptr. 581.) As noted previously, section 1237.5 does not affect the grounds upon which appeal may be taken following a guilty plea; it merely establishes a procedure for screening out frivolous claims among these issues which have not been waived. (People v. Ribero, supra, 4 Cal.3d 55, 63, 92 Cal.Rptr. 692, 480 P.2d 308; In re Brown (1973) 9 Cal.3d 679, 683, 108 Cal.Rptr. 801, 511 P.2d 1153.)
Defendant argues that the surrender of his bank records to law enforcement officers without his knowledge or consent constituted an unreasonable search and seizure. He relies upon Burrows v. Superior Court, supra, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, in which we held that a depositor has a reasonable expectation that his bank will maintain the confidentiality of records which originate with him, and that the bank's voluntary surrender of such records to the police without the aid of any Whether a judicial decision establishing new constitutional standards is to be given retroactive effect is customarily determined by weighing the following...
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