People v. Morris

• Decision Date: 28 September 1979
• Docket Number: Cr. 18153
• Citation: 97 Cal.App.3d 358,158 Cal.Rptr. 722
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Bonnie Ray MORRIS, Defendant and Appellant.

Page 722

158 Cal.Rptr. 722

97 Cal.App.3d 358

PEOPLE of the State of California, Plaintiff and Respondent, v. Bonnie Ray MORRIS, Defendant and Appellant.

Cr. 18153.

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

Sept. 28, 1979.

Ronald D. Shannon, Santa Cruz, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

RACANELLI, Presiding Justice.

On defendant's appeal challenging the validity of a state prison sentence imposed pursuant to the purported terms of a negotiated plea agreement, we examine the novel question whether a trial court may properly condition a prison sentence based solely upon a defendant's failure to appear at the time regularly set for imposition of sentence. We conclude that such an extraordinary practice is invalid as a matter of law. We reverse and remand.

The relevant facts follow:

Defendant, then 19 years of age, was charged by information with five counts of aggravated assault (Pen.Code, § 245(a), including use of a firearm in the commission of the offenses (Pen.Code, § 12022.5). On July 15, 1977, defendant pled guilty to counts 1 and 2, pursuant to a negotiated plea bargain announced in open court under the terms of which the remaining counts and use clause were to be dismissed, and no actual state prison sentence was to be imposed. The trial judge then announced his intention to summarily impose a state prison sentence with execution stayed for the sole purpose of assuring defendant's appearance upon his being released on his own recognizance (O. R.) pending formal sentencing. ¹

After defendant indicated his understanding and willingness to waive "all of the important constitutional rights . . . set forth in this form" (a procedure questionable at best under applicable Boykin-Tahl requirements), ² the trial judge accepted defendant's plea of guilty to the designated counts and took the People's motion to dismiss the remaining charges under submission until the time set for sentencing. After the defendant provided assurances of his ability to make bail on the other pending charges, the trial judge then imposed a prison sentence in conjunction with the O. R. release. ³ In the course of a number of continuances to permit the defendant to process a work-furlough application (see Pen.Code, § 1208), the same trial judge, on August 24, 1977, again granted the defendant an O. R. release subject, however, to execution of a written promise to appear (see Pen.Code, §§ 1318-1318.4) superimposed on the damoclean penalty earlier prophesied in the event of nonappearance. Thereafter, defendant failed to appear on the newly scheduled October sentencing date and was subsequently apprehended in December. At the outset of formal sentencing proceedings on March 20, 1978, defendant expressed his desire to withdraw his plea of guilty if the court intended to follow a diagnostic evaluation report recommending a state prison sentence; that request was expressly denied in the order remanding defendant into custody for purpose of carrying out the previously-imposed prison sentence. ⁴

I

It is of course axiomatic that when a plea bargain is made the defendant is entitled to withdraw his plea if the negotiated bargain is incapable of actual fulfillment. (See Pen.Code, § 1192.5; People v. Kaanehe (1977) 19 Cal.3d 1, 13-15, 136 Cal.Rptr. 409, 559 P.2d 1028; People v. Johnson (1974) 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 P.2d 604; People v. Flores (1971) 6 Cal.3d 305, 308-309, 98 Cal.Rptr. 822, 491 P.2d 406; People v. Preciado (1978) 78 Cal.App.3d 144, 144 Cal.Rptr. 102; People v. Pinon (1973) 35 Cal.App.3d 120, 125, 110 Cal.Rptr. 406.) Under the provisions of the authorizing statute, once the plea specifying the punishment is accepted by the prosecutor and approved by the court, the defendant cannot be sentenced on such plea "to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea." (Pen.Code, § 1192.5.) Moreover, the statute expressly requires that in approving such plea, the court must inform the defendant of the conditional nature of its approval and defendant's right to withdraw his guilty plea in the event such approval is ultimately withdrawn. ⁵ Inexplicably, that duty was not discharged herein.

Defendant's plea in exchange for the prosecutor's agreement to dismiss the remaining charges expressly rejected the possibility of a "physical" or actual sentence of imprisonment. Whether the proffered plea was acceptable was within the exclusive discretion of the court. (Pen.Code, § 1192.5; see People v. Orin (1975) 13 Cal.3d 937, 942-943, 120 Cal.Rptr. 65, 533 P.2d 193; People v. Smith (1971) 22 Cal.App.3d 25, 30, 99 Cal.Rptr. 171.) But the discretion to conditionally approve the negotiated plea bargain did not sanction the wholly unrelated and unbargained condition interjected by the court concerning defendant's candidacy for immediate O. R. release pending contemplated formal sentencing proceedings. No authority validating such an unusual sentencing-release procedure has been advanced or otherwise discovered by us. ⁶

The announced purpose of promoting administrative convenience while providing an "incentive" ensuring timely appearance, hardly justifies such a summary sentencing procedure in open conflict with established procedural requirements (e. g., see Pen.Code, § 1203 mandating a probation presentence report and recommendation where defendant is otherwise eligible; see also Pen.Code, § 1200, arraignment for judgment). Moreover, the Legislature already provided adequate means, later invoked herein, calculated to assure a defendant's presence at all necessary stages, including sentencing (see Pen.Code, § 1318 et seq.); under the statutory scheme of O. R. release, a defendant who thereafter fails to appear without justification is subject to punishment upon conviction of the separate offense of a wilful failure to appear (see Pen.Code, § 1319.4) in an action brought at the discretion of the prosecutor, not be peremptory judicial fiat. (See People v. Adams (1974) 43 Cal.App.3d 697, 707-708, 117 Cal.Rptr. 905; People v. Municipal Court (1972) 27 Cal.App.3d 193, 204, 103 Cal.Rptr. 645; People v. Orin, supra, 13 Cal.3d 937, 943, 120 Cal.Rptr. 65, 533 P.2d 193.)

If effect, defendant's punishment was triggered solely by reason of another uncharged, unproven offense. The attempted "short cut" O. R. process, resulting in the immediate sentencing choice of imprisonment, without regard for minimal procedural requirements, was clearly arbitrary and an abuse of discretion. (Pen.Code, §§ 1191, 1203; see People v. Edwards (1976) 18 Cal.3d 796, 800-801, 135 Cal.Rptr. 411, 557 P.2d 995; People v. Arredondo (1975) 52 Cal.App.3d 973, 981-982, 125 Cal.Rptr. 419; People v. Rojas (1962) 57 Cal.2d 676, 680-681, 21 Cal.Rptr. 564, 371 P.2d 300; see also People v. Carl B. (1979) 24 Cal.3d 212, 218-219, 155 Cal.Rptr. 189, 594 P.2d 14; cf. Pen.Code, § 1170; Cal.Rules of Court, rules 410 and 418.) Nor does the fact that execution was stayed, and a probation report and diagnostic evaluation there after received, sanitize the tainted procedure. As the trial judge made unmistakably clear, defendant was sentenced to state prison notwithstanding the terms of the negotiated plea simply by reason of his failure to "show up" at the time of formal sentencing. (See fn. 1, Ante.)

While trial courts are encouraged to fashion procedural innovations, consistent with due process requirements, designed to effectively and fairly expedite the processing the criminal cases, we cannot condone unconventional techniques which clearly infringe upon a defendant's basic rights or otherwise fetter prosecutorial discretion as are here manifested.

Since the defendant was not accorded the full benefits of the negotiated plea bargain, unhindered by the invalid condition, he was entitled to withdraw his plea of guilty and enter a new and different plea to the original charges upon reinstatement. ⁷ (See People v. Kaanehe, supra, 19 Cal.3d 1, 13-15, 136 Cal.Rptr. 409, 559 P.2d 1028; cf. Stuart v. Superior Court (1974) 94 Cal.App.3d 182, 156 Cal.Rptr. 289.) Accordingly, we must reverse the judgment of conviction and remand with directions to set aside defendant's guilty plea, reinstate the original charges filed and undertake further proceedings as appropriate. (See In re Sutherland (1972) 6 Cal.3d 666, 671-672, 100 Cal.Rptr. 129, 493 P.2d 857.) In view of our decision, we need not discuss the remaining issues presented on appeal.

Judgment reversed and cause remanded for further proceedings consistent with the views herein expressed.

ELKINGTON and NEWSOM, JJ., concur.

1 In order that the full circumstances surrounding the genesis of the unique sentencing-release agreement may be understood, we report the relevant colloquy herein prior to change of plea in some detail:

"MR. ROLAND (defense counsel): At this time, Your Honor, Mr. Morris wishes to withdraw his previously entered plea of not guilty and, pursuant to negotiations with the District Attorney and discussions with the Court, to enter a plea of guilty to Count One and Two, each one being a violation of Section 245(a) of the Penal Code, assault with a deadly weapon, with the understanding that Counts Three, Four, and Five would be dismissed, and that the allegation of use under 12022.5 would be stricken. The District Attorney has indicated that there will be no physical State Prison pursuant to a negotiated plea, and the Court has indicated that it would release Mr. Morris today on his own recognizance pending report and sentence with a condition, or at least a strong reminder, that there should be no violations of the law between now and the report and sentence day.

"THE COURT: Well,...