People v. Rhoden

Decision Date29 October 1999
Docket NumberNo. D031235.,D031235.
Citation89 Cal.Rptr.2d 819,75 Cal.App.4th 1346
PartiesThe PEOPLE, Plaintiff and Respondent, v. Mary K. RHODEN, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Gregory L. Rickard, El Cajon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

McDONALD, J.

Mary K. Rhoden appeals a judgment following her jury conviction of transportation of a controlled substance (Health & Saf.Code § 11379, subd. (a)), possession for sale of a controlled substance (Health & Saf.Code, § 11378), burglary (Pen.Code, § 459),1 and receiving stolen property (§ 496, subd. (a)). Rhoden contends the trial court erred by not enforcing a plea bargain from which the prosecutor withdrew before the bargain was submitted for court approval. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1997 pawn shop employee AnnaMarie Nachazel appraised several pieces of Liana Campbell's jewelry. On August 27 Campbell's jewelry was stolen from her motel room. Campbell filed a police report, informed Nachazel of the theft, and asked her to watch for her jewelry being pawned.

On September 4 Rhoden and Andrea Abbott entered the pawn shop and Rhoden asked Nachazel how much she would pay for the earrings Rhoden handed to her. Nachazel recognized the earrings as a unique pair she had appraised for Campbell. Rhoden also was wearing a pair of earrings that Nachazel had appraised for Campbell. Nachazel called the police. When she told Rhoden the police were coming, Rhoden handed Abbott a zippered bag and said, "[G]et out of here. Get out of here. The police are on their way." The police arrived and found in the zippered bag plastic baggies that contained methamphetamine.

Rhoden admitted the truth of allegations that she had three prior drug convictions (Health & Saf.Code, § 11370.2, subd. (c)) and one prison prior conviction (§ 667.5, subd. (b)). The trial court sentenced Rhoden to a middle term of three years for the transportation offense, a concurrent middle term of two years for the burglary offense, and two consecutive three-year enhancements for prior drug convictions, for a total term of nine years.2

Rhoden timely filed a notice of appeal.

DISCUSSION
The Trial Court Properly Refused to Enforce a Plea Bargain from Which the Prosecutor Withdrew Before Its Submission for Court Approval

Rhoden contends the trial court erred by not enforcing a plea bargain from which the prosecutor withdrew before submission of the bargain to the court for approval and entry of the plea.

A

On the morning of the second day of trial, Rhoden and the prosecutor agreed to a plea bargain pursuant to which Rhoden agreed to plead guilty to the charge of receiving stolen property and the prosecutor agreed to dismiss the burglary charge. Rhoden, her counsel and the prosecutor signed a change-of-plea form that described the substance of the plea bargain.

In the afternoon, the prosecutor informed the trial court that he had "been discussing [with Rhoden's counsel] a plea" bargain on the two charges and stated, "I am going to have to withdraw from that at this point, and I have spoken with [Rhoden's counsel]." The prosecutor stated that the trial court's ruling on the scope of cross-examination of Campbell had alleviated his concerns influencing his decision to agree to the plea bargain. Rhoden's counsel noted that a change of plea form had been signed by Rhoden and the prosecutor, but that the prosecutor "all of a sudden ... comes in at 1:30 [p.m.] and says no. It's not on." Rhoden's counsel further noted that he "was ready to go forward with the plea at 10:00 [a.m.]" and did not need to question Campbell further; he was satisfied with her testimony to that point. Rhoden's counsel stated: "As far as I am concerned, this plea form should stand, and we should be allowed to go forward with the bargain." The court noted that when the parties agreed on the plea bargain, it was unknown on which issues Abbott's counsel would cross-examine Campbell and that "part of the motivation for entering into the plea [bargain] ... by the prosecution was to avoid the necessity of having Ms. Campbell testify further.... [T]hat is what I thought was going on." Rhoden's counsel responded that the prosecutor "signed the form after [Abbott's counsel] had already ... been told what the limited scope of the [cross-] examination was going to be...." (Italics added.) The prosecutor stated:

"I am not going to argue with that. I was holding on to the form and [had] not gotten to the point of reviewing and signing it. And then ... [Rhoden's counsel] said why don't you sign that thing and I did.

"And ... on the record, I would like to apologize to [Rhoden's counsel] as this is not something that happens to me ... very often. But I would say my initial agreement to terminate two counts or dispose of two counts, that was a matter of trial tactics, which is something unusual for plea agreements. And after the situation changed when we had come to the [plea] agreement, ... in my defense, your honor, yes, I signed the form.

"Do I think I should be held to it? No. I know that defendants oftentimes sign forms and decide[ ] they don't want to do something. The change of plea doesn't occur until the words, `I plead guilty,' occur on the record. We haven't gotten to that point. I apologize to [Rhoden's counsel] and his client, but I think that is where we are at. I don't think [the People] can necessarily be held to it."

The trial court stated:

"It appears to the court, for the time being at least, that the prosecution probably could not be held to the agreement without some form of performance by one side or the other and that—we can revisit that [issue] at any time .... if [Rhoden's counsel] wants to try to force the deal so to speak[.]"

Rhoden's counsel then argued that if the plea bargain were not enforced, he would want to question Campbell on her August 8, 1997, arrest in Orange County for possession of a controlled substance and her use of methamphetamine. The trial court noted that an arrest was not evidence that could be used for impeachment or other purposes and that Rhoden's counsel had stated he had no direct evidence that Campbell had used or possessed methamphetamine. The court stated it would exclude those questions on grounds of relevance and under Evidence Code section 352.

Rhoden's counsel represented that Abbott's counsel would waive further cross-examination of Campbell and repeated his request for enforcement of the plea bargain. The prosecutor again objected to enforcement of the plea bargain, arguing that "it's a matter of trial tactics.... [T]here was much dust thrown up in the air by [Rhoden's] counsel regarding Ms. Campbell.... [¶] The reason that I ... did not want to go forward with the plea agreement is that in the end what we have is Ms. Campbell's testimony regarding the theft of her items. [¶] ... I don't want to leave [the question of dismissed charges of burglary and receiving stolen property] out for the jury. They have been told they are going to decide that question, and I want ... to let them do it. And as I said, it's strictly a matter of trial tactics." Referring to Rhoden's right to a jury trial on the charges, the prosecutor noted: "There is no prejudice to Ms. Rhoden in not having this plea agreement [enforced]."

The trial court restated its ruling that it would "not at this time enforce the plea [bargain]" against the prosecutor.

Campbell then testified that the zippered bag belonged to her and that it contained only her jewelry when it was stolen. Abbott's counsel did not question Campbell on her Orange County arrest or methamphetamine use or possession. Rhoden's counsel asked Campbell whether the zippered bag had ever contained any drugs, but she denied it had.

After the close of evidence, Rhoden's counsel renewed his request that the trial court enforce the plea bargain. The prosecutor restated that he withdrew from the plea bargain because of trial tactics. The trial court stated:

"[W]hile there were some promises outstanding, the plea agreement had not been executed in the sense that [Rhoden] had not entered a plea, and I am disinclined to hold the prosecutor to the plea agreement."

The trial court affirmed its initial ruling that it would not enforce the plea bargain.

B

In Santobello v. New York (1971) 404 U.S. 257, at page 260, 92 S.Ct. 495, 30 L.Ed.2d 427, the court stated: "The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called `plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged."3 In People v. Orin (1975) 13 Cal.3d 937, at page 942, 120 Cal.Rptr. 65, 533 P.2d 193, the court described the plea-bargaining process as follows:

"The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604-608 [91 Cal.Rptr. 385, 477 P.2d 409].) Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People's acceptance of a plea to a lesser offense than that...

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