People v. Rodriguez

• Decision Date: 21 May 1987
• Docket Number: Cr. F006757
• Citation: 191 Cal.App.3d 1566,237 Cal.Rptr. 137
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Victor Zavala RODRIGUEZ, Defendant and Appellant.

Page 137

237 Cal.Rptr. 137

191 Cal.App.3d 1566

The PEOPLE, Plaintiff and Respondent, v. Victor Zavala RODRIGUEZ, Defendant and Appellant.

Cr. F006757.

Court of Appeal, Fifth District, California.

May 21, 1987.

[191 Cal.App.3d 1567] Jeff Reich, under appointment by the Court of Appeal, Fresno, for defendant and appellant.

John K. Van de Kamp, Atty. Gen. and Garrick W. Chock, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

BEST, Associate Justice.

Defendant was convicted by plea of violating Health and Safety Code section 11350, possession of heroin. He was ultimately sentenced to the upper term of three years, execution of which term was suspended, and was granted probation for a period of five years on condition, among others, that he serve one year in the county jail.

Defendant's sole contention on appeal is that the trial court abused its discretion in denying his motion to withdraw his guilty plea. We agree.

FACTS

The facts underlying defendant's violation of Health and Safety Code section 11350 are not pertinent to the appeal. Defendant contends only that the trial court erred in denying his motion to withdraw his guilty plea. The facts relevant to this appeal are that on May 10, 1985, defendant pled guilty to possession of heroin (Health & Saf. Code, § 11350). At the time of defendant's plea, the trial court stated to defendant that after discussing the matter with defense counsel and reviewing the records, it would sentence defendant to no more than nine months in county jail as a condition of felony probation. Defendant was also told that if, at the time of sentencing, the court determined to sentence defendant to more than nine months in county jail, defendant could set aside his guilty plea and go to trial. After accepting defendant's guilty plea and determining there was a factual basis for the plea, the trial court set the sentencing hearing for June 12, 1985.

On June 12, 1985, however, defendant failed to appear, and a bench warrant was issued for his arrest. He later surrendered to the court on December 31, 1985. A sentencing hearing was rescheduled for January 14, 1986, and the probation department was ordered to prepare a supplemental probation officer's report. On January 14, defendant made a motion to withdraw his guilty plea if the court intended to follow the probation officer's updated report. The initial report apparently recommended that defendant be placed on probation for three years and serve nine months in county jail; whereas, the supplemental report recommended the aggravated term of imprisonment of three years. The district attorney, however, argued, citing to People v. Santos (1985) 171 Cal.App.3d 67, 216 Cal.Rptr. 911, that defendant had violated the plea bargain by failing to appear, was not entitled to enforce the bargain and was no longer entitled to withdraw his guilty plea even if the trial court imposed a sentence in excess of that provided for in the plea bargain. The trial court did not make an express finding at this hearing, but it gave defendant a continuance to enable him to show why his failure to appear was not willful and, if willful, was not a breach of the terms of the plea bargain.

The continued hearing took place on January 22, 1986. At this hearing, defendant presented no evidence to explain his failure to appear at his initial sentencing hearing. However, defense counsel cited to People v. Barrero (1985) 163 Cal.App.3d 1080, 210 Cal.Rptr. 70 and People v. Morris (1979) 97 Cal.App.3d 358, 158 Cal.Rptr. 722 for the proposition that a trial court errs in refusing to allow a defendant to withdraw a guilty plea and in imposing a greater sentence than included in the plea bargain, where a defendant fails to appear at his or her formal sentencing hearing. Nevertheless, the trial court denied the request to withdraw the plea in reliance on People v. Santos. It further found that defendant failed to show his failure to appear was not willful.

The trial court thereafter sentenced defendant to the upper term of imprisonment, but it suspended execution of that sentence and granted probation for five years. One of the conditions of probation was that defendant spend one year in county jail.

DISCUSSION

The Courts of Appeal are divided on the question of whether a defendant, who absconds after entering into a negotiated plea bargain, is thereafter entitled to withdraw his guilty plea when the court thereafter intends to impose a sentence contrary to the terms of the plea bargain. People v. Santos, supra, 171 Cal.App.3d 67, 216 Cal.Rptr. 911 stands alone in holding that a defendant who fails to appear at his formal sentencing hearing breaches an implied term of the negotiated plea bargain entitling the court not only to deny withdrawal of his plea but to impose a sentence in excess of that provided for in the plea bargain. We disagree with Santos and agree with the reasoning and holding of In re Falco (1986) 176 Cal.App.3d 1161, 222 Cal.Rptr. 648 as follows:

"The practice of plea bargaining is well accepted in American criminal procedure (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 [187 Cal.Rptr. 441, 654 P.2d 211] ) and has been expressly endorsed by statute in California since 1970. (§ 1192.5; People v. Johnson (1974) 10 Cal.3d 868, 871, fn. 1 [112 Cal.Rptr. 556, 519 P.2d 604]; People v. Daugherty (1981) 123 Cal.App.3d 314, 320 .) It is indisputable that section 1192.5 explicitly authorizes a guilty plea which may 'specify the punishment' to the same extent it could be fixed by the court upon conviction. The statute also makes it unmistakably clear that once the plea accepted by the prosecutor obtains initial judicial approval, 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.' The court's initial approval is not binding and may be withdrawn at the time of sentencing; 'in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.' (Italics added.) Although the meaning of such unambiguous language seems plain enough to be accorded faithful application without necessity of further construction (In re Atiles (1983) 33 Cal.3d 805, 811 [191 Cal.Rptr. 452, 662 P.2d 910] ), any uncertainty as to legislative intention must be resolved in favor of the offender. (In re Jeanice D. (1980) 28 Cal.3d 210, 217 [168 Cal.Rptr. 455, 617 P.2d 1087].)

"Thus, while it lies within the exclusive province of the court to accept or reject a proffered plea bargain (People v. Daugherty, supra, 123 Cal.App.3d 314, 321 ; People v. Morris, supra, 97 Cal.App.3d 358, 363 ), which also retains broad discretion to withdraw its prior approval at the time of sentencing (People v. Johnson, supra, 10 Cal.3d 868, 873 [112 Cal.Rptr. 556, 519 P.2d 604] ), there is no authority consistent with due process requirements to justify implementation of the bargain in a manner contrary to its explicit terms, at least in the absence of the defendant's consent. (See generally Santobello v. New York (1971) 404 U.S. 257 [30 L.Ed.2d 427, 92 S.Ct. 495] passim; People v. Mancheno, supra, 32 Cal.3d 855, 860 [187 Cal.Rptr. 441, 654 P.2d 211]; People v. Calloway (1981) 29 Cal.3d 666, 673 [175 Cal.Rptr. 596, 631 P.2d 30]; People v. Johnson, supra, 10 Cal.3d at pp. 872-873 [112 Cal.Rptr. 556, 519 P.2d 604]; see also People v. Delles (1968) 69 Cal.2d 906, 910-911 [73 Cal.Rptr. 389, 447 P.2d 629].) Although the trial court is authorized to withdraw its approval 'in the light of further consideration of the matter ...' (§ 1192.5), it had no authority to enforce a bargain essentially modified so as to increase punishment without the parties' consent....