People v. Witherow

• Decision Date: 28 April 1983
• Citation: 190 Cal.Rptr. 899,142 Cal.App.3d 485
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John WITHEROW, Defendant and Appellant. In re John WITHEROW, On Habeas Corpus. A018044, A020182.

Page 899

190 Cal.Rptr. 899

142 Cal.App.3d 485

PEOPLE of the State of California, Plaintiff and Respondent, v. John WITHEROW, Defendant and Appellant In re John WITHEROW, On Habeas Corpus.

A018044, A020182.

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

April 28, 1983.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Morris Lenk, Deputy Attys. Gen., San Francisco, William D. Curtis, Dist. Atty., Salinas, for plaintiff and respondent.

Richard A. Lieberman, San Francisco, for defendant and appellant.

ELKINGTON, Associate Justice.

We have consolidated defendant Witherow's appeal from a judgment, based upon his plea of guilty to a charge of possessing a concealable firearm by one who had previously been convicted of a felony (Pen.Code, § 12021), with his related initial and supplemental applications for a writ of habeas corpus.

For reasons we now state we affirm the judgment and deny the habeas corpus application.

The Appeal

It is first contended that: "The trial court committed reversible error in sentencing appellant without stating its reasons for imposing the upper term."

As further argued by Witherow: "Following his guilty plea, appellant was sentenced to the upper term of three years in accordance with the negotiated disposition pursuant to Penal Code section 1192.5. At sentencing, the trial court followed the terms of the negotiated disposition, however, it failed to articulate the reasons for its decision to impose the upper term."

It was part of the negotiated disposition on Witherow's guilty plea that he be given "the upper term of three years." Announcing to the court the plea bargain, his attorney said that a stipulation had been reached that "the sentencing be the maximum three years." (Our emphasis.) And the court thereupon expressly advised Witherow that the guilty plea's acceptance "was on the condition you be given the upper term." (Emphasis added.) To which Witherow replied, "Agreed."

In sentencing a defendant to an upper term pursuant to a plea bargain "the court, in stating its reasons for that sentence choice, need only give the bargain as its reason and need not give any other reason." (People v. Sutton, 113 Cal.App.3d 162, 163, 169 Cal.Rptr. 656.) And manifestly, the court need not iterate the terms of the bargain to which the defendant had expressly agreed. In such a case, "where a bargain is struck and the sentence is in accord with the bargain, there is no purpose to be served by the court discussing with the defendant, in the abstract, the possible range of punishments for the charge." (Scoggins v. Superior Court, 65 Cal.App.3d 873, 877, 135 Cal.Rptr. 619.) And: "Well established is the rule that the People will be held strictly to the terms of a plea bargain made with a criminally accused.... It seems reasonable and just, at least where no public policy, or statutory or decisional or constitutional principle otherwise directs, that the accused also be held to his agreement." (In re Troglin, 51 Cal.App.3d 434, 438, 124 Cal.Rptr. 234.)

The instant contention is thus devoid of merit.

The remaining assignment of error on Witherow's appeal is stated by him as follows: "The court failed to inform the appellant of the possibility that he may have to serve a term on parole following the completion of his sentence; thus, appellant was sentenced improperly as well as denied full advisement of the consequences of his plea."

Here we note that upon acceptance of Witherow's proffered plea bargain the court stated, "its on the condition you be given the upper term, strike the [prior] prison term, plus the parole period ...," to which condition Witherow also expressly "agreed." And as the proceedings were ending, the court asked: "Do you have any questions you want to ask me as to the potential consequences?" Witherow answered, "No, sir."

Witherow was reasonably and properly informed of the possibility of a parole period following his prison term.

Moreover, the record indicates that Witherow, a repetitive criminal offender, was knowledgeable and wise in matters such as that, ordinarily if not inevitably, periods of parole follow prison terms. Indeed, the ostensible purpose of his plea bargain was to gain some real, or imagined, advantage in relation to a parole which he explained as follows--"My problem which I am trying to work on is that, okay, if I am sentenced on State time and I had to do my State time first with a Federal detainer on me for parole violation, at the end of my State time then I would be turned over to Federal authorities. I would start my parole violation from that term, and I would have another three years to do, which would make my time consecutive"--a result which he hoped to avoid by his guilty plea.

Again, no merit is seen in the contention.

The Habeas Corpus Application

On his habeas corpus application and the supplements thereto, Witherow first tells us that his attorney, discussing the contemplated plea bargain, "informed him that 'on a three-year sentence, you would do two (2) years (i.e., with conduct credits), and that's it.' Petitioner understood this to mean that he would serve two (2) years in prison and that would be it." The information, he states, was incorrect because a parole period would be added to the three-year (or two-year) prison term. He then declares that he was not aware of the parole period, and would not have entered his guilty plea had he been informed of it.

Witherow's contention is refuted by the record which, as noted, establishes that he was told by the court that he would be given the upper three-year term, "plus the parole period," to which he expressly "agreed."

Another contention of the habeas corpus application is that, upon his guilty plea, Witherow was not advised that "he would automatically be subjected to forfeiture of credit towards his federal sentence for all the time he served on parole under the provisions of [U.S.Code, Title 18] Section 4210(b)(2)." He misconstrues the cited statute as providing for "automatic forfeiture" of parole credits. Instead, it provides that the Federal Parole Commission shall, in its discretion, as to one situated as was Witherow, "determine ... whether all or any part of the unexpired term being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense, ..."

Here again the record appears to belie Witherow's argument. At the plea bargain proceedings, and as we have heretofore pointed out, he explained to the court and counsel: "[I]f I am sentenced on State time and I had to do my State time first with a Federal detainer on me for parole violation, at the end of my State time then I would be turned over to Federal authorities. I would start my parole violation from that term, and I...