Stuart v. Superior Court

• Decision Date: 18 June 1979
• Parties: Byron McGray STUART, Petitioner, v. SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 46994.
• Court: California Court of Appeals Court of Appeals

Page 289

156 Cal.Rptr. 289

94 Cal.App.3d 182

Byron McGray STUART, Petitioner, v. SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 46994.

Court of Appeal, First District, Division 3, California.

June 18, 1979.

William C. Connell, Public Defender of Humboldt County, by Steven C. Weiss, Deputy Public Defender, Eureka, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosia, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest.

WHITE, Presiding Justice.

Petitioner challenges two Humboldt County Superior Court orders. The first revoked a stay of execution of his sentence for violation of Health and Safety Code section 11350. The second denied his motion to reinstate the stay or to permit him to withdraw his plea of guilty.

One condition bargained for by petitioner when he entered his plea of guilty, and accepted by the trial court at sentencing, was that the sentence imposed would be stayed pending resolution of petitioner's appeal. Petitioner was sentenced March 1, 1979 to two years, with a stay as agreed. On March 6, 1979 he filed his notice of appeal, seeking to challenge denial of his Penal Code section 1538.5 motion.

Two felonies were subsequently charged against petitioner (receiving stolen property and possession of a sawed-off shotgun), and on March 29, 1979, the district attorney moved to revoke the stay. On April 4, 1979 the motion was granted and petitioner was committed to the Department of Corrections. Petitioner moved to withdraw his guilty plea or to reinstate the stay, but his motion was denied May 2, 1979. This writ petition followed.

The petition challenges both trial court orders and seeks the alternative remedies of reinstatement of the stay or permission to withdraw the guilty plea, though petitioner expresses a preference for the former remedy. We agree with the Attorney General that because filing of the notice of appeal preceded both challenged orders, the trial court's jurisdiction extended only to granting or revoking the stay of execution of sentence. Petitioner's motion to withdraw his plea could not have been properly granted because of the general rule that "once an appeal has been taken from a judgment of conviction, the trial court is without jurisdiction to vacate the judgment. (Citations)" (People v. Haynes (1969) 270 Cal.App.2d 318, 321, 75 Cal.Rptr. 800, 802).

We reject the attorney general's suggestion that petitioner's remedy is by appeal. If the trial court erred in revoking its stay of execution, it will benefit petitioner little to discover that fact after the appeal process has been exhausted. The effect of waiting in prison for a decision on any appeal from the order revoking the stay would likely be the same as would have resulted had petitioner never bargained for the stay. Without the bargain, petitioner would have remained in custody during the pendency of his appeal from judgment of conviction unless he was granted bail.

This petition is controlled by the principles stated in People v. Delles (1968) 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 392, 447 P.2d 629, 632:

"If a defendant pleads guilty as part of a bargain with an apparently authoritative and reliable public official usually the prosecutor or, as here, the trial judge himself whereby he is assured of receiving in return for his plea probation, a lenient sentence, or some other form of special consideration, the trial judge may not impose judgment contrary to the terms of such bargain without affording the defendant an opportunity to withdraw his guilty plea . . . ."

The situation here is different in that it was the court's act After judgment, not its sentence, which violated the bargain. However, the principle is the same: the prosecution having received its part of the bargain, petitioner may not be deprived of the benefit for which he bargained.

The decision in People v. Allen (1975) 46 Cal.App.3d 583, 120 Cal.Rptr. 127, does not compel a different conclusion. There the bargain was for conditions of probation, which the trial court subsequently modified over objection by the...