Troglin, In re

• Decision Date: 17 September 1975
• Docket Number: Cr. 14419
• Citation: 51 Cal.App.3d 434,124 Cal.Rptr. 234
• Court: California Court of Appeals Court of Appeals
• Parties: In re Herbert Ray TROGLIN on Habeas Corpus.

Page 234

124 Cal.Rptr. 234

51 Cal.App.3d 434

In re Herbert Ray TROGLIN on Habeas Corpus.

Cr. 14419.

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

Sept. 17, 1975.

Hearing Denied Nov. 25, 1975.

Herbert Ray Troglin, in pro per., Benjamin R. Winslow, San Francisco, (Under appointment of the Court of Appeal), for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Martin S. Kaye, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Troglin, who had suffered five prior felony convictions, and his wife opened a savings account under the name of her employer, a physician. She then intercepted checks payable to the doctor and deposited them in the account, after which the money was withdrawn by Troglin who signed the doctor's name on the withdrawal slips. As a result Troglin was charged with grand theft (Pen.Code, §§ 484, 487), conspiracy to commit grand theft (Pen.Code, § 182) and 17 counts of forgery (Pen.Code, § 470).

A plea bargain was thereafter entered into, under which it was agreed that 16 of the 17 forgery charges would be dismissed, and that Troglin's prior felony convictions would not be pleaded or proved. On his part Troglin agreed to plead guilty to the grand theft and conspiracy to commit grand theft charges, and to one of the forgery charges.

Another condition of the bargain was that the People would 'make no recommendations whatsoever with regard to sentencing, either to the Probation Department, the Judge or anyone else that has anything to do with the sentencing,' and further that the sentences on the three charges to which he pleaded guilty 'can run either concurrent or consecutively as the Judge deems proper under the circumstances as he sees them.' (Our emphasis.)

Following Troglin's agreed guilty pleas, the trial court sentenced him to state prison on each of the three counts, ordering that each of the sentences run concurrently with the others.

Troglin's 'Cumulative Case Summary,' used by the Adult Authority, designates him as a '6th Termer.' His minimum prison term eligibility, and 'minimum eligible parole date,' however, are carried on the records as those of a prison inmate without prior felony convictions.

Troglin has petitioned this court for a writ of habeas corpus.

He first contends that by his three concurrent sentences, he is being subjected to multiple punishment in violation of Penal Code section 654, and as proscribed by People v. Diaz, 66 Cal.2d 801, 806, 58 Cal.Rptr. 729, 427 P.2d 505.

Such multiple punishment occurs when the defendant is sentenced, even though the sentences are to run concurrently, for two or more offenses committed with a single criminal objective. (People v. Diaz, supra, 66 Cal.2d 801, 806, 807, 58 Cal.Rptr. 729, 427 P.2d 505.) Here the People concede that Troglin's criminal objective was grand theft from his wife's employer as charged in the indictment, and that the conspiracy and forgery offenses for which he was also sentenced were committed pursuant to that objective. And the People agree that ordinarily Troglin's instant contention would have merit. But it is pointed out that Troglin agreed, as part of his plea bargain, that the trial court could order sentences on the three charges to which he was to plead guilty, to 'run either concurrent or consecutively as the Judge deems proper under the circumstances.' Having done so, the People argue, he is bound by his bargain.

The record before us establishes, beyond any doubt, that Troglin's agreement was deliberately, intelligently, competently, and personally, made by him. We note that his plea bargain faithfully followed the guidelines of People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409. And on his guilty pleas the waiver requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, were fully effectuated.

It seems proper at this point to consider the effect of Troglin's plea bargain.

Without it, had the People elected to dismiss the grand theft and conspiracy counts, Troglin could have been tried, convicted and sentenced, either concurrently or consecutively, on Each of the 17 forgery counts. (See People v. Neder, 16 Cal.App.3d 846, 853--855, 94 Cal.Rptr. 364.) Had his five prior convictions been pleaded and proved he could have been subjected to mandatory longer terms and deferred parole eligibility. By his bargain he was assured of far less than maximum punishment for his crimes; indeed, he obtained for himself parole Eligibility after six months of prison confinement.

Well established is the rule that the People will be held strictly to the terms of a plea bargain made with a criminally accused. (See Prople v. West, supra, 3 Cal.3d 595, 610--611, 91 Cal.Rptr. 385, 477 P.2d 409; People v. Delles, 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629; People v. Morgan, 21 Cal.App.3d 33, 42, 98 Cal.Rptr. 165; People v. Cortez, 13 Cal.App.3d 317, 333, 91 Cal.Rptr. 660; People v. Fratianno, 6 Cal.App.3d 211, 221, 85 Cal.Rptr. 755.) 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.

We observe that the rule against multiple prosecution has no fundamental or constitutional roots; it is but 'a procedural safeguard against harassment.' (Neal v. State of California, 55 Cal.2d 11, 21, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Ward, 30 Cal.App.3d 130, 134, 105 Cal.Rptr. 67.) An accused will not be deemed 'harassed' under Penal Code section 654, where the claimed harassment 'may be said to result from his own conduct.' (People v. Hartfield, 11 Cal.App.3d 1073, 1078, 1080, 1081, 90 Cal.Rptr. 274, 277.) '(T)he provisions of section 654 cannot be employed to mislead the court' (In re Hayes, 70 Cal.2d 604, 610, fn. 11, 75 Cal.Rptr. 790, 794, 451 P.2d 430, 434; People v. Hartfield, supra, p. 1080, 90 Cal.Rptr. 274), and when 'the appellant has perpetrated a fraud upon the respondent court, he may not here be heard to say that he is being subjected to double punishment for the same act' (Gail v. Municipal Court, 251 Cal.App.2d 1005, 1008, 60 Cal.Rptr. 91, 94). All participants in a plea bargain 'must conduct themselves openly and with The utmost fairness.' (People v. Ramos, 26 Cal.App.3d 108, 111, 102 Cal.Rptr. 502, 504; emphasis added.)

Here Troglin has not been harassed by the People, and it may reasonably be said that his attempted rejection of the agreement which induced the People's consent to his bargained for pleas and other advantages, is calculated to perpetrate a fraud upon the court and the People.

It is notable that upon a plea bargain's guilty plea a defendant, at his request or acquiescence, may be convicted of a lesser offense not charged, and the statutory definition of which 'does not logically compose a part of the greater.' This is no even though the trial court would otherwise be without jurisdiction to convict him of the offense. (See People v. West, supra, 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409.) By reasonable extension of that rule, the trial court must be permitted in a plea bargain, at defendant's request or acquiescence, to impose multiple sentences resulting in lesser punishment than that to which he would otherwise be exposed.

Troglin's remaining complaint relates to his designation on the...