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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph CLAYTON, Defendant and Appellant.

No. B061340.

Decided: January 27, 1993

Bruce Daniel Rosen, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting, r. Asst. Atty. Gen., Paul C. Ament and Juliet H. Swoboda, Deputy Attys. Gen., for plaintiff and respondent.

Appellant urges two reasons the judgment, based upon his plea of guilty, must be reversed:  (1) the trial court abused its discretion in denying his motion to withdraw his guilty plea (Pen.Code § 1018) 1 and (2) trial counsel, by not advising him he was statutorily ineligible for narcotic treatment (Welf. & Inst.Code, § 3052), was ineffective.

We conclude appellant did not make a motion to withdraw his guilty plea, did not show “good cause” (§ 1018), even if he had made such a motion, and was not denied effective assistance of counsel.   We affirm the judgment.


On June 5, 1990, at approximately 1:20 a.m., Christopher Durham (the victim) had been unsuccessfully trying to change a $20 bill at a gas station near Redondo and Washington Blvd. in Los Angeles, when a red Nissan drove into the station.   The victim recognized the driver of the Nissan and asked him if he had change for a $20 bill.   He said “no” but the passenger, appellant, said he did.   Appellant exited, walked to the victim, took the $20 bill, and walked away.   The victim followed him and asked for his change.   Appellant went to the victim's unlocked car, the keys were in the ignition, and looked in.   After awhile, appellant looked up, put his hand behind his back and said, “No, man, I ain't giving you your change back.”   Appellant pulled out his knife and said “Well, that's what I am all about.”

The victim jumped into his car but appellant reached in and grabbed the victim's gold chain from his neck.   The victim closed his car door, started his car, put it in reverse, and drove backwards.

About this time the police arrived.   Appellant saw them and threw his knife into the red Nissan.   The police recovered the $20 from appellant, the knife from the red Nissan, and the victim's necklace near where appellant was standing.   They arrested appellant for robbery.

The district attorney charged appellant with robbery and on June 21, 1990, following a preliminary hearing, he was held to answer for that offense.

The district attorney filed the information on June 27, 1990.   Besides the robbery charge it alleged only one enhancement, use of a knife.  (§ 12022, subd. (b).)  Although appellant had been separately convicted of at least five felonies,3 had been sentenced to state prison on four separate occasions, and had been in custody almost continuously since 1973, no state prison felony enhancement (§ 667.5, subd. (b)) was alleged.

On June 28, 1990, appellant pleaded not guilty and denied the knife allegation.   A pretrial conference was set for July 26, 1990.   Appellant failed to appear and a bench warrant issued.

Five and a half months later, on January 11, 1991, appellant was apprehended.   Another pretrial conference was set for January 24, 1991.   It was again continued to February 14, 1991, when the court ordered a pre-plea probation report.   Bail was reinstated.   On March 1, 1991, appellant failed to appear.   On March 8, 1991, appellant pleaded guilty and admitted the knife allegation.   The court imposed but suspended sentence and ordered a narcotic treatment petition (Welf. & Inst.Code, § 3051) be filed in department 95.   Appellant was returned from department 95 and, on April 30, 1991, the sentence was ordered executed.   This appeal followed.


1. Appellant did not make a motion to withdraw his plea of guilty.

As we have indicated, on March 8, 1991, appellant withdrew his original not guilty plea and, as part of a plea bargain, pleaded guilty to second degree robbery and admitted the knife use allegation.  (§ 12022, subd. (b).)  In exchange for his guilty plea appellant was promised a four-year state prison sentence (three-year mid-term for robbery, plus one year weapon enhancement [§ 12022, subd. (b) ] ) and “a referral to department 95” regarding narcotic evaluation.   He was told:  “if you're not eligible ․ you'll come back here” and the four-year sentence will be executed.   Appellant stated he understood and agreed.

Pursuant to the plea bargain, the trial court sentenced appellant to a four-year state prison term, stayed the sentence, and referred appellant to department 95.

 Following appellant's rejection for narcotic treatment (Welf. & Inst.Code, § 3052), the trial court, on April 30, 1991, resumed criminal proceedings and ordered the four year state prison sentence executed.

We consider appellant's claim that on that date, April 30, 1991, he made a motion to withdraw his guilty plea.

Appellant does not claim such a motion was noticed.   Not by his attorney, deputy public defender Kenneth Erlich, not by his new attorney, Bill McKinney, who he claimed to have retained, and not by himself.

Nor does appellant suggest there was a hearing on the “motion” or that the prosecutor opposed the motion or even spoke to it.

Further, appellant does not claim the trial court denied or otherwise ruled upon it.   In fact, appellant concedes “the court made no ruling․” 4

Nor does appellant assert that in his letter to the trial court, written after his rejection by department 95, he either made or suggested such a motion.   To the contrary, rather than requesting an opportunity to contest his guilt, he asked for “mercy” and an opportunity to enroll in one of the private drug programs he had contacted.

At the April 30th proceeding, appellant resumed his apparent goal of receiving narcotic treatment rather than a state prison sentence.   During a protracted colloquy (which we later consider in more detail), appellant claimed both his attorney and the trial court had made plea bargain misrepresentations to him.   The claims were denied.   It is not contended by appellant that during this protracted colloquy he made his motion to withdraw his guilty plea.

Following this protracted colloquy, this exchange occurred:

“The Court:  Counsel, do you waive arraignment for judgment and sentencing?

“Mr. Erlich:  Yes.

“The Court:  Legal cause?

“Mr. Erlich:  No legal cause.

“The Court:  Would you like to be heard further?

“Mr. Erlich:  He had additional credits.

“The Court:  What are they?

“Mr. Erlich:  I don't have them in front of me.   He has—does the court has [sic] a pre-plea report in front of it?   The court should have a pre-plea report.

“The Court:  He was sentenced on 3–8–90.

“Mr. Erlich:  Your Honor, you had sentenced him and suspended the proceedings.   I would calculate he has credit for another 53 days on top of whatever you gave him and 6 days' good behavior.

“The Court:  That's 53 day as of today, actual time?

“Mr. Erlich:  53 actual.

“The Court:  And 26 days good time/work time.”

At this point, peripheral sentencing matters having been attended to and with the court poised to order execution of sentence, the following and final colloquy took place:

“Mr. Erlich:  Your Honor, Mr. Clayton is very adamant about wanting me to ask the court if he could have another drug program.

“The Court:  I will recommend that they place him in one.

“The Defendant:  Could I ask a question, Dorn?

“I have a drug program, twelve-month live-in program.   Is there any possible way—I was well aware before I accepted the plea are there any alternative programs that we can try?

“The Court:  I don't have any.

“The Witness [sic]” Is there any chance I take my plea back?   That's out?

“The Court:  That's out.   The court suspended the state penitentiary sentence.   That suspension—the sentence will be imposed at this point.

“Midterm, three years, plus the one year for the 12022B of the Penal Code.   That's a total of four years.

“He was given credit for a total of 204 days previously.   Added to that will be 53 actual days and 26 days good time/work time for an additional 79 days.

“That is the order of the court.

“The court recommends that this defendant be treated for his drug problem while he is in prison.

“(Proceedings concluded.)”  (Emphasis added.)

It is the italicized question that appellant characterizes as his motion to withdraw his guilty plea.   We reject the characterization.   Appellant made no such motion.

“A motion is an application made to the court for an order.  (Code Civ.Proc., § 1003;  Pen.Code § 1102;  People v. Ah Sam (1871) 41 Cal. 645, 650–651;  People v. Von Badenthal (1935) 8 Cal.App.2d 404, 411 [48 P.2d 82].   On the hearing movant has the burden to support his motion by proof.   The proper practice on motions is simple and well settled.   The moving party first presents his case, and those who oppose then have a right to present theirs.   The foregoing is in conformity with section 500 of the Evidence Code, which provides:  ‘Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or non-existence of which is essential to the claim for relief or defense that he is asserting.’  ‘ “Law” includes constitutional, statutory and decisional law.’  (Evid.Code, § 160.)”   (People v. Carson (1970) 4 Cal.App.3d 782, 785 [84 Cal.Rptr. 699].)

It is not enough to refer to or to file a motion.  “The attention of the court must be called to it.   The court must be moved to grant the order.”  (People v. Ah Sam, supra, 41 Cal. 645, 650.)  (Emphasis added.)

 None of the following constitute making a motion:  Appearing in court and announcing “one's readiness to make a motion” (Milstein v. Sartain (1943) 56 Cal.App.2d 924, 931, 133 P.2d 836);  allowing a motion for new trial to be heard together with a probation hearing and not calling “the attention of the court to [the] motion for new trial.”  (People v. Murphy (1962) 207 Cal.App.2d 885, 888–890, 24 Cal.Rptr. 803;  counsel “preparing for a motion” or stating “ ‘I would like to make a motion.’ ”  (People v. Dillard (1959) 168 Cal.App.2d 158, 169, 335 P.2d 702);  oblique references to a motion to dismiss (Harris v. Board of Education (1957) 152 Cal.App.2d 677, 681–682, 313 P.2d 212);  counsel stating—during the course of one doctor's testimony—“ ‘I would like to have another doctor called in this case.’ ”  (People v. Von Badenthal, supra, 8 Cal.App.2d 404, 411, 48 P.2d 82.)

Appellant did not apply to the court for an order, let alone move the court to grant the order.   Appellant did not make a motion (to withdraw his guilty plea).

2. Appellant did not show “good cause” to withdraw his guilty plea.

 Section 1018 provides that for “good cause shown” the court may “permit the plea of guilty to be withdrawn.”

Even assuming appellant made a motion to withdraw his guilty plea, he failed to show “good cause.”

As our Supreme Court has recently stated:  “[T]he withdrawal of such a plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion.   An appellate court will not disturb the denial of a motion unless the abuse is clearly demonstrated.   It is the defendant's burden to produce evidence of good cause by clear and convincing evidence.”  (People v. Wharton (1991) 53 Cal.3d 522, 585, 280 Cal.Rptr. 631, 809 P.2d 290.   Citations and internal quotations marks omitted.)

Appellant produced neither “clear” nor “convincing” evidence.

Appellant represented to the trial court that his attorney and his attorney's supervisor assured him he was eligible for department 95 referral.   His attorney denied the claim.   The trial court did not believe appellant.

Appellant even told the trial court that he, Judge Dorn, had assured appellant he was “qualified” for department 95 referral.   The trial court unequivocally denied appellant's claim.

Appellant finally asserted, as he does on appeal, that his attorney did not tell him he was statutorily ineligible for Department 95 referral.  (Welf. & Inst.Code, § 3052.)   Even if true the omission does not amount to good cause.  (People v. Ribero (1971) 4 Cal.3d 55, 61, 92 Cal.Rptr. 692, 480 P.2d 308.  [“ ‘Purported misrepresentations of defense counsel that a specific sentence will be imposed are insufficient to vitiate a plea entered in reliance thereon’.”] )

The trial court found:  (1) The plea bargain terms were appellant would receive a four year sentence (rather than a possible 6 year sentence) and be referred to department 95;  (2) appellant understood the bargain and agreed to it;  and (3) the bargain was adhered to.

Appellant's disappointment, if that's what it was, in being rejected by department 95 did not constitute “good cause.”

3. Appellant was not denied effective assistance of counsel.

 “[T]he burden of proving a claim of inadequate trial assistance is on the appellant.  [Citation].  Thus, appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.   In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.

 “Once an appellant has met these burdens, the appellate court must look to see if the record contains any explanation for the challenged aspect of representation.   If it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious diligent advocate.   For example, where the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.


“In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged.   In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation the cases are affirmed on appeal.”  (People v. Pope (1979) 23 Cal.3d 412, 425–426, 152 Cal.Rptr. 732, 590 P.2d 859.)

 Appellant's counsel on appeal assumes that the instant bargain consisted of appellant's pleading guilty in exchange for a department 95 referral—evaluation.   Not so.   The bargain assured appellant he would not be sentenced to the 6 year term the information, as then pled, permitted, nor would the information be amended to allege four state prison felonies (§ 667.5) which would increase his possible sentence to 10 years.   Instead he would receive, at worst, a four year prison term and, at best, a narcotic addict commitment.

Although, in, theory, appellant was ineligible for such narcotic addict commitment, that does not mean such a commitment could not occur.   Anyone familiar with the criminal justice system, and few were more familiar with it than appellant, knows it makes both mistakes and exceptions.   Appellant appears to have alluded to just such an “exception” when he represented to the trial court that department 95 had “finally called ․ and said if I got the weapon stricken, that they would see me.”

In a case where proof of guilt was overwhelming and easily shown, where possible punishment was 10 years, defense counsel was not ineffective in obtaining, at worst, a four year sentence and, at best, a chance at a narcotic addict commitment.


The judgment is affirmed.

I respectfully dissent.

In my view, appellant made a procedurally sufficient request to withdraw his guilty plea.   Moreover, he had clear grounds for doing so because his plea was the product of a mistaken view of the law.   Appellant's trial counsel either shared this erroneous impression or rendered ineffective assistance by failing to bring the error to appellant's attention before the plea.

While the majority opinion sets forth a reasonably accurate account of the version of the crime which emerged from the preliminary hearing testimony, I am required to fill in some gaps in its description of what happened during the court proceedings.

Appellant was charged with second degree robbery and the enhancement he used a knife.   At arraignment, he initially pled not guilty.   Eight months later, and after a pre-plea report was prepared, appellant entered a guilty plea to both the robbery and the use enhancement.   However, he conditioned this plea on an agreement:  The trial court was to refer appellant to department 95 for that court to determine whether to assign him to the California Rehabilitation Center (CRC).   Only if department 95 decided against a CRC placement would appellant be returned to the trial court and sentenced to serve four years in regular confinement.   Pursuant to this agreement, the court sentenced appellant to four years—the mid-term of three years on the robbery and one year on the knife enhancement—then suspended the sentence and adjourned further proceedings under Welfare and Institutions Code section 3051.1

For purposes of this appeal, I accept respondent's own summary of what happened when appellant appeared to enter his plea of guilty—as set forth in the Attorney General's brief—because it highlights the fact even that version stated most favorably to respondent reveals appellant agreed to the plea only because of a “mistake of law.”   As that brief reads:

“On March 8, 1991, defense counsel stated that,

“ ‘We're going to accept the offer of three years plus a year for the knife, Your Honor, with the understanding he'll be referred to department 95 for CRC.’

“As the prosecutor asked if appellant wished to plead guilty, appellant stated, ‘Yes, sir.   On condition that it's CRC.’

“The trial court immediately stated,

“ ‘No, no, no, no.   Either he's going to plead guilty or not.   If he's pleading guilty with the idea that the court will refer the matter to department 95 for department 95 to make a decision as to whether he qualifies for CRC.   If he doesn't qualify for CRC, he'll return to court for sentencing.   I want him to clearly understand that.’

“The prosecutor added, ‘And the sentence would be four years in state prison.’   He asked, ‘Do you understand that?’

“Appellant stated, ‘That's what I didn't understand, sir.’   The prosecutor said, ‘I want you to understand it now.’   Appellant said, ‘If CRC doesn't accept me, I'll come before you?’

“The court responded,

“ ‘That's right.   If they accept you, that's where you will be.   But if CRC does not accept you, you'll be returned to this court and you'll be sent to the state penitentiary for four years.’

“There was an off the record conference between appellant and his counsel whereupon appellant indicated that he understood.   The taking of the waivers continued.

“When appellant was asked if he understood that which he was pleading guilty to, he responded ‘Yes and no, ․’ The prosecutor then explained the underlying facts of the charge and the prosecutor told him he did not have to plead guilty.   There was a conference between appellant and counsel whereupon the court said, ‘Set this matter for trial.’   Appellant then said, ‘He's accepting the deal, Your Honor.’   The trial court explained that ‘This is not a place where you play games ․’ and indicated that if appellant did not want to plead guilty, the matter could be set for trial.

“When the facts underlying the charge were again stated, appellant asserted that he ‘didn't do it.’   The prosecutor stated he would not accept the plea and the trial court stated the matter would be set for trial.   Appellant then said, ‘Can I talk to the attorney?   I don't understand what he's doing.’

“After a recess, defense counsel stated he believed there was ‘․ a disposition for three years, the middle term for robbery plus one year for use of the knife but with a referral to department 95 for CRC.’   The court asked, ‘Consideration.’   The response was affirmative and the trial court inquired,

“ ‘And do you understand that if CRC does not accept you, you'll be brought back to this court and then immediately sent to the state penitentiary for four years?’

“Appellant responded in the affirmative and proceeded with waivers.

“Appellant was told he would be sentenced to four years state prison but with a referral to department 95 for referral to CRC.   Appellant was told,

“If you're admitted to CRC, then you'll go on that particular program.   I think there is a seven-year tail on that.   It does not mean seven years in custody but it could be.   That is something I have to tell you.

“ ‘If you go to state prison at sometime, you'll get out on parole․’ ”

Apparently unbeknownst to both the trial judge and appellant's trial counsel, at the time he entered the conditional plea appellant was ineligible as a matter of law for assignment to CRC because of the knife use enhancement.   (Welf. & Inst.Code, § 3052.)   Accordingly, appellant was returned to the trial court without ever appearing in department 95 for that court to exercise its discretion regarding a possible assignment to CRC.

Penal Code section 1018 2 provides a trial court may allow a defendant to withdraw a guilty plea upon a showing of good cause.3  The traditional categories of “good cause” are “ ‘mistake, ignorance, or inadvertence’ ” although it also includes “ ‘any other factor overreaching defendant's free and clear judgment.’ ”  (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797, 114 Cal.Rptr. 596, 523 P.2d 636 [italics added].)

The trial court's denial of a withdrawal motion is reviewed under an “abuse of discretion” standard.  (People v. Grey (1990) 225 Cal.App.3d 1336, 1340, 275 Cal.Rptr. 572;  People v. Superior Court (Giron), supra, 11 Cal.3d 793, 798, 114 Cal.Rptr. 596, 523 P.2d 636.)   However, section 1018 requires that its provisions “shall be liberally construed to effect these objects and to promote justice.”  (§ 1018.)   And, an appellate court is not merely to “rubberstamp a decision of the trial court when the totality of the circumstances indicates the court's discretion has been abused.”  (People v. Harvey (1984) 151 Cal.App.3d 660, 667, 198 Cal.Rptr. 858.)

In this instance, appellant seeks relief from his guilty plea on grounds of “mistake.”   When he entered a plea conditioned on department 95 review of his suitability for CRC placement, he mistakenly thought he was statutorily eligible for that consideration.   In fact, he was not.   Hence the entire statement about his being referred to department 95 for possible commitment to CRC and, only if department 95 rejected him, a return to the sentencing court for execution of the suspended sentence—a statement which took up most of the bargain the trial court announced—was a complete farce.

Some idea of what should qualify as a “mistake” can be drawn from civil contract law.   After all, a plea bargain is a specialized version of a contract.   A lesser “mistake” might justify withdrawal of a guilty plea than would be required for recision of a civil contract.   Nevertheless, clearly any mistake so serious it would render a civil contract voidable should be sufficient to require a trial court to honor a defendant's motion to withdraw a guilty plea.

This is such a classic case of “mistake” justifying rescission that one does not have to go beyond the black letter law to appreciate the trial court clearly abused its discretion.   Mistake is defined in Civil Code section 1577 in the following terms:  “Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in:  [¶] 1.   An unconscious ignorance or forgetfulness of a fact past or present, material to the contract;  or, [¶] 2.   Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed.”

Witkin summarizes the effect of a “mistake” as follows:  “If there is mutual assent as to the subject matter and parties to the agreement, a contract results;  but it may be voidable and subject to rescission where there is a harmful mistake as to some basic or material fact which induced the plaintiff to enter into it․  [¶] [The mistake] must affect in some material way one of the essential elements of the contract, such as the parties, subject matter, offer or acceptance, so that it clearly appears that the complaining party would not have entered into it except for his mistaken belief.  (Citations omitted.)․  [¶] The usual remedy of the mistaken party is rescission and restitution.”  (Witkin, Summary of Cal.Law (9th ed. 1987) Contracts, § 368, p. 334, emphasis in original, italics added.)

This doctrine of mistake has been applied in a variety of contexts.   For instance, the courts approved rescission of a liability release when it was determined both parties were mistaken about the seriousness of plaintiff's injuries (Union Pac. R.R. Co. v. Zimmer (1948) 87 Cal.App.2d 524, 529, 197 P.2d 363.).   Similarly, a lease was ruled unenforceable when it was found the lessee had been unaware of city building code provisions which meant he could not use the second floor of the leased building for his proposed purpose, a restaurant and bar.   Notably, the court reached this decision despite lease provisions stating the premises were leased “as is” and the lessee was to make all alterations at his own expense.  (Williams v. Puccinelli (1965) 236 Cal.App.2d 512, 46 Cal.Rptr. 285;  see also 50 A.L.R.3d 1188 [mistake as to physical condition of realty].)

As Puccinelli suggests, a contract is deemed voidable when there is a mistake of law rather than of fact.  “[I]gnorance as to legal rights or obligations under a contract (mistake of law) is treated in much the same way as a mistake of fact.  (Citations omitted)” (Witkin, Summary of Cal.Law (9th ed., supra ) Contracts, § 378, p. 344.)   Consistent with this principle, a mistake of law allowed a lessee to rescind a lease because the parties were ignorant of a city ordinance prohibiting the construction of the type of structure the lessee intended to build on the land.  (Hannah v. Steinman (1911) 159 Cal. 142, 112 P. 1094;  see also Benson v. Bunting (1900) 127 Cal. 532, 59 P. 991 [party mistaken about statute governing redemption rights sold in foreclosure];  Spear v. Farwell (1935) 5 Cal.App.2d 111, 42 P.2d 391, [husband and wife's mistaken belief that bank deposit did not create joint tenancy];  Adams v. Heinsch (1948) 89 Cal.App.2d 300, 200 P.2d 796 [mistaken belief federal regulations did not place limitations on lease];   Stafford v. California C.P. Growers (1938) 11 Cal.2d 212, 217, 78 P.2d 1150 [reformation allowed because of mistake about legal effect of contract];   Gregory v. Clabrough's Executors (1900) 129 Cal. 475, 478, 62 P. 72 [restitution allowed because of mistaken interpretation of mortgage].)

Apparently none of the people present in the courtroom when appellant entered his plea were aware of the statutory provision which made it impossible for him to be considered for CRC placement.  (I refuse to believe the trial judge or the prosecutor or the defense counsel deliberately concealed this legal fact from him.)   Thus, this is a case of mutual mistake of law.   However, even if appellant were the only one laboring under a mistaken view of the law, that would not affect his right to relief.   As Witkin points out, “Neither C.C. 1577 nor C.C. 1689 requires that mistake of fact be mutual.   Mistake by one party is, under some circumstances, ground for relief.”  (Witkin, Summary of Cal.Law (9th ed., supra ) Contracts, § 370, p. 337, emphasis in original.)

Applying these well-settled principles of civil contract law to appellant's plea bargain, it is apparent he would be entitled to rescission of that contract.   Although the majority opinion attempts to imply appellant had other reasons for agreeing to plead guilty, I believe a fair reading of the record of the proceedings on the plea incorporated in this dissent indisputably demonstrates appellant's primary object in agreeing to plead guilty was the opportunity to be considered for CRC placement in lieu of going to prison.   The record, even as interpreted by respondent in its brief, makes that clear.

What happened here is akin to what happened to a lessee of land in Hannah v. Steinman, supra, 159 Cal. 142, 112 P. 1094.   That lessee's primary purpose, known to both parties, was to build a wooden structure on the leased land.   He was allowed to rescind the lease when it was learned a law—unknown to either party—made it impossible for him to realize that purpose.   For the same reason, appellant is entitled to “rescind” his plea bargain contract.   The primary object of his plea bargain likewise was foiled because of ignorance of a law which made it impossible for him to achieve that object, that is, to be considered for CRC placement.

From the above discussion, it is not surprising to find appellate courts have allowed defendants to withdraw guilty pleas in circumstances similar to appellant's case.  In People v. Coley (1968) 257 Cal.App.2d 787, 65 Cal.Rptr. 559 (disapproved on other grounds People v. Delles (1968) 69 Cal.2d 906, 73 Cal.Rptr. 389, 447 P.2d 629) a defendant pled guilty under an agreement he would enter a narcotics rehabilitation program.   Not unlike the instant case he was found ineligible for that program because of facts and circumstances which antedated the plea and despite a mutual but mistaken belief he qualified, and not because of his own failure to cooperate.   When he was returned to the trial court the judge denied defendant's motion to withdraw the guilty plea.   The appellate court reversed, finding this denial to be an abuse of discretion.

Similarly, in People v. Cortez (1970) 13 Cal.App.3d 317, 332, 91 Cal.Rptr. 660, a defendant pled guilty in order to obtain treatment for his mental condition.   Although this objective was achieved initially, not long after his commitment to a state hospital he was discharged as not amenable to treatment because he could not communicate in English.   The trial court denied his motion to vacate the guilty plea and ensuing judgment.   But the appellate court reversed because of a mutual mistaken assumption the defendant would be eligible for the treatment program.  “The failure to afford the promised diagnosis and treatment necessitates setting aside the judgment and plea.”   (13 Cal.App.3d at p. 333, 91 Cal.Rptr. 660.)

It is true the plea bargain in the instant case did not contemplate a guarantee appellant would be accepted in the CRC.   Department 95 must take a number of variables into account in determining a defendant's eligibility for that placement, including factors such as the availability of positions in the program, the nature and status of defendant's addiction to narcotics, his amenability to treatment, and the like.   Appellant realized he ran the risk department 95 would reject him for one of a number of physical or psychological reasons.   If that had happened he still would have received what he bargained for and the plea bargain “contract” would remain enforceable against him.   However, appellant did not receive what he bargained for—a department 95 evaluation of his application for CRC placement.   That is because at the time of the plea bargain he was not statutorily eligible even to be considered by department 95 for CRC.   As a result, an essential term of the plea bargain from appellant's perspective was entirely missing from the contract.   If appellant had been aware of this legal fact it is unlikely he would have agreed to the four-year sentence embodied in the bargain.   It was his unilateral or mutual mistake of law which led him to agree to a plea contract which did not and could not afford him the only advantage he sought and supplied the primary consideration for his agreement to its other terms.   Accordingly, appellant would be entitled to rescind this plea bargain under ordinary principles of civil contract law and the trial court abused its discretion in denying his motion to withdraw his guilty plea.

Evidently recognizing the weakness of their position on the merits, the majority attempt to construct a new procedural barrier to defendants seeking to withdraw guilty pleas.   Having constructed that barrier they then find appellant did not jump high enough or in precisely the right configuration to warrant consideration of his request.

The majority holds defendants must make a full-fledged motion requesting the court to exercise its discretion to withdraw their guilty pleas.  (Maj. op. at p. 79.)   They then review the record and find appellant did not file a written motion or even utter the magic words “I move․,” or the like.   Consequently, he failed to comply with the procedural requirements for seeking a withdrawal of a guilty plea.

I first quarrel with the majority's requirement a defendant file a written motion or, at a minimum, make a technically precise oral motion.   The code lays down no such requirement.   Instead, it avoids any of the technical terms which typically surround motion practice.  “On application of the defendant at any time before judgment the court may, ․ for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted․  This section shall be liberally construed to effect these objects and to promote justice.”  (§ 1018, italics added.)

The majority opinion converts the phrase “application of” into “formal motion made by.”   Then it completely disregards the last sentence requiring the entire section, including its procedural provisions, to be “liberally construed” in such a way as to “promote justice.”   The introduction of hypertechnical procedural hurdles is seldom, if ever, the way to “liberally construe” a law.   Nor is it the normal way to “promote justice.”

A liberal construction of the term “application” would encompass any expression by a defendant to the court of a desire to withdraw a guilty plea.   That expression would not have to assume any particular form, nor would it have to be couched in certain “magic words.”

In any event, under any reasonable, to say nothing of liberal, construction of the term, appellant applied for relief from his guilty plea.   Appellant engaged in a rather lengthy dialogue with the trial judge seeking specific (or alternative) performance of the plea bargain.   Appellant requested the court to send him to CRC, despite the law which made him ineligible, or at least to some rehabilitative placement instead of prison.   During this discussion, appellant explained he was not receiving what he was promised in the plea bargain because, unbeknownst to him, he was ineligible for consideration for CRC placement.   But the trial court made it abundantly clear it planned to enforce the sentence agreed to as part of the plea bargain no matter what.

So the grounds for withdrawing the guilty plea had been stated and were before the court.   Moreover, the court had already indicated these grounds were insufficient.   It was against this background and in this context appellant expressed his application to withdraw his guilty plea, an application he had reason to know was futile given the judge's earlier statements.   As the majority opinion reports, when it became clear the court would not approve appellant's request for specific (or alternative) enforcement of the plea bargain appellant asked:

“Is there any chance I take my plea back?   That's out?”

To which the trial judge replied, consistent with his earlier position:  “That's out.   The court suspended the state penitentiary sentence.   That suspension—the sentence will be imposed at this point.”  (Italics added.)

This exchange clearly qualified as an application to withdraw a guilty plea and an outright rejection of that application without bothering to hear evidence or argument from either side.   What more could a defendant be expected to do when confronted with an obviously impatient, determined judge who already had made up his mind?   Under the majority's view, he evidently should have ignored the trial judge's stern denial and piped up, “Well, in that case, I move (one of those magic words) that you exercise your discretion to allow me to withdraw my guilty plea”.   Then, no matter how the trial court responded to that statement, he should have proceeded to tender evidence and argument demonstrating his entitlement to withdraw his guilty plea.   It would have been too much to have expected such bravery from an experienced trial lawyer.   It hardly “promotes justice” to impose such a burden on a lay defendant.

The majority makes much of the fact appellant did not accompany his application with argument nor did the prosecutor make any argument.   But that was because the judge cut off any opportunity for argument by either side.   In essence, the judge refused to entertain appellant's application—and the argument from both sides which might have accompanied consideration of that application.

The other cases the majority opinion cites which discuss the essential characteristics of a motion are inapposite.   None of them purport to impose those rigidities on an application to withdraw a guilty plea before judgment under section 1018, which application procedure is to be construed liberally and in such a way as to promote justice.

By its nature, the need and opportunity to apply for withdrawal of a guilty plea may arise in the midst of a court proceeding.   Often the defendant will first learn at the sentencing hearing of the facts which suggest his plea bargain is not what he thought it was or that its terms will not be honored.   On other occasions, the defendant may seek specific performance of the agreement or some compromise performance of the agreement and will not learn whether the court will honor that request until judgment is about to be pronounced.   In these and like situations, it may become necessary to lodge the application for withdrawal of the guilty plea in the form of an instantaneous, informal oral request.

That is what happened here.   The defendant first asked for specific performance of the bargain (or at least alternative performance).   It was only when that request was denied that he had reason to seek to withdraw his guilty plea.   But with the trial court about to implement the sentence appellant had no time to file a formal motion or submit anything to the court.   He only had time to do what he did—ask the court whether he could withdraw the plea.

This is akin to what happened in People v. Ribero (1971) 4 Cal.3d 55, 92 Cal.Rptr. 692, 480 P.2d 308.   In that case a defendant told the court he had only pled guilty because he had been promised he would be assigned to a narcotics rehabilitation program.   When the court said he was going to prison instead, the defendant immediately asked to change his plea.   Although the Supreme Court opinion does not quote the precise language of the exchange between defendant and trial court, it is apparent there was no formal motion but merely an instantaneous verbal request.   Yet the high court treated it as an effective invocation of section 1018 and referred to it as an “application” several times in the opinion.

This interpretation is not surprising since section 1018 itself is geared to allow this sort of instantaneous, oral application.   By its terms, section 1018 permits the application to be made at any time until judgment is entered.   It does not provide that “by motion made ten days before [judgment or sentencing or some other event], a defendant may apply to withdraw a guilty plea.”   Instead it provides relief may be granted “[o]n application of the defendant at any time before judgment.”  (§ 1018, italics added.)   This language has no limitation or qualification.   The gavel could be in midair on its way to seal the judgment against a defendant.   Yet if in that final split second he or she makes application, that is, asks to withdraw a guilty plea, under the plain language of section 1018 that application is timely and must be considered.   It is difficult if not impossible to construe language permitting an application to be made in the split second before an event happens as requiring that application to be in writing or in some ritualistic form, in the absence of specific language requiring the writing or the ritual.

Furthermore, even if all of the technicalities the majority advocates applied to an application to withdraw a guilty plea, appellant cannot be faulted for not making a motion in the proper form in this case.   The trial court said in no uncertain terms it would not entertain such a motion in whatever form it was presented.   Appellant should not be denied relief on appeal for failing to tender what would have been a futile motion.   Nor should the trial court be rescued from its failure to exercise its discretion properly when it refused to either hear or grant the request to withdraw the guilty plea.

In my opinion, the trial court abused its discretion both in failing to even consider appellant's application to withdraw his guilty plea and, on the record before it and this court, in denying the request.   While no hearing was held on appellant's application to withdraw his plea, all the facts and most of the argument were on the record.   Accordingly, this is one of those rare instances where it is possible to rule on the merits even though the trial court did not have a hearing on the merits.   The evidence of mistake of law was so clear and the grounds for relief so apparent any denial of appellant's application in this case would constitute an abuse of discretion.

Since I conclude the trial court clearly abused its discretion in refusing to hear and in denying appellant's application to withdraw his plea of guilty, I find it unnecessary to discuss at any length appellant's alternative grounds for appeal—that his trial counsel failed to render effective assistance of counsel because he failed to apprise appellant he was legally ineligible to be considered for CRC placement.   I do note, however, it is one of the clearest examples of ineffective assistance one could conjure and also one of the clearest examples of that ineffective assistance prejudicing a defendant.   If defense counsel was not aware of the statutory provision which rendered his client's plea bargain a farce as a matter of law, he was merely poorly prepared and ineffectual.   If he was aware of this statute and failed to apprise his client of its existence thereby allowing him to agree to a meaningless plea bargain, the defense counsel was irresponsible.   In either case, appellant was denied his right to effective assistance of counsel and the opportunity to withdraw the guilty plea attributable to that denial.  (See People v. Harvey (1984) 151 Cal.App.3d 660, 198 Cal.Rptr. 858 [withdrawal of guilty plea required where trial counsel failed to advise defendant of potential defense].)

Whether based on a trial court's abuse of discretion or ineffective assistance of counsel, an error in denying a plea withdrawal is not subject to harmless error analysis under Watson or any other standard but instead is reversible per se.   As the Supreme Court held in the analogous context of an order to specifically enforce a plea bargain:  “[T]he harmless error test is inapplicable to a situation involving failure to fulfill the terms of a plea bargain.   Defendant's entitlement to the benefit of his bargain cannot be predicated on the assumption that violation of the bargain must result in some measurable detriment.   Because a court can only speculate why a defendant would negotiate for a particular term of a bargain, implementation should not be contingent on others' assessments of the value of the term to defendant․  [¶] “Moreover, the concept of harmless error only addresses whether the defendant is prejudiced by the error.   However, in the context of a broken plea agreement, there is more at stake than the liberty of the defendant or the length of his term.  ‘At stake is the honor of the government [,] public confidence in the fair administration of justice, and the efficient administration of justice․’  (United States v. Carter (4th Cir.1972) (en banc) 454 F.2d 426, 428;  [citation omitted].)   We conclude that the Watson test is inapplicable to this case.”  (People v. Mancheno (1982) 32 Cal.3d 855, 865–66, 187 Cal.Rptr. 441, 654 P.2d 211.)

In this case, the “particular term” of the plea bargain most vital to appellant was impossible to implement because of a law of which appellant was unaware—presumably along with the judge and lawyers present.   Thus, the major consideration the government offered which prompted appellant to enter the plea contract and plead guilty completely evaporated because of a mistake of law.   Since the government cannot honor its bargain, the “honor of the government” and “public confidence in the fair administration of justice” both dictate that as a bare minimum the courts allow appellant to withdraw from the contract and thus restore to him his constitutional right to trial by jury.


1.   Unless otherwise noted, statutory references are to the Penal Code.

2.   The preliminary hearing transcript and probation report provide the factual background.

3.   Burglary (1978), forgery (1982), Health & Safety Code sections 11352 (1984) and 11350 (1984) [separate cases], robbery and grand theft (1984), and Health & Safety Code section 11352 (1987).

4.   The April 30, 1991, minute order makes no reference to such a motion.

1.   Section 3051 provides:“Upon conviction of a defendant for any crime in any superior court, or following revocation of probation previously granted, and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.“Upon the filing of such a petition, the court shall order the defendant to be examined by one physician;  provided that the examination may be waived by a defendant if the defendant has been examined in accordance with Section 1203.03 of the Penal Code and such examination encompassed whether defendant is addicted or is in imminent danger of addiction, and if the defendant is represented by counsel and competent to understand the effect of such waiver.   At the request of the defendant, the court shall order the defendant to be examined by a second physician.   At least one day before the time of the examination as fixed by the court order, a copy of the petition and order for examination shall be personally delivered to the defendant.   A written report of the examination by the physician or physicians shall be delivered to the court, and if the report is to the effect that the person is not addicted nor in imminent danger of addiction, it shall so certify and return the defendant to the department of the superior court which directed the filing of the petition for the ordering of the execution of the sentence.   Such court may, unless otherwise prohibited by law, modify such sentence or suspend the imposition of such sentence.   If the report is to the effect that the defendant is addicted or is by reason of the repeated use of narcotics in imminent danger of addiction, further proceedings shall be conducted in compliance with Sections 3104, 3105, 3106, and 3107.“If, after a hearing, the judge finds that the defendant is a narcotic addict, or is by reason of the repeated use of narcotics in imminent danger of becoming addicted to narcotics, the judge shall make an order committing such person to the custody of the Director of Corrections for confinement in the facility until such time as he or she is discharged pursuant to Article 5 (commencing with Section 3200), except as this chapter permits earlier discharge.   If, upon the hearing, the judge shall find that the defendant is not a narcotic addict and is not in imminent danger of becoming addicted to narcotics, the judge shall so certify and return the defendant to the department of the superior court which directed the filing of the petition for the ordering of execution of sentence.   Such court may, unless otherwise prohibited by law, modify such sentence or suspend the imposition of such sentence.“If a person committed pursuant to this section is dissatisfied with the order of commitment, he or she may within 10 days after the making of such order file a written demand for a jury trial in compliance with Section 3108.”

2.   Unless otherwise indicated, all future references are to the Penal Code.

3.   Section 1018 provides:“Unless otherwise provided by law every plea must be entered or withdrawn by the defendant himself in open court.   No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall any such plea be received without the consent of the defendant's counsel.   No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him of his right to counsel and unless the court shall find that the defendant understands his right to counsel and freely waives it and then, only if the defendant has expressly stated in open court, to the court, that he does not wish to be represented by counsel.   On application of the defendant at any time before judgment the court may, and in the case of a defendant who appeared without counsel at the time of the plea, the court must, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.   Upon indictment or information against a corporation a plea of guilty may be put in by counsel.   This section shall be liberally construed to effect these objects and to promote justice.”

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.

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