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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Kenneth REYNOLDS, Defendant and Appellant.

No. E006889.

Decided: July 23, 1990

Quin Denvir, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Pat Zaharopoulos and Robert M. Foster, Supervising Deputy Attys. Gen., and Tim Nader, Deputy Atty. Gen., for plaintiff and respondent.


Robert Kenneth Reynolds entered a plea agreement in which he pleaded guilty to manufacture of methamphetamine (Health & Saf.Code, § 11379.6) and possession of methamphetamine (Health & Saf.Code, § 11377) and admitted one prior felony conviction (Pen.Code, § 667.5, subd. (b)).  A charge of being under the influence of a controlled substance (Health & Saf.Code, § 11377) and a second prior felony allegation were dismissed.   The agreement provided that Reynolds would receive the midterm of five years for manufacture of methamphetamine with a consecutive one year enhancement for the prior offense and a concurrent two year term for possession.   Under the agreement, Reynolds was released on his own recognizance pending sentencing on the condition that he assist law enforcement agencies.   If Reynolds provided information which led to the filing of three felony complaints charging manufacture or conspiracy to manufacture methamphetamine, execution of the six-year sentence would be suspended and Reynolds would be put on probation for five years, with no additional time in custody.1  The trial court approved the plea agreement.

Reynolds failed to provide the information specified in the agreement, and he moved to withdraw and change his plea.   The court denied the motion after hearings and then sentenced Reynolds under the agreement.

On appeal, Reynolds contends that the plea bargain must be set aside because it was an unenforceable illegal contract, and the trial court failed to hold a Marsden 2 hearing.

 Necessity of Objection in Trial Court.   Respondent argues that Reynolds never challenged the legality of the plea bargain in the trial court, and he is thus barred from raising the issue on appeal.  (People v. McDowell (1972) 27 Cal.App.3d 864, 879, 104 Cal.Rptr. 181.)   However, if an issue raised for the first time on appeal involves solely a question of law arising from undisputed facts, we may consider the new theory.  (People v. Butler (1980) 105 Cal.App.3d 585, 588, 164 Cal.Rptr. 475.)   A plea bargain is contractual in nature and subject to general principles of contract law (People v. Alvarez (1982) 127 Cal.App.3d 629, 633, 198 Cal.Rptr. 167), and the legality of a contract “is a question of law to be determined from the circumstances of the particular case.  [Citations.]”  (Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.App.3d 832, 838, 247 Cal.Rptr. 340.)   Here, the critical facts are undisputed.

Moreover, appellate review is particularly appropriate when the new theory is of “ ‘considerable public interest’ or concerns ‘important issues of public policy.’ ”  (Pena v. Municipal Court (1979) 96 Cal.App.3d 77, 81, 157 Cal.Rptr. 584.)   It is a matter of first impression in this state whether a plea bargain which calls for the defendant to provide information to law enforcement agencies sufficient to lead to the filing of criminal complaints is a valid agreement.   We will therefore exercise our discretion to address the merits of the issue.

 Validity of Plea Agreement.   Reynolds characterizes the plea agreement as contrary to public policy and therefore void.   A plea bargain, which by its nature involves an agreement between the parties, is interpreted according to general contract law principles, including the principles of public policy.   (Alvarez, supra, 127 Cal.App.3d at p. 633, 198 Cal.Rptr. 167.)  “As a general proposition, ‘courts will not compel parties to perform contracts which have for their object the performance of acts against sound public policy either by decreeing specific performance or awarding damages for breach.  [Citations.]  This rule is not generally applied to secure justice between [the] parties [to that] contract, but from regard for a higher interest—that of the public, whose welfare demands that certain transactions be discouraged.  [Citations.]’  [Citation.]”  (Moran v. Harris (1982) 131 Cal.App.3d 913, 918, 182 Cal.Rptr. 519.)

Reynolds contends that the plea agreement was contrary to public policy because it required Reynolds to provide evidence sufficient to produce a specified legal result, i.e., the filing of criminal complaints.  “An agreement with a witness to pay him a fee contingent on the success of the litigation is against public policy and void.  [Citations.]”  (Van Norden v. Metson (1946) 75 Cal.App.2d 595, 599, 171 P.2d 485.)   Further, “[a] contract to procure evidence of a certain character or to establish a particular state of facts deemed necessary for success in a suit is void.  [Citations.]”  (1 Witkin, Summary of Cal. Law (9th ed. 1987), Contracts, § 611, p. 550.)   Such contracts are banned as against public policy because they “offer[ ] an inducement to perjury and tend[ ] to prevent the administration of justice,” (Pelkey v. Hodge (1931) 112 Cal.App. 424, 425, 296 P. 908) and raise “too great a temptation to practice deceit and to commit the too common crime of perjury” (Von Kesler v. Baker (1933) 131 Cal.App. 654, 658, 21 P.2d 1017).

In the criminal law context, the court in People v. Green (1951) 102 Cal.App.2d 831, 228 P.2d 867 reversed a conviction based chiefly on the prior testimony of an immunized accomplice.   The witness's immunity had been conditioned on his testimony at the preliminary hearing being such as would result in the defendant being held to answer.   The court stated, “A miscarriage of justice was occasioned through the use by the State of testimony which, because of the condition upon which immunity depended, was impure, dubious, and ‘tainted beyond redemption.’ ”  (Id., at p. 839, 228 P.2d 867.)

Likewise, in People v. Medina (1974) 41 Cal.App.3d 438, 116 Cal.Rptr. 133, the court held that “a defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.”  (Id., at p. 455, 116 Cal.Rptr. 133.)   In Medina, accomplices were granted immunity on condition that their trial testimony did not differ substantially from their previous tape-recorded statements.  (Id., at p. 450, 116 Cal.Rptr. 133.) 3

In People v. Sepeda (1977) 66 Cal.App.3d 700, 706, 136 Cal.Rptr. 119, the court condemned a police arrangement under which an informant was to receive compensation if his testimony at criminal trials resulting from his undercover activities was consistent with his earlier statements to authorities.   The court stated, “In our judgment such an arrangement places the informant under a strong compulsion to testify in a particular fashion and is conducive to perjury.”

 While we agree with these authorities that any agreement, including a plea agreement, which requires a defendant to provide testimony to produce a given result, is contrary to public policy, these authorities are distinguishable on their facts.   Here, Reynolds agreed to “provide information and/or assistance which results in 3 (three) felony complaints being filed for manufacturing or conspiracy to manufacture controlled substances ․”  (Emphasis added.)   The agreement contemplated that Reynolds could be called to appear at in camera hearings.   However, the agreement did not require Reynolds to testify in any particular way and thus did not create the danger of perjury.

Finally, we note that courts are reluctant to declare contracts void as contrary to public policy unless they are manifestly improper.   “ ‘Public policy’ is a vague, somewhat troublesome and malleable expression.   Frequently, it has been defined in conclusionary or visceral terms.   For example, ‘Public policy means the public good.   Anything which tends to undermine that sense of security for individual rights, whether of personal liberty or private property, which any citizen ought to feel is against public policy.’  [Citation.]  But it is exactly because of this subjective, amorphous definition and the variations in human response to the same facts, depending upon the philosophical or psychological perceptions of those involved, that courts have been cautious in blithely applying public policy reasons to nullify otherwise enforceable contracts.   This concern has been graphically articulated by the California Supreme Court as follows:  ‘It has been well said that public policy is an unruly horse, astride of which you are carried into unknown and uncertain paths, ․ While contracts opposed to morality or law should not be allowed to show themselves in courts of justice, yet public policy requires and encourages the making of contracts by competent parties upon all valid and lawful considerations, and courts so recognizing have allowed parties the widest latitude in this regard;  and, unless it is entirely plain that a contract is violative of sound public policy, a court will never so declare.  “The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt.”  [Citation.]  ․ “No court ought to refuse its aid to enforce a contract on doubtful and uncertain grounds.   The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of this state, or injurious to the morals of its people.”   [Citation.]’  [Citation.]   Although the law has a genius for creativity, correctly refusing to remain immobile in what is seen as the proper case [citation], juridical realization of the meandering nature of ‘public policy’ necessitates judicial restraint.  [Citation.]  Before labeling a contract as being contrary to public policy, courts must carefully inquire into the nature of the conduct, the extent of public harm which may be involved, and the moral quality of the conduct of the parties in light of the prevailing standards of the community.  [Citations.]”  (Moran, supra, 131 Cal.App.3d at pp. 919–920, 182 Cal.Rptr. 519.)

We note that agreements to compensate police informants have long been accepted as valid.   In Sepeda, supra, 66 Cal.App.3d 700, 136 Cal.Rptr. 119, the court observed, “At the outset, it should be noted that the police often are called upon to work with narcotic addicts and persons with past histories of unlawful narcotic activity in order to cope with the numerous and almost insurmountable problems caused by illegal traffic in drugs;  in this modern society drug traffic is a major contributor to other forms of crime and juvenile delinquency and, at times, extreme measures are needed to curb the illicit activity.   We also realize that often the police must pay such persons in order to secure their help in apprehending drug “peddlers” and in getting them to testify.   Accordingly, it has been held that there is no per se prohibition against a police agreement to pay an informant for undercover services upon condition that the informant testify at the criminal trial.   [Citations.]”  (Id., at p. 706, 136 Cal.Rptr. 119.)

We conclude that the plea agreement, which called for information, not testimony, did not contravene public policy.   The plea agreement is valid and enforceable.

 Marsden Error.   Sometime before Reynolds entered his plea of guilty, he wrote a letter to the court in which he referred to his distrust of his attorney.   On appeal, Reynolds argues that the trial court erred in failing to hold a hearing under Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 to investigate the reasons for Reynolds' dissatisfaction with his attorney.   This argument is not cognizable on appeal;  any Marsden error which does not go to the legality of the proceedings which resulted in the plea was waived by Reynolds's guilty plea.  (People v. Lobaugh (1987) 188 Cal.App.3d 780, 786, 233 Cal.Rptr. 683.)   Reynolds does not assert that the guilty plea was not made voluntarily and intelligently, nor does he contend that he received inappropriate advice from his attorney concerning the plea agreement.   Thus, Reynolds is foreclosed from raising the alleged Marsden error on appeal.  (Ibid.)


The judgment is affirmed.


1.   The form signed by the assistant district attorney and Reynolds, stated:  “Without any coercion or duress and without any promises or representations, I offer to assist law enforcement as follows:“Provide information &/or assistance which results in 3 (three) felony complaints being filed for manufacturing or conspiracy to manufacture controlled substances in violation of § 11379.6 H & S.”Reynolds initialled the following statements on the form:“I will not testify.“I will remain available and will appear at any time requested by law enforcement for in camera hearings.“I understand that full performance is required and ‘best effort’ is insufficient.“I can complete this assistance within _ days.“The District Attorney shall be the final arbiter of whether I have fully performed.”

2.   People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.

3.   In People v. Allen (1986) 42 Cal.3d 1222, 1251, fn. 5, 232 Cal.Rptr. 849, 729 P.2d 115 the court noted that the principles set forth in Green and Medina applied whether accomplice testimony was obtained under a plea bargain or a grant of immunity.

DABNEY, Acting Presiding Justice.

TIMLIN and McDANIEL *, JJ., concur.

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