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

The PEOPLE, Plaintiff and Respondent, v. Mark Wade MEYERS, Defendant and Appellant.

No. D020417.

Decided: June 16, 1995

Elizabeth A. Missakian, San Diego, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Garrett Beaumont and Barry J.T. Carlton, Deputy Attys. Gen., for plaintiff and respondent.

Appellant Mark Wade Meyers was convicted of one count of residential burglary with a true finding on a prior serious felony allegation.   He appeals, arguing vindictive prosecution, error in denying a motion to recuse the district attorney's office, insufficient evidence, error in excluding statements made by appellant and abuse of discretion in failing to grant probation.

In the published portion of this opinion we find appellant made a prima facie case that an offered plea bargain was increased by the prosecution based on improper considerations.   We hold, however, no showing of prejudice was made since appellant neither asserted nor proved he would have accepted the original plea offer.   We remand for a hearing at which the People can assert any proper justification for the change in the plea offer and where, if the People are unable to do so, appellant can demonstrate he would have accepted the original offer.


A. Prosecution Case

In the early afternoon of July 22, 1993, Paul Lauretta was working on a boat in his backyard.   Lauretta noticed a man he would later identify as appellant standing in the alley, looking at the windows of an apartment occupied by a Mary Nunez.   Lauretta walked into the alley to let the man know he had seen him.   Lauretta returned to his yard but continued watching.

Lauretta noticed the man had a screen in his hand from one of Nunez's windows.   He saw the man swing his arm at one of the windows and heard the sound of breaking glass.   Lauretta noticed something wrapped around the arm the man used to break the window.   The man then placed his arm inside the window, looked around, went behind a house, returned and looked around again.   Lauretta called the police but by the time they arrived the man was gone.

Later in the day Lauretta again saw the man in the alley.   The police were called, arrived, apprehended appellant and, after Lauretta identified him as the man who broke Nunez's window, placed the man under arrest.

B. Defense Case

Appellant offered evidence he was intoxicated at the time of his arrest in support of a claim he harbored no specific intent to commit theft when he broke the window.   Appellant also argued there was serious doubt concerning both Lauretta's identification of him as the man who broke the window and of Lauretta's claim appellant had placed his arm inside the window.


A. Vindictive Prosecution

Appellant argues the trial court erred in denying his motion, based on a claim of vindictive prosecution, to dismiss the information or, in the alternative, to strike the allegation of a prior serious felony conviction (Pen.Code,2 § 667, subd. (a)).

a. Background

Prior to trial appellant filed a motion seeking dismissal of the information on the grounds of vindictive prosecution.   The motion was based on the declaration of a deputy public defender who represented appellant at the preliminary hearing.   In the declaration counsel noted that “having apparently decided to settle the case,” appellant sought and was granted a disposition hearing date of August 12, 1993.   On the date of the hearing, the prosecutor noted he had information concerning a prior conviction of appellant and was granted a continuance to investigate.   While the prosecutor conducted his investigation, defense counsel spoke by telephone to prosecution witness Lauretta.   Lauretta told counsel he had been instructed by a deputy district attorney, Gwynn, not to speak to anyone about the case except representatives of the district attorney's office.3

Counsel's declaration noted that on August 19, 1993, the prosecutor offered a bargain in which appellant would plead guilty to the single count of burglary and stipulate to a six-year term and in return the prosecutor would not file an allegation appellant had suffered a prior serious felony conviction.

At the disposition hearing, counsel voiced to the prosecutor and the judge his “distress” with what appeared to be a deputy district attorney's instruction to a witness not to speak to the defense.   Counsel states the prosecutor became upset, stated deputies are instructed how to deal with witnesses and would not act as counsel suggested.   The declaration states the prosecutor said if counsel wanted to make matters worse for his client that was fine, the People would not strike the prior and would now require a stipulated term of seven years.   Counsel voiced his unhappiness with the attitude taken by the prosecutor concerning the witness's allegation.   The prosecutor then stated “fine,” the offer was now a nine-year stipulated term.

On August 19, 1993, appellant sought a continuance of the preliminary hearing to allow a deposition of Lauretta and a motion for recusal of the district attorney's office or other sanctions appropriate in light of matters revealed by the deposition.   On August 24, 1993, the request for continuance was denied.

Appellant's vindictive prosecution motion cited relevant federal and state authority and argued the prosecutor improperly changed his offered bargain merely because of a “spat” with defense counsel.   Appellant argued such action was vindictive, denied him due process and asked the information be dismissed.

In response, the district attorney argued that even assuming the truth of the matters asserted in the declaration, there was no basis for dismissal of the information.   The prosecutor argued no presumption of vindictiveness arises concerning action taken by the prosecutor before trial and no prima facie case of prosecutorial vindictiveness had been shown.

In his reply, appellant argued if the information were not dismissed, the court in the alternative should strike the allegation of a prior serious felony conviction.

At the hearing on the motion the trial court concluded the defense was precluded from making a claim of vindictive prosecution based on actions taken before jeopardy had attached.   The court also noted, however, that a case of vindictive prosecution had not been made.   The court noted the prosecutor who made the statements on which the motion was based did not make the final decision on what bargain would be offered or accepted.4  The court noted that in any case the facts did not warrant dismissal of the information.

Counsel noted the People's offer remained as a stipulated term of nine years.   The court replied counsel was merely assuming the present status of the offer was based on the events occurring at the disposition conference before the preliminary hearing.   The court noted much routinely occurs between the filing of the complaint and the filing of the information that could explain the People's position.   The court denied the motion to dismiss and the motion to strike the allegation of a serious prior felony conviction.

b. Discussion

 A denial of due process in the form of a vindictive prosecution occurs when a charging decision is motivated by a desire to punish the defendant for doing something the law allows him to do.  (People v. Bracey (1994) 21 Cal.App.4th 1532, 1549, 26 Cal.Rptr.2d 730.)   When such an act occurs after jeopardy has attached, for example, when after a successful appeal the defendant is sentenced to a greater term than imposed before the appeal (see North Carolina v. Pearce (1969) 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656), generally a presumption of vindictiveness arises.   The burden is placed on the State to demonstrate some objective change of circumstance justifying the charging or sentencing decision.   (People v. Bracey, supra, 21 Cal.App.4th at pp. 1544–1545, 26 Cal.Rptr.2d 730;  People v. Johnson (1991) 233 Cal.App.3d 425, 446–449, 284 Cal.Rptr. 579.)

 However, when the claimed vindictive action occurs before the commencement of trial, no presumption of vindictiveness applies even where there is some appearance of vindictiveness.  “California decisions have refrained from presuming vindictiveness in a prosecutor's pretrial charging determinations.  [Citations.]  Such a presumption would be unworkable in the pretrial context:  since section 1009 allows the prosecution to amend the charges against a defendant at any time to include offenses shown by evidence at the preliminary hearing, and since a defendant can assert innumerable pretrial rights, a defendant could assert that retaliation was the motive for any amendment in the charges.  [Citation.]  Moreover, as the United States Supreme Court has observed, ‘[t]here is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting.   In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance.’  [Citation.]”  (People v. Johnson, supra, 233 Cal.App.3d at pp. 447–448, 284 Cal.Rptr. 579;  see also People v. Hudson (1989) 210 Cal.App.3d 784, 781–788, 258 Cal.Rptr. 563.)

 Since no presumption of vindictive prosecution exists concerning a pretrial charging decision, a defendant must show with objective evidence that the State's charging decision was based on improper considerations.  (People v. Bracey, supra, 21 Cal.App.4th at p. 1549, 26 Cal.Rptr.2d 730.)

 We conclude the defense presented a prima facie case that a plea bargaining decision was based on improper considerations.   The uncontradicted declaration of defense counsel did not simply note a temporal relationship between some charging decision and some action by the defense and speculate the two were linked, rather it recounted a ratcheting up of a plea offer based clearly on the prosecutor's anger at a defense suggestion another prosecutor had acted improperly.

While it is true the prosecutor who became angry and increased the plea offer was no longer on the case, it was also true that the offer he made remained.   Under such circumstances we conclude the defense presented all it reasonably could present.   It certainly had no access to the decision making process in the prosecutor's office that would reveal whether the eventual plea offer was based on legitimate considerations or merely continued the offer made by the angry deputy.

Faced with a prima facie case of vindictive prosecution, we conclude it was incumbent on the prosecution to offer, if it could, a justification for the increase in the plea offer unrelated to mere prosecutorial ire.   Without such an explanation and a determination there was a good faith basis for the change, it was error not to find vindictive prosecution.

 Having decided the trial court erred, we next must consider the questions of prejudice and remedy.   While appellant argued below for a dismissal of the information, there was no basis for such a remedy.   The alleged vindictive act affected only the manner in which the People were prepared to deal with the allegation of a prior felony conviction in the context of a plea bargain.   There was no basis for appellant's request for a dismissal of the information.

 Appellant's more reasonable request was that the court strike the allegation of a prior conviction.   However, the claimed vindictive act of “upping the bargain” was only detrimental to appellant if he would have accepted the original offer.   There was no evidence, however, appellant would have accepted the original bargain if the court had stricken the enhancing allegation.   It simply appears appellant wished to proceed to trial in the enviable position of not having to face the allegation he had suffered a prior conviction.   Appellant was not entitled to such an advantage based on the claimed vindictive act.

 We conclude based on In re Alvernaz (1992) 2 Cal.4th 924, 937–940, 8 Cal.Rptr.2d 713, 830 P.2d 747 (Alvernaz ), that in order to prevail on a claim of vindictive prosecution with regard to a change in an offered plea bargain, the defendant is required to assert and the trial court must find that defendant would have accepted the original offer.   In Alvernaz the court dealt with a acts of ineffective assistance of counsel which lead a defendant to reject an offered plea bargain.   The court noted a component of a claim of ineffective assistance is prejudice.   The court stated that in order to establish prejudice in the context of a rejected plea bargain, “a defendant must prove there is a reasonable probability that, but for counsel's deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court.”  (Id. at p. 937, 8 Cal.Rptr.2d 713, 830 P.2d 747.)

There is no reason to apply a different rule in the present context.   Any vindictive act by the prosecution harmed the defendant by taking from him a particular plea bargain.   If the defendant had no intention of taking that bargain, its loss is of mere academic interest.

Given the above conclusions we remand the matter for a new hearing on appellant's claim of vindictive prosecution.   On remand the trial court shall determine if the change in the People's plea offer had a nonvindictive basis.   If the court finds it did, the original judgment shall be reimposed.   If the trial court finds no nonvindictive basis, then it shall determine if there is a reasonable probability appellant would have accepted the original offer.   If the trial court finds he would have accepted the offer, the court must determine if the plea bargain is acceptable to it.   If the bargain is acceptable to the trial court, then it shall resentence appellant pursuant to the terms of that bargain (Alvernaz, supra, 2 Cal.4th at pp. 937–941, 8 Cal.Rptr.2d 713, 830 P.2d 747.)

The process outlined differs in important respects from that defined in Alvernaz.  Alvernaz allows the People to either submit the original plea bargain to the trial court for approval or to retry the defendant.   While useful and fair in the context of a bargain lost because of ineffective assistance, the process makes less sense when the bargain disappears because of prosecutorial vindictiveness.

In Alvernaz the court noted that specific enforcement of a failed plea bargain is generally disfavored because specific enforcement limits the judge's sentencing discretion in light of additional or changed information or circumstances between the acceptance of the plea and sentencing.  (Alvernaz, supra, 2 Cal.4th at p. 942, 8 Cal.Rptr.2d 713, 830 P.2d 747, citing People v. Mancheno (1982) 32 Cal.3d 855, 861, 187 Cal.Rptr. 441, 654 P.2d 211;  People v. Calloway (1981) 29 Cal.3d 666, 175 Cal.Rptr. 596, 631 P.2d 30;  People v. Kaanehe (1977) 19 Cal.3d 1, 13, 136 Cal.Rptr. 409, 559 P.2d 1028;  People v. Johnson (1974) 10 Cal.3d 868, 873, 112 Cal.Rptr. 556, 519 P.2d 604.)

Likewise the court notes specific enforcement would interfere with the prosecutor's legitimate exercise of discretion with regard to the negotiation and withdrawal of offered plea bargains.   The court acknowledges that after a trial the prosecutor may see the case from a different perspective and reasonably conclude the sentence contemplated in the original plea bargain no longer in the public interest.   The court states:  “Given the changed complexion of the case after trial and conviction, the prosecutor should not be locked into the proposed pretrial disposition, appropriate as it may have been at the time.”  (Alvernaz, supra, 2 Cal.4th at p. 943, 8 Cal.Rptr.2d 713, 830 P.2d 747.)

 When, however, a plea offer was changed or withdrawn because of prosecutorial vindictiveness, it is not an appropriate remedy to simply give the People the option of retrying the defendant.   At the cost of a retrial the People can simply continue to indulge a vindictive predilection.   In the case of a vindictive change or withdrawal of a plea bargain, the trial court must specifically enforce the original bargain unless the court concludes based on information then before it that such enforcement would not be in the public interest.

Alvernaz, in discussing the prejudice the defendant must demonstrate, states:  “[A] defendant must prove there is a reasonable probability that [the plea bargain] ․ would have been approved by the trial court.”  (Alvernaz, supra, 2 Cal.4th at p. 937, 8 Cal.Rptr.2d 713, 830 P.2d 747.)   This need for a showing that the bargain would have been approved at the time the original offer was made, however, does not mean a trial court, after a finding of vindictive prosecution, is required to enforce the bargain if it concludes the bargain is not in the public interest.   The trial court may properly conclude, based on additional information or changes in circumstance, that a bargain, acceptable at the time originally offered, can no longer be approved.   The trial court's duty to act in the public interest cannot be compromised by the acts of the parties.

The case is remanded for a new hearing as outlined above on appellant's claim of vindictive prosecution.



The matter is reversed and remanded for a new hearing on the claim of vindictive prosecution consistent with the views contained in this opinion.


FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   All parties would later agree Lauretta had used the claim of such an instruction not to speak as a means of avoiding discussion with counsel.

4.   The deputy district attorney who had changed the offer at the dispositional hearing was no longer the prosecutor on the case.

FOOTNOTE.   See footnote 1, ante.

BENKE, Associate Justice.

KREMER, P.J., and HUFFMAN, J., concur.