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

PEOPLE of the State of California, Plaintiff and Respondent, v. ALLEN D. DELLES, Defendant and Appellant.

Cr. 6571.

Decided: March 18, 1968

Benjamin M. Davis, San Francisco, for appellant. Thomas C. Lynch, Atty. Gen., Robert R. Granucci, James B. Cuneo, Deputy Attys. Gen., San Francisco, for respondent.

Defendant Allen H. Delles appeals from a judgment of imprisonment in the state prison entered upon a plea of guilty of possession of marijuana, a violation of Health and Safety Code, section 11530.

He has not complied with Penal Code, section 1237.5 or rule 31(d), California Rules of Court, requiring a showing of reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings, and the filing of a certificate of probable cause for such appeal by the trial court.   The People contend that this failure bars the instant appeal.

At least as to one of his contentions Delles does not challenge the validity of his guilty plea.   He insists that the court erred in imposing a penalty greater than that agreed upon in consideration of his entering of the guilty plea.

 People v. Ward, 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881, holds that the provisions of Penal Code, section 1237.5 and rule 31(d) need not be complied with where a defendant is not challenging the validity of his plea of guilty but is asserting only that error occurred in the subsequent penalty proceedings.   Accordingly the appeal before us has been properly taken.

Delles contends that his plea of guilty was made pursuant to an agreement between the court and his attorney that he would receive probation on condition that he serve four months in the county jail.   It is conceded that such an agreement was made and that Delles entered his plea of guilty to the charge pursuant to that agreement.1

The record shows the following.   On April 10, 1967, Delles pleaded guilty to a charge of violation of Health and Safety Code, section 11530.   On motion of the district attorney three other charges and two allegations of prior convictions were dismissed.   On May 1, 1967, the court made an order granting Delles probation on condition that he serve four months in the county jail.   Thereafter the court was informed that on April 28, 1967, Delles had been arrested for selling marijuana to an undercover state agent, and that a gun had been found on the premises where he was arrested.2

Thereafter Delles appeared before the court.   He was told that the understanding that he would get probation and four months jail time was off because of the alleged sale of marijuana on April 28, 1967.   Delles then asked leave to withdraw his plea of guilty.   The following proceedings ensued:  “DEFENDANT DELLES:  * * * I would like to have my pleas changed because there was, supposedly, a deal made as far as sentencing goes.   THE COURT:  What was the deal?   DEFENDANT DELLES:  That I was to receive a guaranteed sentence.   THE COURT:  What was it?   DEFENDANT DELLES:  Four months.   THE COURT:  That's what I indicated to [Delles' attorney], you would get probation and four months on each count 3 and the four months condition to run concurrently.   That's true.”

Delles' motion for leave to withdraw his plea of guilty was denied.   The court thereafter revoked the probation granted May 1, 1957, and sentenced Delles to state prison for the term prescribed by law.   It is from that judgment that the instant appeal was taken.4

The problem before us appears to be one of first instance.   However, there are reported cases concerning agreements as to penalty to be imposed, which do not involve a claim of subsequent misconduct of a defendant.   In those cases it has been held that where such an agreement exists, or where the defendant has mistakenly, but reasonably, been led by a responsible state officer to believe that such an agreement exists, the real or apparent agreement will be honored or “the state in its solicitude for fairness will not accept the benefit of a plea so given.”  (People v. Gilbert, 25 Cal.2d 422, 443, 154 P.2d 657, 668.)   In such a situation “if a properly supported motion is seasonably made [the court will] grant him the privilege of withdrawing his plea of guilty and of reassuming the situation occupied by him before plea of any kind was entered.  * * * ‘[T]he law seeks no unfair advantage over a defendant, but is watchful to see that the proceedings under which his life or liberty is at stake shall be fairly and impartially conducted.’ ”  (People v. Campos, 3 Cal.2d 15, 17, 43 P.2d 274, 275;  see also People v. Wadkins, 63 Cal.2d 110, 114, 45 Cal.Rptr. 173, 403 P.2d 429;  People v. Schwartz, 201 Cal. 309, 257 P. 71.)

 Here the court entered into an agreement with Delles.   In consideration of his plea of guilty he was promised that he would be granted probation.   Such an agreement must either be respected or, if good cause exists therefor, rejected in its entirety.   If because of subsequent conduct of a defendant the agreement shall seem unwise or not in the interest of justice, the state may not insist that a defendant carry out his part of the bargain and at the same time disavow its own promise.   Under such circumstances reason and fairness require that the respective parties be restored to their preagreement positions.

 We therefore hold that the imposition of judgment of imprisonment in the state prison, under the circumstances here, was error.   Of course if the circumstances attending Delles' latest arrest had occurred while he was on probation, revocation of such probation and sentence to state prison would properly have been within the court's discretion.   But that is not the situation before us.

Delles has also contended error in the revocation of his probation for an alleged act occurring before probation was granted, and the denial of his motion to withdraw his guilty plea.   Our resolution of his contention that his sentence to state prison was error makes it unnecessary for us to pass upon these additional questions.

We bear in mind, as a result of the subject agreement, that the position of the state has been changed in that certain other charges of crime and of prior convictions have been dismissed.   The People will have an opportunity to again assert such charges against defendant.   There has accordingly been no substantial prejudice to the state.

The judgment is reversed.   Delles' plea of guilty will be set aside, and the parties will be restored to the positions held prior to the entry of such plea.


1.   Although such agreements have been criticized it appears to be in the public interest to encourage the settlement of criminal cases without the necessity of a trial.  (People v. Hamilton, 60 Cal.2d 105, 114, 32 Cal.Rptr. 4, 383 P.2d 412;  see also People v. Quinn, 61 Cal.2d 551, 555, 39 Rptr. 393, 393 P.2d 705.)

2.   This information was hearsay and was denied by Delles.   However, we deem such hearsay character and denial to be irrelevant to the issue on this appeal.

3.   The other count was a misdemeanor violation with which we are not here concerned.

4.   Delles insisted below that he was in fact not guilty of the offense to which he pleaded guilty;  that he had a defense thereto;  and that he pleaded guilty in reliance on the agreement and because his attorney advised him to do so.

ELKINGTON, Associate Justice.

MOLINARI, P.J., and SIMS, J., concur.

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