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Court of Appeal, Third District, California.

IN RE: Hipolito VILLA FIERRO, on habeas corpus.

Cr. 6170.

Decided: July 08, 1971

Paul Petrozzi, Sacramento, for petitioner. Daniel J. Kremer and James T. McNally, Deputy Attys. Gen., Sacramento, for respondent.

By this proceeding in habeas corpus, petitioner seeks to secure his release from custody claiming he has been improperly sentenced to state prison. He is presently confined at the California Conservation Center, Susanville, California.

On August 27, 1968, petitioner was accused by an information filed in Los Angeles Superior Court (No. 503180) of a violation of California Health and Safety Code, section 11911, possession for sale of a restricted dangerous drug.

In a separate information (No. 503196), filed on the same date in said court, petitioner was accused in count one of a violation of California Penal Code, section 487 (grand theft), and in count two of a violation of California Vehicle Code, section 10851 (unlawful taking of a vehicle).

On September 3, 1968, petitioner entered pleas of not guilty to the offenses charged.

On March 4, 1969, in case No. 503180, petitioner withdrew his plea of not guilty to the charge of possession for sale of a restricted dangerous drug (Health & Saf. Code, § 11911), and then entered a plea of guilty to a violation of California Health and Safety Code, section 11910, unlawful possession of a restricted dangerous drug. On this same date petitioner, in case No. 503196, withdrew his plea of not guilty to count two of the information and then entered his plea of guilty of a violation of California Vehicle Code, section 10851.

Thereafter, pursuant to section 3051 of the Welfare and Institutions Code, petitioner was committed to the Director of the Department of Corrections, California Rehabilitation Center, Corona; was in due course found to be an unfit subject for the California Rehabilitation Center and was returned to the superior court and sentenced to state prison in both cases—the sentences to run concurrently.

Respondent, in the Return to Order to Show Cause, admits as true the following:

‘That at the time (August 2, 1968) petitioner committed the offense charged in information No. 503180 the penalty for a violation of California Health and Safety Code, section 11910 was a fine of $1,000 or imprisonment in the county jail for one year, or both such fine and imprisonment.


‘That at the time petitioner entered his plea of guilty to a violation of Vehicle Code section 10851 in case No. 503196 the District Attorney stated that the People were going to recommend that the offense be a misdemeanor by sentence.


‘That the record fails to disclose that such recommendation was in fact made at the time petitioner was returned to court for imposition of sentence on his plea of guilty to a violation of section 10851.’

Respondent concludes that ‘in light of the record of the case and the statutes involved it appears that petitioner has been improperly sentenced to state prison so that respondent respectfully suggests that he be returned to Superior Court, allowed to withdraw his guilty plea, and that the court conduct further proceedings in the matter.’

Prior to petitioner's withdrawal of his guilty plea he was informed by his counsel, the public defender, that if he would plead guilty to mere possession of narcotics and to joyriding, the district attorney would recommend misdemeanor rather than felony sentences on both pleas. On March 4, 1969, the record discloses that petitioner appeared in court and requested to so change his plea and the prosecution informed the court that the People recommended a misdemeanor sentence on both guilty pleas. Petitioner withdrew his guilty plea and pled to misdemeanor possession (Health & Saf.Code, § 11910) and to joyriding (Veh.Code, § 10851) and the prosecution recommended to the judge that he be sentenced for two misdemeanors. The trial court (Egly, J.) accepted both such pleas under such conditions and recommendations.

When petitioner was returned to the trial court for sentencing, the same court which had accepted his pleas sentenced petitioner to concurrent state prison sentences on both guilty pleas although defense counsel reminded the court of the pleas of guilty to mere possession and to joyriding only. The prosecutor did not recommend a misdemeanor sentence as he had done at the time of the guilty pleas. Also on August 8, 1969, the Penal Code, section 487 count for grand theft (auto) was dismissed. Petitioner thus contends he pled guilty only to misdemeanor offenses, which pleas were accepted as such by the trial court, and that accordingly the later sentence for felony offenses was erroneous.

In People v. West (1970), 3 Cal.3d 595, 599, 91 Cal.Rptr. 385, 386, 477 P.2d 409, 410, the court confirmed the legality of the plea bargain, stating: ‘In a day when courts strive to simplify trial procedures and to achieve speedier dispatch of litigation, we believe that the recognition of the legal status of the plea bargain will serve as a salutary time-saver as well as a means to dispel the procedural obscurantism that now enshrouds it. The grant of legal status to the plea bargain should enable the court in each case to reach a frank, open and realistic apprisal of its propriety.’

‘Both the state and the defendant may profit from a plea bargain. The benefit to the defendant from a lessened punishment does not need elaboration; the benefit to the state lies in the savings in costs of trial, the increased efficiency of the procedure, and the further flexibility of the criminal process. Numerous courts, commissions, and writers have recognized that the plea bargain has become indispensable to the efficient administration of criminal justice. Professor Newman, in his study of plea bargaining, notes that ‘A steady flow of guilty pleas and the corresponding avoidance of the time, expense, and uncertainty of trials is important to the smooth functioning of most criminal courts. * * * Plea negotiation, with bargains duly honored, is a device necessary to administration if a steady flow of guilty pleas is to be maintained.’ (Newman, pp. 29, 39.)' (Id. at pp. 604–605, 91 Cal.Rptr. at pp. 389–390, 477 P.2d at pp. 413–414.)

In urging that petitioner be returned to the superior court, allowed to withdraw his pleas of guilty, and the court conduct further proceedings in the case, the respondent cites the statement of the court in People v. Delles (1968), 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629, which is quoted in People v. West, supra, 3 Cal.3d at page 610, 91 Cal.Rptr. at page 394, 477 P.2d at page 418: “[I]f a defendant pleads guilty as part of a bargain with an apparently authoritative and reliable public official * * * whereby he is assured of receiving in return for his plea probation, a lenient sentence, or some other form of special consideration, the trial judge may not impose judgment contrary to the terms of such bargain without affording the defendant an opportunity to withdraw his guilty plea.” (Emphasis added.)

Petitioner on the other hand argues he should be given the treatment due him on his guilty plea, based on a plea bargain, and since he seemingly may have served more time in custody, some of it in prison, than he would have served on two county jail sentences, he should now either be discharged from custody forthwith or returned to superior court to be resentenced in accordance with his plea to misdemeanors, with credit given for time already served. We agree with petitioner that he should be given the benefit of his plea bargain, but since the record is not completely clear as to how much time petitioner has actually spent in custody it is not appropriate to release him forthwith. Petitioner made a valid plea bargain and should have been given the proper misdemeanor sentence for which he bargained. (People v. West, supra, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409.) Petitioner has made it clear he does not wish to withdraw his plea of guilty to the two misdemeanors and he should not be forced to do so.

Upon issuance of a writ of habeas corpus, this court's power is not limited to either discharging petitioner from, or merely remanding him to, custody; its power extends to disposing of him ‘* * * ‘as the justice of the case may require.’' (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4, 87 Cal.Rptr. 681, 684, 471 P.2d 1, 5.) Inherent in the power to issue the writ is the power ‘to fashion a remedy for the deprivation of any fundamental right which is cognizable in habeas corpus.’ (In re Crow (1971) 4 Cal.3d 613, 619–620, fn. 7, 94 Cal.Rptr. 254, 259, 483 P.2d 1206, 1211.).

Petitioner must be afforded the opportunity to withdraw his guilty plea (People v. Delles, supra, 69 Cal.2d at p. 911, 73 Cal.Rptr. 389, 447 P.2d 629). If he does so and trial and conviction ensues, he must be given appropriate sentence credit for time previously served. (Pen.Code, § 2900.1.) If he does not withdraw his guilty plea, he must be properly sentenced on his misdemeanor guilty plea, likewise with credit for time previously served. (Pen.Code, § 2900.1.) The writ is granted and petitioner is remanded to the Superior Court for the County of Los Angeles for proceedings consistent with this opinion. (In re Williams (1969) 1 Cal.3d 168, 179, 81 Cal.Rptr. 784, 460 P.2d 984.

REGAN, Associate Justice.

PIERCE, P. J., and FRIEDMAN, J., concur.