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

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Jose R. GIRON, Real Party in Interest.

Civ. 33974.

Decided: November 16, 1973

Evelle J. Younger, Atty. Gen. of the State of California, Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Writs Section, William D. Stein, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for petitioner. Douglas P. Haffer, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for real party in interest.

In this mandate proceeding the People of the State of California seek an order which would direct the respondent court to set aside its order granting the motion of Jose R. Giron, the real party in interest, to withdraw his plea of guilty and enter a plea of not guilty. The order of respondent court was made prior to judgment, and such an order is reviewable by mandate. (People v. Thompson (1970), 10 Cal.App.3d 129, 88 Cal.Rptr. 753.)1

The plea of guilty entered in respondent court was to a charge of violation of section 11530 of the Health and Safety Code (possession of marijuana), which was deemed a misdemeanor by stipulation. Imposition of sentence was suspended and Giron was placed on probation for three years. The motion to withdraw the plea of guilty was filed prior to the expiration of the probationary period. In support of the motion it was contended that the conviction of a violation of section 11530 of the Health and Safety Code subjected Giron to possible deportation, and that he, his counsel, and the trial court were unaware of the possible consequence at the time the plea was entered. Giron also sought to have the information amended to charge a violation of section 11556 of the Health and Safety Code (presence in a place where a narcotic is being used), to which he offered to enter a plea of guilty. No contention was made that he was innocent of the section 11530 offense. Respondent court, after considering points and authorities filed by both sides, stated it was basing its ruling on People v. Savin (1940), 37 Cal.App.2d 105, 98 P.2d 773, and then set aside its order granting probation, permitted withdrawal of the plea of guilty, and entered a plea of not guilty on behalf of the defendant.

An order suspending imposition of sentence and granting probation is not a judgment (Stephens v. Toomey (1959), 51 Cal.2d 864, 871, 338 P.2d 182; People v. Orrante (1962), 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480; see also 2 Witkin, Cal.Crimes, §§ 1066, 1067, pp. 1007–1008), and section 1018 of the Penal Code is therefore applicable to this case. That section provides in part that ‘[o]n application of the defendant at any time before judgment the court may . . . for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.’ (Emphasis added.) Thus the issue presented is whether or not an unforeseen consequence of deportation can, as a matter of law, be good cause for setting aside a plea of guilty within the meaning of section 1018. We held that it cannot.

The reliance of the trial court on the holding of People v. Savin, supra, was misplaced. Savin involved misrepresentations by the prosecution as to the expected outcome of a guilty plea, a well recognized circumstance under which withdrawal of a guilty plea is justified. The instant case involved no such misrepresentations. Although there is some broad language in Savin referring to justification for withdrawing a plea made in ignorance of the ‘consequences', there is no indication there that ‘consequences' should include those external or collateral to the case in which the plea was entered. Neither is there any such indication in the other cases relied upon by Giron.

Although it is now well established that before a guilty plea can be accepted a defendant must be advised of the direct consequences of his plea, such as the permissible range of sentences, the requirement relates to consequences directly involved in the criminal case itself. No California cases have been cited to us dealing with collateral consequences within the context of Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969), 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, but several federal cases have discussed collateral consequences in the light of rule 11 of the Federal Rules of Criminal Procedure, which requires that a plea of guilty must be made with an understanding of the consequences of such a plea. Types of consequences which have been held to the collateral and thus not requiring a plea of guilty to be set aside include the effect a prior criminal record would have on the possibility of obtaining parole (Mathis v. Hocker (9th Cir. 1972), 459 F.2d 988, 989); the possibility that consecutive sentences might be imposed (Johnson v. United States (9th Cir. 1972), 460 F.2d 1203, 1204); the fact conviction might also result in an administrative penalty of loss of good time credit (Hutchison v. United States (10th Cir. 1971), 450 F.2d 930, 931); the possibility a federal conviction might affect the sentence in an independent state court case (Hightower v. United States (6th Cir. 1972), 455 F.2d 481, 482); the fact a conviction had proved to be a source of embarrassment and loss of prestige as a responsible citizen and union leader, as well as resulting in loss of voting rights (United States v. Cariola (3rd Cir. 1963), 323 F.2d 180); the possibility a civilian conviction might result in an undesirable discharge from the Air Force (Redwine v. Zuchert (1963), 115 U.S.App.D.C. 130, 317 F.2d 336, 338); and the possibility a conviction might result in loss of civil rights, including loss of passport and right to travel abroad (Meaton v. United States (5th Cir. 1964), 328 F.2d 379, cert. den., 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965)). While it has been held that possible deportation should not be viewed as a collateral consequence where the question of misrepresentation as to the possibility was involved (United States v. Briscoe (1970), 139 U.S.App.D.C. 289, 432 F.2d 1351), the same court held that in the absence of any misrepresentation as to the possibility of deportation, such possibility was merely a collateral consequence (United States v. Sambro (1971), 147 U.S.App.D.C. 75, 454 F.2d 918).

As held in Brady v. United States (1969), 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, a plea of guilty must stand if entered by one ‘fully aware of the direct consequences' thereof, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, unless the plea of guilty was induced by threats, misrepresentations, or improper promises. In United States v. Sambro supra, 454 F.2d at page 922, the court commented upon the Brady case as follows: ‘We note that the accused must be ‘fully aware of the direct consequences.’ We presume that the Supreme Court meant what it said when it used the word ‘direct’; by doing so, it excluded collateral consequences.'

Let a peremptory writ of mandate issue, directing respondent court to set aside its order of August 27, 1971, and reinstate the plea of guilty and the order granting probation in action No. 78683, People of the State of California v. Jose R. Giron.


1.  The People also appealed from the order granting the motion. We have held that order to be nonappealable, and said appeal has been dismissed in 1/Criminal 11029, People v. Giron.