CACILHAS v. SUPERIOR COURT IN AND FOR COUNTY OF ALAMEDA

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

Dennis P. CACILHAS, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ALAMEDA, Respondent,

PEOPLE of the State of California, Real Party in Interest. PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ALAMEDA, Respondent, Dennis P. CACILHAS, Real Party in Interest.

Civ. 33151, 33195 and 33553.

Decided: November 12, 1973

Robert B. Clevenger, Livermore, Robert A. Braverman, Oakland, for Dennis P. Cacilhas, petitioner and real party in interest. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Grim. Div., Doris H. Maier, Asst. Atty. Gen., Writs Section, Derald E. Granberg, Thomas P. Dove, Deputy Attys. Gen., San Francisco, for People of the State of California.

In these consolidated matters we consider three separate petitions for writs to compel the Superior Court of Alameda County to annul its order of April 26, 1973, setting aside Cacilhas' plea of guilty and to compel the court to sentence him according to the terms of a plea bargain accepted by the prosecuting attorney and approved by the judge in open court.

Cacilhas was before respondent court in response to two separate informations. In one he was charged with burglary and receiving stolen property. In the other, he was charged with attempted escape. In each information five prior felony convictions were also alleged.

The Negotiated Plea

Cacilhas negotiated a plea bargain with the prosecution which was accepted by the prosecuting attorney in open court and approved by the court. Following the court's approval of the bargain, Cacilhas voluntarily waived his right to a trial by jury, his privilege against compulsory self-incrimination, and his right to confront his accusers, in the manner required in In re Sutherland (1972), 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857, and entered his plea of guilty to a violation of Penal Code, section 496 (receiving stolen property). Thereafter, the court granted the prosecution's motion to dismiss all the remaining charges, including the priors, accepted the plea of guilty, and referred the matter to the probation department for a pre-sentence report. The court did not inform Cacilhas, prior to acceptance of the guilty plea, that its approval was not binding.

The Sentencing Procedure

On April 26, 1973, at the time set for sentencing, and after reviewing the probation report, the court informed Cacilhas that it could not honor its commitment to sentence him to the county jail, and extended him the opportunity to withdraw his plea of guilty. Cacilhas expressly refused to withdraw his plea, elected to stand on it, and maintained that the court was bound to honor the commitment. Thereupon, the court, on its own motion, set aside Cacilhas' plea of guilty to a violation of Penal Code, section 496, and reinstated the pleas of not guilty to all charges, including the charges that had been dismissed on motion of the prosecution. The court then sent the cause back to the master calendar department for reassignment for jury trial. Cacilhas immediately entered a plea of once in jeopardy which was denied.

Contentions

Cacilhas contends that respondent court was bound by its commitment not to execute a state prison sentence.1 We agree.

The People, by their petition, contend that respondent court had no jurisdiction to set aside the guilty plea sua sponte. We agree with this contention also.

Discussion

Preliminarily, we note that plea bargaining has been recognized as being beneficial both to the state and to the defendant, the defendant benefiting from a lessened punishment, the state from savings in costs of trial, increased efficiency and flexibility of the criminal process (People v. West (1970), 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409; Bryan v. Superior Court (1972), 7 Cal.3d 575, 588, 102 Cal.Rptr. 831, 498 P.2d 1079). Plea bargaining was expressly approved in Brady v. United States (1969), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, and thereafter, the California Supreme Court held that in every case in which a plea bargain is accepted, it should be recorded (People v. West, supra, 3 Cal.3d, p. 610, 91 Cal.Rptr. 385, 477 P.2d 409).

In 1970, by the enactment of Penal Code section 1192.5 (Seats.1970, ch. 1123, § 3, p. 1992), the Legislature provided statutory guidance to the trial courts in receiving and considering negotiated pleas (see Pen.Code, § 1192.5; People v. West, supra at p. 608, 91 Cal.Rptr. 385, 477 P.2d 409; Witkin, Cal.Criminal Procedure (1973 Supp.), § 262A, p. 144).2

The court exceeded its jurisdiction in setting aside the guilty plea on its own motion after Cacilhas expressly refused the court's invitation to permit him to withdraw his plea.

Penal Code, section 1018, provides that ‘On application of the defendant at any time before judgment the court may, and in the case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.’ (Emphasis added.) It is clear that a court has discretion to grant or deny an application made pursuant to Penal Code section 1018 (People v. Francis (1954), 42 Cal.2d 335, 338, 267 P.2d 8), but the court's discretion to grant or deny such an application is not unlimited (People v. Thompson (1970), 10 Cal.App.3d 129, 135, 88 Cal.Rptr. 753).

The provisions of Penal Code section 1192.5, on the other hand, vest no discretion in the court to deny the application of a defendant to withdraw his plea in the event the court withdraws its approval of a plea; that section provides that, in such case the defendant ‘shall be permitted to withdraw his plea if he desires to do so.’ (Emphasis added.)

We construe section 1192.5 to secure to the defendant the absolute right to withdraw his plea of guilty in the event the court withdraws its approval of a plea bargain (see People v. Ramos (1972), 26 Cal.App.3d 108, 111, 102 Cal.Rptr. 502, citing People v. Flores, 6 Cal.3d 305, 308–309, 98 Cal.Rptr. 822, 491 P.2d 406, and People v. Delles (1968), 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629). We find nothing in Penal Code, section 1192.5, however that permits the trial court to vacate a guilty plea, on its own motion, once the defendant has expressly refused the court's offer to permit him to withdraw his plea and has elected to stand on his plea. A court does not have unlimited power to refuse to accept, or to vacate, a guilty plea (People v. Thompson, supra, 10 Cal.App.3d, p. 137, 88 Cal.Rptr. 753).

We hold that the court exceeded its jurisdiction in vacating, on its own motion, Cacilhas' plea of guilty, after he had expressly refused the court's invitation to permit him to withdraw his plea (People v. Thompson, supra, p. 135, 88 Cal.Rptr. 735).

When the court does not inform the defendant, prior to the acceptance of his plea, that its approval is not binding, the court may not withdraw its approval at the time set for hearing on the application for probation or pronouncement of judgment.

We now reach Cacilhas' contention that because the court did not inform him prior to the making of his plea that its approval was not binding, the court is bound to sentence him in accordance with the bargain.

Section 1192.5 provides that ‘Where such [negotiated] plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.’ (Emphasis added.)

The following paragraph contains the exception applicable under the facts adduced here. It provides that ‘It the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.’ (Emphasis added.)

If the court had complied with the requirements of the foregoing exception, its right to withdraw its approval in light of further consideration of the matter would have been clear, and Cacilhas' sole legal remedy would have been to move to withdraw his plea (see People v. Ramos, supra).3 The record shows, however, that the court did not inform Cacilhas, prior to the making of the plea, that its approval was not binding.

Under the circumstances shown here, when the court did not comply with the requirements of the exception, and Cacilhas elected to stand on his plea, the court had jurisdiction to proceed only as ‘specified in the plea,’ and Cacilhas ‘cannot be sentenced on such plea to a punishment more severe than that specified in the plea.’ We agree with Cacilhas that ‘To conclude otherwise would render useless the direction of the Legislature that accused persons be warned of the conditional nature of the Court's approval of negotiated pleas.’

In construing a statute consisting of several provisions, such construction is, if possible, to be adopted as will give effect to all (Code Civ.Proc., § 1858; 45 Cal.Jur.2d, Statutes, § 117 , p. 626). If the court is permitted to withdraw its approval of a plea bargain at sentencing without any prior warning of the conditional nature of its approval, then the mandatory provision that the court shall inform the defendant prior to the making of the plea that its approval is not binding becomes surplusage. A cardinal rule of statutory construction is that a construction making some words surplusage is to be avoided (People v. Gilbert (1969), 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580).

Disposition

(1) In 1 Civil No. 33553 and 1 Civil No. 33151, let writs of mandate issue directing the Superior Court of Alameda County to annul its order of April 26, 1973, which vacated the guilty plea in People v. Cacilhas, Case No. 54732, and to sentence petitioner, as specified in the plea, unless petitioner moves to withdraw his guilty plea and the court grants such motion.

(2) In 1 Civil No. 33195, let a writ of mandate issue directing the Superior Court of Alameda County to annul its order of April 26, 1973, reinstating the charge of attempted escape contained in Information No. 54692 and to dismiss the charges contained therein unless petitioner moves to withdraw his guilty plea in People v. Cacilhas, Case No. 54732, and the court grants such motion.

FOOTNOTES

1.  The Attorney General urges us to infer that the trial judge, by indicating that he was going to commit Cacilhas to the Department of Corrections pursuant to Penal Code, section 1203.03, impliedly reserved the right to ‘change his mind’ about the type of sentence to be imposed.We cannot accept this argument for the following reasons. First of all, as we point out later, section 1192.5 of the Penal Code imposes a mandatory obligation upon the court to inform the defendant of any qualification of its approval of the negotiated plea.Secondly, the record does not support an inference that after completion of the 1203.03 diagnostic study the court was going to do anything other than place Cacilhas in county jail for a maximum of one year as a condition of probation. The only reference to state prison was that the sentence might be ‘State Prison suspended’ and that Cacilhas realized that if his probation were subsequently revoked, he could then be sent to state prison.The following excerpts from the proceedings at the time of entry of the guilty plea manifest a clear, unambiguous agreement that Cacilhas would not be sentenced directly to prison: ‘THE COURT: All right, Mr. Semansky [Deputy District Attorney], will you state the basis of the negotiated plea, please. MR. SEMANSKY: Yes, Your Honor. The first thing I should do at this time is, based upon a 1538.5 motion which was granted on March 22, 1973, we would dismiss the third and fourth counts in the Information, No. 54732, on the basis we have no physical evidence to proceed with and in the interests of justice we dismiss those two counts. As to the remaining counts, Count one and Count two—THE COURT: The third and fourth counts are against Mr. Ramirez only, is that correct? MR. SEMANSKY: That is correct. THE COURT: All right, proceed. MR. SEMANSKY: As to Counts one and two, which remain now as to each of the defendants, if Mr. Dennis Paul Cacilhas were to enter a plea of guilty to Count two; that is, 496 of the Penal Code, we would dismiss both counts as they remain as to Mr. Armando Ramirez. If he were also the enter that plea, we would dismiss Information No. 54692, which is an escape charge now pending in this Court.‘The terms and conditions of the promise are as follows, that if a plea were entered to 496 of the Penal Code, we would go along with the referral from the Court to Vacaville under Section 1203.03 and promise no physical State Prison, that the time pending that referral would be up to the Court, and we would abide by the Court's decision as to what credit or not credit would be given to the time.’ (Emphasis added.)Then during voir dire of Cacilhas by his own counsel, the following appears: ‘Q. Now, I have indicated to you that if you plead guilty, as the District Attorney said, to a violation of Section 496 of the Penal Code, that you would not be sent to State Prison, is that correct? A. Yes. Q. But that you would be sent to Vacaville prior to any sentencing, for any diagnostic study pursuant to Section 1203.03 of the Penal Code; that is, a study to evaluate you psychologically? A. Yes. Q. You understand that could be for a period up to but not more than ninety days? A. Yes. Q. You understand that when you came back from there to be sentenced by this Court, that the Judge would have the power to sentence you or would sentence you to county jail and that he may or may not give you credit for any of that time that you spent at Vacaville? A. Yes. Q. And that that would be dependent upon his feelings on the case at the time he sentences you, how well you perform at Vacaville and your past record, but you could receive up to a year in the county jail after your return from Vacaville? Do you understand that? A. Yes.’ (Emphasis added.)‘THE COURT: Q. You understand, Mr. Cacilhas, that assuming you are placed on probation or State Prison suspended as a result of the action of the Court, that should you violate that probation or the terms and conditions of that probation at any time during the probationary period, then you could be sent to State Prison? You understand that? A. Yes.’‘THE COURT: Let's go on the record, Mr. Cacilhas. In all probability I will give you a State Prison suspended sentence and, as I told you, should you violate any of the terms and conditions of probation while that sentence is hanging over your head, then all deals are off and I could send you to State Prison after a revocation of probation hearing and evidence having been introduced. Now do you understand that? THE DEFENDANT CACILHAS: Yes.’ (Emphasis added.)Following this—there was a temporary misunderstanding by Cacilhas as to the effect a ‘State Prison suspended’ sentence would have on his then existing parole status. Following a clarification of that problem, Cacilhas was again voir dired by his counsel, the critical portion of which is as follows: ‘Q. You understand that the Judge has indicated that were you to plead guilty, he would refer you to Vacaville pursuant to Section 1203.03 of the Penal Code to have a psychiatric evaluation? Do you understand that? A. Yes. Q. And you understand that he has indicated that when you return, that you would be sentenced to county jail and that you would have to be prepared to go up for a year on that particular day, the date that you return, which would be not more than niney days from the date that you would be sent to Vacaville? Do you understand that? A. Yes. Q. And do you understand that you would be placed on probation and in all likelihood that a State Prison sentence would be suspended, which means that if you violate probation, that you could be sent to State Prison for the ten year maximum that I have indicated? Do you understand that? A. Yes.’ (Emphasis added.)

2.  Penal Code, section 1192.5, reads as follows: ‘Upon a plea of guilty or of nolo contendere to an information or indictment, the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it. Where such plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea. If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for such plea.‘If such plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available.‘If such plea is withdrawn or deemed withdrawn, it may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.’ (Emphasis added.)

3.  In their opposition to 1 Civil 33151, the People contend that the remedy set forth in People v. Delles, supra, 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629 (permitting the defendant to withdraw his plea), is the sole legal remedy available to Cacilhas, and that ‘no known decision of a California court has ruled in favor of any other alternative remedy,’ citing People v. Tambone (1972), 29 Cal.App.3d 604, 609 (order not to be published in the Official Reports, Feb. 14, 1973); People v. Barajas (1972), 26 Cal.App.3d 932, 937, 103 Cal.Rptr. 405; People v. Ramos, supra, 26 Cal.App.3d 108, 111, 102 Cal.Rptr. 502; People v. Smith (1971), 22 Cal.App.3d 25, 29, 99 Cal.Rptr. 171. None of these cases, however, involves a fact situation wherein the trial court failed to comply with the provisions of Penal Code, section 1192.5, that require it to inform the defendant prior to the making of the plea that its approval is not binding, nor a fact situation where the defendant was offered, but declined, the opportunity to withdraw his plea. Delles was decided in 1968 before section 1192.5 was in existence. Cases are not authority for propositions not considered (In re Tartar (1959), 52 Cal.2d 250, 258, 339 P.2d 553; People v. Banks (1959), 53 Cal.2d 370, 389, 1 Cal.Rptr. 669, 348 P.2d 102).

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.