PEOPLE v. In re Willie Calloway, on Habeas Corpus.

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

The PEOPLE, Plaintiff and Respondent, v. Willie CALLOWAY, Defendant and Appellant. IN RE: Willie Calloway, on Habeas Corpus.

Cr. 37038, Cr. 37113.

Decided: August 04, 1980

Quin Denvir, State Public Defender, and Therene Kay Powell, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Richard D. Marino, Deputy Attys. Gen., for plaintiff and respondent.

Willie Calloway appeals from a November 21, 1979, judgment of the Superior Court of the State of California for the County of Los Angeles sentencing him to state prison. He also seeks a writ of habeas corpus to require the superior court to set aside this judgment. Relief is sought on the ground that he was unlawfully sentenced to state prison by Judge Robert H. London in contravention of a plea bargain previously approved by Judge London at Calloway's formal probation revocation hearing on August 9, 1979.

The record reveals that Calloway, while on probation, was charged with violation of Penal Code section 273a, subdivision (1) (willful cruelty to a child). The plea bargain specified that, in return for his admission that he had violated the terms of his probation, he was to be committed to the Department of Corrections for a diagnostic study, but, upon his return to court after such study, he was not to be sentenced to state prison.

The Attorney General concedes that the plea bargain as made was not kept by Judge London, presumably because Judge London concluded, upon receipt of information about Calloway from the Los Angeles County Probation Department and the State of California Department of Corrections during the interim between the revocation and sentencing hearings, that, because of his propensity for violence, Calloway was a danger to the community and not amenable to any of the alternative forms of treatment and/or discipline available; hence the state prison sentence.

Since the Attorney General concedes breach of the plea bargain, the only issue before us is the precise nature of the relief which should now be afforded Calloway, taking into account the attendant circumstances. At the time we issued the alternative writ in this matter on May 14, 1980, Calloway was serving the state prison sentence with the earliest possible release date of July 14, 1980; since issuance of the writ, Calloway has been released on bail. The bail release date was on May 27, 1980.

The Attorney General contends that the only relief to which petitioner should be entitled is to return the matter to the status quo ante in existence prior to the making of the plea bargain. As we understand the Attorney General's position, the appropriate resolution of this matter would be to order Judge London to vacate the state prison sentence and give Calloway the opportunity to either withdraw his admission to the probation violation or accept the prior state prison sentence. If Calloway decided to withdraw his admission of probation violation, presumably, proceedings would commence anew, with the possibility that, if the probation violation were found to have occurred, a new sentence could be imposed that involved a state prison incarceration of Calloway if, in the judge's discretion, such was warranted.

For this position, the Attorney General relies upon the procedures concerning plea bargains established by Penal Code section 1192.5.1 It is claimed that such a result upon remand would not violate the spirit of the plea bargain, because the only thing Judge London promised was that he would not send Calloway to state prison.

Calloway contends that not only should the state prison sentence be vacated and by a judge other than Judge London but that the sentence ultimately imposed should be consistent with the plea bargain originally made. In essence, Calloway asks for specific performance of the plea bargain.

As we read the record, one question presented is the following: would it be consistent with the plea bargain, when the cause is remanded, for Calloway to be subject to further incarceration other than in state prison, if the judge resentencing him exercised his discretion in that fashion? The issue presented is whether such a result would be fair under the circumstances.

Both Calloway and the Attorney General rely, for their disparate positions, on certain language concerning the specific performance of plea bargains contained in People v. Kaanehe (1977) 19 Cal.3d 1, 136 Cal.Rptr. 409, 559 P.2d 1028. In Kaanehe, it was the prosecution who desired specific performance of the plea bargain. Rejecting that request, the California Supreme Court explained that “(s)pecific enforcement of a plea bargain agreement is actually a broad term covering several different types of relief. The remedy differs depending upon the nature of the breach and which party is seeking specific enforcement. When the breach is a refusal by the prosecutor to comply with the agreement, specific enforcement would consist of an order directing the prosecutor to fulfill the bargain. When the breach is a refusal by the court to sentence in accord with the agreed upon recommendation, specific enforcement would entail an order directing the judge to resentence the defendant in accord with the agreement. The People as well as a defendant may seek such specific enforcements. The effect is to limit the remedy to an order directing fulfillment of the bargain.” (Kaanehe, supra, 19 Cal.3d 1, 13, 136 Cal.Rptr. 409, 417, 559 P.2d 1028, 1036.)

The Kaanehe court also makes the observation that “(w)e have previously held that a defendant should not be entitled to enforce an agreement between himself and the prosecutor calling for a particular disposition against the trial court absent very special circumstances. . . . Specific enforcement of a particular agreed upon disposition must be strictly limited because it is not intended that a defendant and prosecutor be able to bind a trial court which is required to weigh the presentence report and exercise its customary sentencing discretion. (Fn. omitted.)” (Id. at pp. 13-14, 136 Cal.Rptr. at pp. 417-18, 559 P.2d at pp. 1036-37.)

It is of considerable significance, however, that the Kaanehe court did not address itself to the situation where the trial court itself limited its discretionary power, and then changed its mind. This latter situation is that presented in the case at bench.

Kaanehe emphasizes that a controlling consideration in fashioning a remedy for a broken plea bargain is the existence of a substantial possibility that a proposed remedy will not completely repair the harm caused by the breach. This is the factor in the case at bench, where the disposition proposed by the Attorney General would not repair the harm done; Calloway has served some six or seven months in state prison, a place to which the promise was made that he would not be sent.

Further illumination of the issue before us is provided by People v. Collins (1978) 21 Cal.3d 208, 145 Cal.Rptr. 686, 577 P.2d 1026, in which the People sought relief in the wake of a broken plea bargain. Here, circumstances had occasioned the breach. Defendant, facing a multi-count information, had been allowed to plead to one charge while many others were dismissed. It developed that the one charge concerned an act no longer deemed a criminal offense, and defendant's conviction was accordingly reversed. At issue was whether the People could seek reinstatement of the charges which had been dismissed pursuant to the plea bargain originally made.

It was stated in Collins that “(c)ritical to plea bargaining is the concept of reciprocal benefits. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made. . . . The question to be decided, then, is whether the prosecution has been deprived of the benefit of its bargain by the relief granted herein. . . . The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant's vulnerability to a term of punishment. . . .” (Id. at pp. 214-215, 145 Cal.Rptr. at pp. 689-90, 577 P.2d at pp. 1029-30.) (Emphasis added.) In Collins, the court concluded that the prosecution was entitled to seek reinstatement of the charges dismissed.

The analysis presented in Collins is helpful to us in resolving the problem presented in the case at bench. Here the prosecution not only got what it bargained for, but more; it got what it bargained for in obtaining Calloway's admission of a probation violation; it got more than it bargained for in the court's state prison sentence a sentence which Calloway has now served for some months. Calloway, on the other hand, has received the worst of it; his admission of a probation violation was used to obtain the result he bargained to avoid. Under the particular circumstances presented in the case before us, we conclude that the only fair and equitable solution is to vacate and set aside the state prison sentence and allow Calloway, defendant and petitioner herein, to withdraw his admission of probation violation and have a contested hearing on this issue if he so desires. If Calloway decides he does not wish to withdraw his admission of a probation violation, the trial court must carry out the plea bargain and impose a nonprison sentence. If the sentence imposed includes a county jail sentence, Calloway shall be entitled to credit for the unlawful time he was required to serve in state prison in addition to any other custody credits to which he would otherwise be entitled.

We are also mindful of the observation made in Kaanehe that, upon remand, “(f)urther proceedings should, of course, be had before a judge other than the judge who presided over the instant proceedings. We do not deem it likely that any judge, however objective and disciplined he may be, can wholly remove from consideration in resentencing defendant the matters improperly communicated to him by the prosecutor.” (Kaanehe, supra, 19 Cal.3d 1, 15, 136 Cal.Rptr. 409, 418, 559 P.2d 1028, 1037.)

We recognize that nothing was improperly communicated here to Judge London. Possibly no promise concerning state prison should have been made in the first instance because Calloway was charged with violence against a very small child. But we cannot permit the egregious error of a broken plea bargain to remain unrectified where an injustice has been created that is not caused by the defendant and petitioner. Of primary concern here is not only the existence of propriety but the appearance thereof. Accordingly, the matter must be handled, upon remand, by a judge other than Judge London.

The judgment appealed from is reversed. Let a peremptory writ issue, directing the Los Angeles Superior Court, in case number A 136271, entitled The People v. Willie Calloway, to vacate and set aside its November 12, 1979 judgment sentencing defendant and petitioner to state prison and permitting defendant and petitioner the option to withdraw his admission of a probation violation or to be sentenced in accordance with the plea bargain with due recognition given to the time defendant and petitioner has served in state prison.

I dissent.

I agree with the majority opinion that Judge London imposed a state prison sentence contrary to the bargain agreement, but I depart therefrom in the matter of petitioner's remedy. While situations may exist in which special circumstances require that a defendant be given the benefit of his bargain (People v. Kaanehe, 19 Cal.3d 1, 13-14, 136 Cal.Rptr. 409, 559 P.2d 1028; see also People v. Flores, 6 Cal.3d 305, 311, 98 Cal.Rptr. 822, 491 P.2d 406; People v. Delles, 69 Cal.2d 906, 911, 73 Cal.Rptr. 389, 447 P.2d 629; cf. People v. Collins, 21 Cal.3d 208, 217, 145 Cal.Rptr. 686, 577 P.2d 1026), it is my view in light of the nature of the bargain agreement and the serious circumstances in this case, and for the reasons expressed in People v. Kaanehe, 19 Cal.3d 1, 136 Cal.Rptr. 409, 559 P.2d 1028, that this is not an appropriate case for specific performance. I would order peremptory writ to issue but would direct Judge London to advise petitioner of his withdrawal of approval of the bargain agreement in light of further consideration of matters before him, permit him to withdraw his admission of probation violation and reinstate the revocation proceedings to the original status quo. (People v. Johnson, 10 Cal.3d 868, 873, 112 Cal.Rptr. 556, 519 P.2d 604; People v. Morris, 97 Cal.App.3d 358, 359, 365, 158 Cal.Rptr. 722; People v. Preciado, 78 Cal.App.3d 144, 148, 144 Cal.Rptr. 102.) In the appeal I would reverse the judgment with the same directions. In neither case would I allow petitioner the option of being sentenced in accord with the terms of the bargain. For any sentence Judge London may impose which would include a period of incarceration, credit must be given for time served. (People v. Beasley, 5 Cal.App.3d 617, 624, 639, 85 Cal.Rptr. 501.)

While the following procedural history is irrelevant in determining whether petitioner should be permitted to withdraw his admission, it is indeed relevant in balancing the equitable considerations to determine whether the bargain should be enforced. (People v. Johnson, 10 Cal.3d 868, 872-873, 112 Cal.Rptr. 556, 519 P.2d 604.)

November 2, 1976 petitioner pleaded guilty to endangering the life and health of a child (s 273a, subd. (1), Pen.Code), a felony; proceedings suspended and petitioner placed on five years probation on certain terms and conditions. One year and two and one-half months later, and on February 21, 1978, after a desertion hearing, probation was revoked and bench warrant issued for his failure to appear.

September 15, 1978 petitioner arraigned in municipal court on unrelated battery (s 242, Pen.Code), a misdemeanor.

September 26, 1978 bench warrant recalled, probation reinstated, petitioner released to Hope Mental Hospital Center (he deserted clinic October 1, 1978) and supplemental probation report ordered.

December 21, 1978 supplemental probation report filed; probation revoked; bench warrant issued.

February 21, 1979 on petitioner's plea of nolo contendere to battery charge, he was granted two years' probation, petitioner to enter treatment at Veterans Hospital.

March 14, 1979 bench warrant recalled; petitioner ordered to remain in Veterans Hospital; supplemental probation report ordered. April 26, 1979, and June 6, 1979 additional supplemental probation reports were ordered.

Supplemental probation reports of September 26, 1978, March 14, 1979, April 26, 1979, and June 6, 1979, all recommended probation remain revoked and sentence be pronounced because of petitioner's drug and alcohol abuse, serious psychiatric problems, continued assaultive behavior, suicide risk and potential threat to safety of others due to violent conduct, uncooperative attitude toward programs of treatment, lack of cooperation with probation officer, repeated failures to report to probation officer and desertion from probation.

On August 9, 1979, on probation revocation hearing and in accord with a bargain agreement, petitioner admitted violation of probation based on his battery conviction entered on his plea of nolo contendere in return for which the prosecutor agreed not to pursue and the judge not to make findings on the “other allegations that you are in violation of probation” desertion of probation, failure to obey instructions of probation officer and failure to report to probation and the judge would commit him to the Department of Corrections for 45-90 days for diagnostic study and report “in assisting the court's sentencing” upon his return, and “My agreement on the record between the district attorney and your attorney is that I will not sentence you to the state prison when you return. I will either sentence you to the county jail, put you back on probation, perhaps terminate the probation completely on this case, allow you to have probation on your municipal court case to Judge Jakes, change the conditions of probation. I am really not telling you what I am going to do, but I am making a commitment that you will not be sentenced to state prison.”

September 24, 1979 diagnostic study report filed by Department of Corrections recommending “that (petitioner) be considered for commitment to the Department of Corrections. (P) The diagnostic staff is unanimous in the opinion that prison commitment is the most appropriate disposition of this case.”

Upon petitioner's return to court and on November 21, 1979, Judge London read and considered the supplemental probation reports and diagnostic findings and report, ordered probation remain revoked and sentenced petitioner to state prison for a two-year term according him credit for 218 days time served in custody plus 93 days for good/work time credits. The judge found that petitioner was “unamenable to any program of any nature” and “no longer is a suitable candidate for probationary supervision.”1 No one in the courtroom, including defendant made mention of the bargain agreement or that the state prison sentence was contrary to any previous understanding.

January 17, 1980 petitioner appealed from judgment (order revoking probation); he was released from state prison on bail pending appeal on May 23, 1980; that appeal has been disposed of in the instant proceeding. His release date from state prison was calculated by the Department of Corrections to be July 14, 1980.

Specific performance is an equitable remedy and is to be granted only in accord with established principles of equity, and always with reference to the facts of the particular case. Thus where breach of a plea bargain has occurred, the courts have balanced the equitable considerations in each case in determining whether to grant enforcement of its terms.2 (People v. Kaanehe, 19 Cal.3d 1, 13-15, 136 Cal.Rptr. 409, 559 P.2d 1028 (nature of breach, which party seeks specific inforcement, harm caused by breach, nature of plea bargain agreement); People v. Johnson, 10 Cal.3d 868, 873, 112 Cal.Rptr. 556, 519 P.2d 604 (misrepresentations by defendant); People v. Preciado, 78 Cal.App.3d 144, 148-149, 144 Cal.Rptr. 102 (impropriety of term of bargain agreement).)

I have two major concerns about the specific enforcement offered in this case. The first involves what I perceive to be an abridgement of the trial court's sentencing discretion. The court in People v. Kaanehe, 19 Cal.3d 1 at pages 13-14, 136 Cal.Rptr. 409 at page 417, 559 P.2d 1028 at page 1036 articulates its previous holding in People v. Johnson, 10 Cal.3d 868, 873, 112 Cal.Rptr. 556, “that a defendant should not be entitled to enforce an agreement between himself and the prosecutor calling for a particular disposition against the trial court absent very special circumstances. The preferred remedy in that context is to permit a defendant to withdraw his plea and to restore the proceedings to the original status quo.” While it said Johnson did not there control, the court continued at page 14, 136 Cal.Rptr. at page 417, 559 P.2d at page 1036: “Specific enforcement of a particular agreed upon disposition must be strictly limited because it is not intended that a defendant and prosecutor be able to bind a trial court which is required to weigh the presentence report and exercise its customary sentencing discretion.” (Fn. 9 omitted.) The majority opinion states that Kaanehe did not address itself to the situation where the trial court itself limited its discretionary power and then changed its mind. But I fail to see any difference between the bargain in the instant case and the agreed-upon disposition mentioned in Kaanehe and at issue in People v. Johnson, 10 Cal.3d 868, 870-871, 112 Cal.Rptr. 556, 519 P.2d 604. The reality of the situation is that any plea bargain specifying punishment made between counsel is approved by the trial court and as such it becomes a party thereto to the extent that it binds itself to the term relating to punishment. For instance, section 1192.5, Penal Code not only contemplates court approval but specifically provides that where a plea specifying punishment is accepted by the prosecutor and “approved by the court” defendant cannot be sentenced thereon to a punishment more severe than that specified. Inherent in every approval by the trial court of a plea bargain specifying punishment is the self-imposed limitation on its discretionary sentencing power. Judge London in effect withdrew his approval of the bargain when he rejected petitioner's request for a “community-based rehabilitation program,” and sentenced him to state prison. Because no one reminded3 Judge London of the bargain at that time, he did not advise petitioner he could not abide its terms and give him the option to withdraw his admission or proceed with the bargain. Had he done so, in either option the judge would have been free to exercise his sentencing discretion. Fulfilment of the bargain saddles him with a variety of alternative dispositions which, on November 21, 1979, he rejected as inappropriate in light of the serious information contained in the diagnostic study and findings and report of the Department of Corrections. Under the circumstances here I do not think the judge's hands should be any more tied upon petitioner's return to the trial court than they would have been at the time of original sentence had petitioner withdrawn his admission and proceeded anew or elected to proceed without the agreement. In either case, discretion should rest unrestricted with the trial court which is required to weigh the various supplemental probation reports and diagnostic findings and report and exercise its customary sentencing discretion. (People v. Kaanehe, 19 Cal.3d 1, 14, 136 Cal.Rptr. 409, 559 P.2d 1028 (remedy sought there would not bind trial judge and did not raise the same concern).)

My second concern lies in the harm to petitioner for having served six months in the state prison (Nov. 21, 1979 May 23, 1980) on what can be only termed an invalid sentence. However, setting aside the sentence and enforcing the bargain will not undo that harm. (See People v. Kaanehe, 19 Cal.3d 1, 14-15, 136 Cal.Rptr. 409, 559 P.2d 1028.) I cannot perceive it as a justification for specific enforcement of the bargain in this case.4 Nor in light of the very serious nature of the diagnostic staff findings and report, do I find the result of the repudiation of the bargain so unfair as to require the invocation of the equitable remedy of specific performance. This case is not unlike those on appeal from judgment in which defendant was sentenced to state prison contrary to a plea bargain, and the court orders he be permitted to withdraw his plea. In these cases defendant has served a much longer time in state prison than the six months here. (E. g., People v. Johnson, 10 Cal.3d 868, 112 Cal.Rptr. 409, 559 P.2d 1028 (defendant sentenced to state prison July 10, 1972, contrary to promise of probation (p. 871, 112 Cal.Rptr. 409, 559 P.2d 1028); the opinion was filed March 11, 1974; the record does not disclose he was released on bail pending appeal); also People v. Morris, 79 Cal.App.3d 358, 158 Cal.Rptr. 722.)

The majority opinion says that section 1192.5, Penal Code “does not apply where a plea bargain has been broken,” but I read People v. Johnson, 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 P.2d 604 and People v. Kaanehe, 19 Cal.3d 1, 136 Cal.Rptr. 409, 559 P.2d 1028 to the contrary. Under Johnson (10 Cal.3d p. 872, 112 Cal.Rptr. 556, 519 P.2d 604), confirmed in Kaanehe (19 Cal.3d p. 14, 136 Cal.Rptr. 409, 559 P.2d 1028), and general principles of due process, it is relevant here that petitioner was neither advised of his right to withdraw his admission nor offered the opportunity to do so. There is no statutory provision for specific performance of a plea bargain. In my view such a remedy in this case would contravene the general principles of due process underlying section 1192.5, Penal Code.

Finally, I cannot conclude on the record before me that Judge London would be disqualified from handling further proceedings in this case. I find no bias by him against petitioner except to the extent that based on all of the matters before him he felt that a state prison sentence was appropriate. This is not the case of matters improperly communicated to the judge by the prosecutor as in People v. Kaanehe, 19 Cal.3d 1, 15, 136 Cal.Rptr. 409, 559 P.2d 1028. I can only presume that Judge London will properly exercise his judicial duties.

FOOTNOTES

FOOTNOTE.  

1.  That section provides in some detail the procedure to be utilized in the trial courts when a plea bargain is being made “(u)pon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, . . . .”The procedure includes the requirement that the court must warn a defendant upon acceptance of a plea that the court may change its mind, in which case a defendant shall be allowed to withdraw any plea made. The section does not apply where a plea bargain has been broken, and thus is inapposite here.

1.  Judge London stated in part: “The court has in connection with sentencing in this matter received, read and considered the diagnostic study and report from the Department of Corrections. The court has reviewed all of the various probation officers' reports, and for the record, has had a lengthy conference in chambers with the probation officers and both counsel. (P) (P) Mr. Klum (defense counsel), without repeating all that has been said in our various conferences, the court would indicate only that it is hopeful that on the defendant's other matter (battery conviction), the probation having some substantial period of time left, those programs to which you refer can be effected. (P) In this case I believe that the entirety of all of the written documentation as well as the arguments which have been previously presented by the probation department indicates that the defendant is certainly unamenable to any program of any nature. (P) The court is making a finding at this time that the defendant no longer is a suitable candidate for probationary supervision and accordingly, for a violation of Penal Code section 273a(1) defendant is sentenced to the state prison for the term prescribed by law.”

2.  The court in People v. Kaanehe, 19 Cal.3d 1, 136 Cal.Rptr. 409, 559 P.2d 1028, says that “When the breach is a refusal by the court to sentence in accord with the agreed upon recommendation, specific performance would entail an order directing the judge to resentence the defendant in accord with the agreement.” (P. 13, 136 Cal.Rptr. p. 417, 559 P.2d p. 1036.) We note that the bargain agreement herein carries with it five proposed alternative dispositions. Specific performance requires something definite to perform and the term or terms of the agreement must be sufficiently certain to make the precise act which is to be done clearly ascertainable (as in Stewart v. Superior Court, 94 Cal.App.3d 182, 196, 156 Cal.Rptr. 289.) An order directing fulfilment of the bargain here can amount to nothing more than a direction to the trial court not to do a certain act.

3.  A reading of the reporter's transcript of the oral proceedings on imposition of judgment and sentence convinces me that at that time Judge London's failure to comply with the bargain agreement was inadvertent. Neither the prosecutor nor defense counsel was the same counsel as those who entered into the bargain agreement three months and twelve days earlier. No one mentioned the bargain on November 21, 1979. Nothing in the record to the contrary it is evident the breach was neither willful nor deliberate and that it simply slipped the judge's mind that he made a commitment to petitioner. And for a reason not explained in the record, petitioner did not call the bargain agreement to Judge London's attention at that time. We note that seven days later (Nov. 28) petitioner wrote to Judge London asking for a new sentence hearing and for the first time calling to his attention the bargain; treated as an ex-parte request for rehearing, it was denied.

4.  Although this is not a factor in my consideration, the likelihood that the same prison sentence would have been imposed had the bargain been called to the attention of Judge London and petitioner had withdrawn his admission, cannot be denied. This is obvious from the judge's statements at the time of sentence. Moreover, it is apparent from the exhibits attached to the petition herein that proving the battery conviction and the other allegations of probation violation would have presented no problem to the prosecutor. Given the past history (Nov. 2, 1976 Nov. 21, 1979) of petitioner, the recommendations of the four supplemental probation reports and the findings of the diagnostic staff and report of the Department of Corrections, the conclusion that the disposition would have included revocation of probation and imposition of the precise two-year state prison sentence is inescapable.

JEFFERSON,* Acting Presiding Justice. FN* Retired Presiding Justice of the Court of Appeal, sitting under assignment by the Chairperson of the Judicial Council.

RADIN, J.,** concurs.