PRICE v. STATE

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

Gary Michael PRICE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, STATE of California, Real Party in Interest.

Civ. 65978.

Decided: January 28, 1983

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, James P. McGarry and Albert J. Menaster, Deputy Public Defenders, for petitioner. No appearance for respondent. John K. Van De Kamp, Dist. Atty., Harry B. Sondheim and Roderick W. Leonard, Deputy Dist. Attys., for real party in interest.

We issued alternative writ of mandate on petition of defendant Price who seeks an order of this court directing the superior court to set aside and vacate its order vacating his sentence and setting aside his pleas entered April 30, 1981, and reinstating the same.   An in depth examination of the record compels a denial of peremptory writ.

Price was charged in two informations:  the first (A149349), filed October 30, 1981, alleged nine counts—two counts of forcible rape, one count of sodomy and one count of oral copulation, and for each an armed (knife) allegation, two counts of robbery and two counts of attempted burglary and for each a use (knife) allegation, and one count of attempted burglary;  the second (A800064), filed December 23, 1981, alleged one count of robbery and a use (knife) allegation.   On April 30, 1982, Price appeared with his counsel Mr. McGarry in the master calendar court (dept. R) where Mr. McGarry negotiated a plea for Price with Mr. Mayer, assistant deputy district attorney;  upon the recommendation of Mr. Mayer who detailed to the court the proposed disposition, the court accepted Price's plea of nolo contendere to counts I and IX (A149349) and to the single count information (A800064) on which it immediately, and at his request, sentenced Price to 11 years in the state prison.   The remaining counts were dismissed on motion of Mr. Mayer.   Three days later (May 3, 1982) Mr. Schneirow the deputy district attorney to whom the Price case had been assigned, moved to vacate Price's sentence and set aside his pleas on the ground of fraud and deceit on the court.   Supporting and opposing points and authorities were filed and, after a lengthy evidentiary hearing, the motion was granted.   It is the order vacating Price's sentence and setting aside his pleas that is the subject of this petition.

I

JURISDICTION OF TRIAL COURT TO VACATE SENTENCE AND SET ASIDE PLEA

 The record shows that the sentence was entered in the minutes of the court on April 30, 1982;  no abstract of judgment or probation report was prepared nor was Price delivered to state prison although a temporary commitment order directing that he be delivered to state prison was prepared.   Petitioner contends that the entry of the minute order created a final judgment precluding the court from vacating the sentence and setting aside his pleas.

Petitioner relies on People v. McAllister, 15 Cal.2d 519, 102 P.2d 1072, in which the Supreme Court articulated the rule relating to the finality of criminal judgments which, since 1940, has been uniformally followed.  “If the sentence has been entered in the minutes of the court, or if the defendant has begun serving said sentence or has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced.   On the other hand, if the sentence pronounced has not been entered by the clerk in his minutes, and no legal restraint has been imposed upon the defendant by reason of sentence, then it is proper for the court to change the sentence originally pronounced.”  (Pp. 526–527, 102 P.2d 1072.)   Thus under McAllister, dicta in People v. Clinton, 243 Cal.App.2d 284, 288, 52 Cal.Rptr. 221.1  Notwithstanding, the general rule is that after sentence is entered in the minutes of the court the judgment becomes final.  People v. Thomas, 52 Cal.2d 521, 342 P.2d 889, is of little comfort to the People.   The court therein cited McAllister but said the rule did not prohibit a trial court from making a timely correction in a sentence which had not become a part of the record in the minutes.   Unlike in Thomas the sentence here had been entered in the minutes of the court.   We conclude that the entry of the sentence in the minute order on April 30, 1982 constituted a final judgment unaffected by the failure to deliver Price to prison and the failure to prepare the abstract of judgment.

II

POWER TO VACATE CRIMINAL JUDGMENT FOR FRAUD ON THE COURT

 A criminal court has inherent power at any time to correct clerical error in its records so as to make the records reflect the true facts, and that power exists independently of statute.  (In re Candelario, 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729.)   While the finality of a criminal judgment precludes the court from disturbing it because of judicial error (Smith v. Superior Court, 115 Cal.App.3d 285, 290, 171 Cal.Rptr. 387), it may do so if that error results in the entry of a void judgment or for “[f]undamental jurisdictional defects, like constitutional defects” (People v. Thomas, 52 Cal.2d 521, 528, 342 P.2d 889).   However, the question whether some non-statutory equity power exists for a criminal court to vacate a judgment procured through fraudulent behavior by an officer of the court has not yet been resolved.

Cited to our attention by the People are criminal cases involving fraud or concealment on the part of the defense in a variety of situations, but only one is directed to setting aside a plea bargain, and that was decided in a prejudgment context (People v. Johnson, 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 P.2d 1222 [defendant lied as to his name and previous record] ).  The People also rely on People v. Woods, 84 Cal. 441, 23 P. 1119, in which a criminal court on its own set aside a final judgment for fraud practiced on it.   However, the Supreme Court did not address the fraud issue because it held that the circumstances were such that the judgment the superior court had been induced by fraud to enter was in fact void for want of jurisdiction.  (P. 443, 23 P. 1119.)

Petitioner seeks to equate the People's motion herein with a defense motion to vacate judgment and sentence and to withdraw plea of guilty relying on People v. Evans, 185 Cal.App.2d 331, 8 Cal.Rptr. 410;  People v. Adams, 100 Cal.App.2d 841, 224 P.2d 873, and cases treating such defense motion as an application for writ of error coram nobis.   Thus he would have us impose on a prosecutor, even the court, on motion to vacate a judgment procured by fraud perpetrated upon the court through the behavior of an officer of the court the same standards a defendant must meet on his motion to vacate judgment and withdraw his plea on the ground of a material misrepresentation by his counsel.   Those standards are set up in People v. Adams, 100 Cal.App.2d 841 at page 842, 224 P.2d 873:  “It may be noted preliminarily that a motion to vacate a judgment and to withdraw a plea of guilty is of the nature of an application for a writ of error coram nobis;  and it is now well established that such an application will be granted only where some fact exists which, had it been known to the court, would have prevented rendition of the judgment, which fact was not known to defendant at that time, and which, without fraud, mistake or negligence of the defendant, was not presented to the court.”   See also (People v. Evans, 185 Cal.App.2d 331, 333, 8 Cal.Rptr. 410.)   Petitioner argues that these standards apply here and no proper showing was made.

Adams and Evans each involved a defendant who moved to withdraw his plea of guilty after entry of judgment on the ground of a material misrepresentation made to him by his counsel.   In each case the motion to vacate judgment and to withdraw plea of guilty was treated as of the nature of an application for a writ of error coram nobis and in each the court denied the motion for failure of defendant to make a proper showing.   But the case at bench differs from Evans and Adams in several critical particulars.   Price is well satisfied with his plea and sentence as is his counsel, Mr. McGarry;  it is the prosecutor who made the motion.   But of greater significance is the fact that fraud was here asserted, not one practiced on Price or his counsel or even on the prosecutor but on the court;  it is on the court that the court found the fraud to have been perpetrated, and it is on that basis the court granted the motion.

 Smith v. Superior Court, 115 Cal.App.3d 285, 171 Cal.Rptr. 387, although factually dissimilar to the instant case, gives us some guidance.   In Smith the prosecutor moved to vacate an order dismissing a prosecution for embezzlement (which order previously had been made on the People's motion to dismiss) on the ground of a mutual mistake of all concerned that there were no pending appellate matters in the case;  the motion to vacate was granted.   No fraud was involved.   This court granted defendant's petition for writ of mandate concluding “that at least where no actual fraud has been perpetrated upon the court, a criminal court has no authority to vacate a dismissal entered deliberately but upon an erroneous factual basis.”  (P. 287, 171 Cal.Rptr. 387.)   Although the court rejected the People's argument that a criminal court has inherent power to routinely vacate its judgments to correct for misapprehensions, it did “not reach the question of whether a criminal court may vacate a judgment of dismissal if procured through fraudulent behavior by an officer of the court.   The facts presented here in no way suggest such behavior.”  (P. 292, fn. 3, 171 Cal.Rptr. 387.)   Nothing in Smith, the genesis of which was a prosecutor's motion, suggests the writ-of-error-coram nobis approach;  nothing therein suggests that a prosecutor's motion to vacate a criminal judgment induced by fraud practiced on the court cannot invoke the inherent power of the court to act to preserve the effectiveness of the judicial process, in fact, there is every indication in Smith that subsequent to entry, an order or judgment may be vacated upon a showing it was procured through fraud perpetrated on the court by fraudulent behavior of an officer of the court.   To hold that a criminal court does not have inherent power to deal with such fraud would render it impotent to protect the integrity of our system of criminal justice.

III

SHOWING OF FRAUD ON COURT

 Evidence adduced at the lengthy hearing on the motion supports our conclusion that a sufficient showing of fraud was made justifying the court's order.   The record demonstrates that the preferred sentence for defendant Price was procured through conduct of an officer of the court that amounted to the fraud found by the court to have been perpetrated upon it.

In early November 1981 the case of People v. Price (A149349) was assigned to Mr. Schneirow, deputy district attorney who then had the responsibility to prepare the case, conduct all negotiations of possible dispositions and try the case;  Price was represented by Mr. McGarry, a deputy public defender.   Also pending against Price was an unrelated robbery charge (A800064) being handled by deputy district attorney Halpin.   After working on People v. Price, Mr. Schneirow's evaluation of the case was a 55-year maximum potential sentence.

Late in November 1981 Mr. McGarry approached Mr. Schneirow for an indicated sentence;  Mr. Schneirow told him the sentence would have to be 40 years were Price to plead.   Thereafter discussions between them relative to disposition continued at about every appearance counsel made, Mr. Schneirow demanding a 40-year sentence which was totally unacceptable to Mr. McGarry.   After January 22, 1981, Mr. Schneirow repeatedly told Mr. McGarry that if Price did not accept the 40-year offer he intended to go to trial.   About March 12, 1982, Mr. McGarry, having been unsuccessful with Mr. Schneirow, wanted to involve Mr. Mayer, assistant deputy district attorney, in the negotiations but Mr. Schneirow told Mr. McGarry it was his (Schneirow's) case and he would have to deal with him, and his offer was firm.   On at least four occasions Mr. McGarry told Mr. Schneirow he believed the counts involving Mary B. were weak but each time, Mr. Schneirow disagreed saying those counts were good giving him his reasons.   Finally all discovery was completed and Mr. Schneirow sent a memorandum to this effect to Mr. McGarry stating if he disagreed to so advise him;  the trial was set for April 22, 1982.

On April 26, 1982, People v. Grimaldy and People v. White, in which Mr. Schneirow represented the People and Mr. McGarry represented the defendants, were sent out for trial to Judge Katz in department O;  People v. Price trailed these two cases for trial.   During the Grimaldy trial the investigator, who was also the investigator in the Price case, and Mr. Schneirow both mentioned to Mr. McGarry they were prepared to try Price;  Mr. Schneirow even asked Judge Katz in chambers in the presence of Mr. McGarry, if he was willing to hear Price which was trailing for trial, and he responded he might be willing to do so.   On numerous occasions it was made clear to Mr. McGarry by Mr. Schneirow and the investigator that they were ready for trial in Price and that it was their intention to try him after Grimaldy and White.

On Thursday, April 29, 1982, Mr. Schneirow told Mr. McGarry that now that Grimaldy was almost over if he wanted to talk about a plea in People v. White they could get down to trying Price;  Mr. Schneirow and Mr. McGarry, still in the Grimaldy trial, were ordered by Judge Katz to return to department O at 10 a.m. the next morning, Friday, April 30.   On April 30 Mr. Schneirow appeared in department O as ordered at 10 a.m. but Mr. McGarry was not there.   Mr. Schneirow had no reason to and did not go to department R, the master calendar court, because he did not know that anything involving him was happening there;  he was unaware that People v. Price was on calendar for April 30 in department R for he had not prepared a “ready sheet” because he and Mr. McGarry were at an impasse as to the 40-year offer and the Price case was trailing Grimaldy and White for trial.   Mr. Schneirow waited in department O for Mr. McGarry who finally arrived after 11 a.m.   Mr. Schneirow conversed with Mr. McGarry about trying Price after People v. White but Mr. McGarry made no comment.   Mr. McGarry never told Mr. Schneirow he was going or had gone to department R, the master calendar court, and Mr. Schneirow did not know that Mr. McGarry had just been there.   They proceeded with the Grimaldy trial then recessed until Monday.   Mr. Schneirow returned to his office where for the first time he learned from a newspaper reporter that a plea had been taken that morning from Price in department R;  he checked and found this to be true and that department R was closed that Friday afternoon and had adjourned until Monday morning.   Early Monday morning he filed the within motion to vacate sentence and set aside plea in People v. Price in department R.

On April 30, 1982, Mr. Mayer was assigned as calendar deputy in department R, the master calendar department, where all cases start;  his job was to dispose of cases for arraignment and plea, but he had no function in attempting to dispose of cases specially assigned to another deputy.   A calendar of cases set in department R is daily prepared by a secretary who notes the deputy to whom each is assigned;  each deputy fills out a “ready sheet” listing all cases in department R including the offered disposition and whether ready for trial.   On April 30 Mr. Mayer and deputy district attorney Cohen were working in department R;  People v. Price appeared on calendar and Mr. Mayer thought it belonged to Mr. Halpin whose cases he was handling.   Early that morning Mr. McGarry came into the courtroom, approached Mr. Mayer and said the time had come to dispose of the Price case, which meant to Mr. Mayer that Mr. McGarry was interested in settlement;  there was no “ready sheet” indicating to him that People v. Price was specially assigned to another deputy and no one told him otherwise, thus Mr. Mayer sent for the files in the Price rape and robbery cases;  Mr. McGarry told Mr. Mayer he was interested in entering into a plea disposition in the 10-year sentence range in both cases and the evidence relative to one victim had seriously deteriorated and in his opinion the prosecution could not make a case as to her.   Mr. McGarry never told Mr. Mayer that Mr. Schneirow was the trial deputy assigned to Price or that it was Mr. Schneirow's view that the evidence was sufficient as to that victim or that Mr. Schneirow had made a 40-year offer which he had refused or that they had been negotiating for sometime or that the case had to go to trial unless he accepted the 40-year offer.   Had Mr. Mayer known the foregoing he would not have interfered between Mr. McGarry and Mr. Schneirow without the latter's consent.

Relying upon what Mr. McGarry told him and his quick review of the file and unaware that Mr. Schneirow was assigned to Price and of prior negotiations therein, Mr. Mayer considered the disposition of 11 years on both cases not to be unreasonable, and they agreed.   Thus in department R before Judge Horowitz the parties began proceedings on a plea bargain.   Mr. McGarry requested, without giving a reason therefor, that Price be sentenced immediately, and Price waived a probation report.   Thus with a promise of 11 years approved by the court on the recommendation of Mr. Mayer, Price entered a plea of nolo contendere to count I (aggravated rape) and was sentenced to 8 years and an additional year for the armed allegation, to count IX (attempted first degree burglary) and was given a consecutive sentence of 8 months, and to information A800064 (robbery) with use of a knife and was given a consecutive sentence of one year and four months, a total of eleven years.   Thereafter Mr. Mayer dismissed the remaining seven counts (forcible rape, sodomy, oral copulation, two counts of robbery and two counts of burglary).   Mr. Mayer would have expected Mr. McGarry to inform him of any discussion he had with Mr. Schneirow or of any dispute they might have had on the merits;  Mr. Mayer relied on Mr. McGarry and in turn, the court relied on him and Mr. McGarry as to the fairness of any disposition;  had he the information known to Mr. Schneirow he would not have recommended to the court that it accept the disposition.

No evidence was offered on behalf of petitioner.

In a lengthy order the court summarized the foregoing evidence, discussed the necessity for the court because of its volume of business to rely upon the “honesty, integrity and judgment of attorneys who come before it” reiterating the court's dependence on them and their integrity, and dwelt upon the role of each party in department R inasmuch as the court knows nothing of the facts of any case before it, only the charges, and plea negotiations are handled in “an open and honest way.”   The court noted that Mr. McGarry was “certainly aware” that Mr. Mayer “had an overwhelming burden in this Court and is particularly vulnerable”;  that Mr. Schneirow was negligent in not filing a status report for the district attorney's file and not checking when the case is on calendar;  that Mr. McGarry came into court and “talked and talked to Mr. Mayer.  [¶] He knew he had to deal with Mr. Mayer with Mr. Schneirow's agreement and permission.   He knew that Mr. Mayer knew nothing about this case.”;   that Mr. McGarry said nothing to Mr. Mayer about Mr. Schneirow being the trial deputy and did “conduct negotiations with Mr. Mayer as though no trial District Attorney existed, knowing that the longstanding custom has been and procedure of this jurisdiction and Court is to the contrary.  [¶] Mr. McGarry could therefore know and assume that Mr. Mayer was at a tremendous disadvantage.”

After pointing up various American Bar Association Standards for prosecutors and defense counsel, the court found that Mr. Mayer “performed in this matter to the full level of his responsibility.   He acted properly․  [¶] The Court followed his lead and the plea and the sentence followed accordingly.”;   Mr. Mayer and “thereafter, this Court were clearly misled both by Mr. Schneirow's negligence in not filing a status report for the file and, more importantly, by Mr. McGarry's failure to apprise and tell Mr. Mayer Mr. Schneirow was the trial deputy in this case.  [¶] That failure was a serious omission and resulted in a fraud being presented to this Court” (emphasis added), commenting further that Mr. McGarry was dealing with an uninformed attorney and knew it.   The court also said there was no direct testimony as to Mr. McGarry's motivation but that his argument indicated his failure to tell Mr. Mayer about Mr. Schneirow was because of a feeling of extreme anger and simply not wishing to deal with Mr. Schneirow;  and “This Court is not finding that the omission was deliberately done to intentionally mislead Mr. Mayer or intentionally mislead this Court” but that the motivation behind his omission “is not the decisive factor in this case.”  [¶] What is decisive is that the omission was made, that the omission resulted in Mr. Mayer's actions and recommendation to this Court, which resulted in the Court's actions.  [¶] Actions of this Court were based on that omission which misled and deceived this Court.   This Court is under an obligation to see that fundamental fairness is maintained and that a miscarriage of justice does not occur.”  (Emphasis added.)

The court specifically stated in its order that it had been misled by Mr. McGarry's failure to apprise Mr. Mayer that Mr. Schneirow was the trial deputy in the Price case and that failure was a serious omission that resulted in a fraud being perpetrated upon the court.   In obvious deference to a lawyer who daily appears in department R, the court said it was “not finding that the omission was deliberately done to intentionally mislead Mr. Mayer or intentionally mislead this Court.” 2  This negates actual fraud, but places the fraud specifically found by the court to have been perpetrated on it in the category of constructive fraud which consists “In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him;  ․  (§ 1573, subd. 1, Civ.Code.)

 Whether or not Mr. McGarry owed a duty to deputy district attorney Mayer and breached that duty is unimportant here.   What is significant is that as a lawyer, in addition to his duty of fidelity to his client, Mr. McGarry as an officer of the court owes the duty of good faith and honorable dealing to the judicial tribunal before which he practices his profession and to which he is answerable for the proper performance of his professional duties.   The court did not say Mr. McGarry's nondisclosure was directly to the court but that his omission of failing to telling Mr. Mayer that Mr. Schneirow was the trial deputy in the Price case misled Mr. Mayer which in turn misled the court.   Mr. McGarry who made daily appearances in department R was experienced in the operating procedures therein and obtained the plea and sentence in a department which he knew, because of its heavy plea and arraignment calendar, had to rely on the integrity and good faith of counsel.   If by virtue of the nature of the master calendar department the court knows nothing of the facts of the cases before it and must rely entirely upon the deputy district attorney's representations and recommendations in accepting plea bargains bargains calling for preferred sentences, then to say that Mr. McGarry owes no duty to be honest and aboveboard in his dealings with the deputy district attorney knowing that the court must and will rely on the deputy district attorney and trust and act on his recommendation, is to ignore the critical importance of the fundamental relationship of honesty and trust between counsel and the court to the integrity of our criminal justice system.   This was explained by the court in its finding that Mr. McGarry's omission “resulted in Mr. Mayer's action and recommendations to this Court, which resulted in the Court's actions.  [¶] Actions of this Court were based on that omission which misled and deceived this Court.”

 Mr. McGarry as a lawyer is bound by the Business and Professions Code.   Section 6068 thereof provides in pertinent part, “It is the duty of an attorney:  ․ (d) To employ, for the purpose of maintaining the causes confided to him such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”   This section “unqualifiedly require[s] an attorney to refrain from acts which mislead or deceive the court ․”  (Sullins v. State Bar, 15 Cal.3d 609, 620–621, 125 Cal.Rptr. 471, 542 P.2d 631.)   In describing the defense function and role of counsel for the accused, the American Bar Association Standards for Criminal Justice, Defense Function, Standard IV, section 1.1, among other things defines his relation to the court as “both advocate for the client and counselor to the Court․  [¶] It is fundamental that in relations with the Court and the prosecutor, defense counsel must be scrupulously candid and truthful in representations of any matter before the Court.  [¶] This is not only a basic ethical requirement, but is essential for the lawyers to be effective in the role of advocate, for if the lawyer's reputation for veracity is suspect, he or she will lack the confidence of the Court when it is needed most to serve the client.”   It hardly can be denied that as an officer of the court defense counsel owes to the court not only an ethical but a legal duty of good faith and fair dealing and an obligation to never seek to mislead the court.  (DiSabatino v. State Bar, 27 Cal.3d 159, 162–163, 162 Cal.Rptr. 458, 606 P.2d 765;  Davidson v. State Bar, 17 Cal.3d 570, 574, 131 Cal.Rptr. 379, 551 P.2d 1211;  Sullins v. State Bar, 15 Cal.3d 609, 620–621, 125 Cal.Rptr. 471, 542 P.2d 631;  Grove v. State Bar, 63 Cal.2d 312, 315, 46 Cal.Rptr. 513, 405 P.2d 553.)

 Petitioner takes refuge in the court's finding of “omission” arguing that for fraud there must be an affirmative misrepresentation.   Constructive fraud comprises all acts and omissions and concealments involving a breach of duty which mislead another to his damage.  (Main v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 67 Cal.App.3d 19, 32, 136 Cal.Rptr. 378;  County of Santa Cruz v. McLeod, 189 Cal.App.2d 222, 234, 11 Cal.Rptr. 249;  Martin v. Martin, 110 Cal.App.2d 228, 233, 242 P.2d 688;  Estate of Arbuckle, 98 Cal.App.2d 562, 568, 220 P.2d 950.)   But as applied in the context of that special relationship between court and counsel, what better source of authority addressing the issue of misleading the court through omission or concealment of a material fact by an officer of the court exists than those Supreme Court cases of review of disciplinary proceedings initiated by the State Bar, petitioner's assertion they are “simply not authority here” notwithstanding.   These cases, although technically not fraud cases but involving misconduct calling for discipline, nevertheless define the lawyer's duties and obligations to the court, particularly the obligation to refrain from acts or omissions which mislead or deceive the court.   An omission or concealment occurred in DiSabatino v. State Bar, 27 Cal.3d 159, 162 Cal.Rptr. 458, 606 P.2d 765, consisting of counsel's failure to disclose to a judicial officer previous efforts to obtain bail reduction for a client.   Citing section 6068, subdivision (d), Business and Professions Code, and discussing the lawyer's duty of disclosure, the court said, “It is settled that concealment of material facts is just as misleading as explicit false statements, and accordingly, is misconduct calling for discipline.   [Citations.]  [¶] Petitioner clearly had an affirmative duty to inform Commissioner Ziskrout fully and completely as to all relevant facts and circumstances regarding his request for bail reduction.”  (27 Cal.3d at pp. 162–163, 162 Cal.Rptr. 458, 606 P.2d 765.)  DiSabatino relied on Sullivan v. State Bar, 15 Cal.3d 609, 125 Cal.Rptr. 471, 542 P.2d 631, holding that a lawyer misled and deceived the court by failing to disclose to it the receipt and contents of a certain letter (p. 621, 125 Cal.Rptr. 471, 542 P.2d 631);  and on Davidson v. State Bar, 17 Cal.3d 570, 131 Cal.Rptr. 379, 551 P.2d 1211, in which counsel failed to disclose to the judge certain material facts in a child custody case (p. 574, 131 Cal.Rptr. 379, 551 P.2d 1211).   Cited by the foregoing cases is Grove v. State Bar, 63 Cal.2d 312, 46 Cal.Rptr. 513, 405 P.2d 553, in which the court said at page 315, 46 Cal.Rptr. 513, 405 P.2d 553:  “The concealment of a [opposing counsel's] request for a continuance misleads the judge as effectively as a false statement that there was no request.   No distinction can therefore be drawn among concealment, half-truth, and false statement of fact.  [Citation.]  ‘It is the endeavor to secure an advantage by means of falsity which is denounced.’  [Citation.]”

 The dissent opinion is predicated on the false premise that we have held that the deception or fraud perpetrated on the trial court was based on Mr. McGarry's failure to disclose “the nature, extent, contents, or even the fact of his negotiations” with Mr. Schneirow, he “had been negotiating the case with a different deputy district attorney who would not make an agreement satisfactory to the defendant,” “the nature, content, or even the fact of conversations with other deputy district attorneys,” what Mr. Schneirow “thought about the disposition” of the case, and “his unsuccessful attempts to negotiate”;  and his failure to “volunteer information to opposing counsel or the court that is contrary to the interests of the client.”   No one suggests, least of all this court, that Mr. McGarry failed to do any of the foregoing, had any duty to anyone to make any such disclosures or that the deception or fraud perpetrated on the trial court consisted of a breach of any such duty.   We have simply held that the evidence supports the trial court's finding that it was misled and deceived by “Mr. McGarry's failure to apprise and tell Mr. Mayer Mr. Schneirow was the trial deputy in this case.  [¶] That failure was a serious omission and resulted in a fraud being presented to this Court.”   We cannot accept the premise that the statement to Mr. Mayer that Mr. Schneirow was the trial deputy in the Price case would result in the disclosures or dire consequences feared by the dissent.   Nothing about such a statement conjures up self-incrimination or confidential attorney-client constraints, invokes the attorney-client or work product privilege, jeopardizes the constitutional right to assistance of counsel or erodes our adversary system of justice.   According to Mr. Mayer, had Mr. McGarry told him that Mr. Schneirow was the trial deputy in the case, he would not have interferred with the relationship between Mr. McGarry and Mr. Schneirow but would have left the case to Mr. Schneirow.   Mr. McGarry did not have to negotiate with Mr. Mayer;  he voluntarily created the situation by going over Mr. Schneirow's head to obtain a disposition more favorable to Price, indeed, well discharging his professional duty to his client.   But we agree with the trial court that such duty of fidelity to client cannot excuse Mr. McGarry's failure to disclose to Mr. Mayer the material fact that Mr. Schneirow was the trial deputy which in turn resulted in a fraud being presented to the court which had to and did totally rely on the representations of Mr. Mayer as to the value of the Price case.

One cannot read this record and not conclude that the dissent is far too indulgent of conduct that cannot be condoned if the integrity of our system of criminal justice is to be preserved.

Petition for writ of mandate and/or prohibition is denied;  alternative writ of mandate is discharged.

I respectfully dissent.

By its decision the majority impresses upon the criminal defense bar of this state an intolerable burden.   The parameters of that burden are undefined, vague, and ambiguous.   At best, defense counsel will be required to inform the court as to each representative of the district attorney's office with whom he has spoken and, at worst, defense counsel will be required, at his peril, to assess whether compliance with this court-created duty to divulge information to the court conflicts with a defendant's rights against self-incrimination under the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution.   The burden created by the majority also appears to be a limitation on and perhaps in derogation of the attorney-client privilege, the work product privilege, or a combination of both.   Further, as I will discuss, the action of the majority tends to intrude upon a defendant's right to the assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution.

The majority fails to cite any authority for the existence of a duty that counsel disclose to an adverse attorney the nature, extent, content, or fact of his negotiations with the adverse attorney's colleagues, and I am aware of no such authority.   If, as I believe, the majority is creating such a duty, I respectfully suggest that it should be clearly defined.

Many questions are left unanswered by the majority opinion.   It does not indicate whether the nebulous duty here recognized requires defense counsel to disclose to the court the content of every unsuccessful conversation with every deputy district attorney with whom he has spoken prior to reaching accord or if such duty requires defense counsel to disclose to the court the extent of his authority from the client to negotiate.   For example, if counsel, authorized to indicate his client would enter a plea to second degree murder, persuaded one deputy district attorney to accept a plea to voluntary manslaughter when another deputy district attorney who had insisted upon a plea to second degree murder happened not to be available, would defendant's counsel be required to relate to opposing counsel or the court only the fact of prior discussion or would he be required to repeat the arguments that the first deputy district attorney had urged upon defense counsel?   To state the proposition discloses its absurdity.

The majority holds that defense counsel in this case misled and deceived the court by failing to disclose to the court (as distinguished from Deputy District Attorney Mayer) that defense counsel had been negotiating the case with a different deputy district attorney who would not make an agreement satisfactory to the defendant.   Although the majority asserts that it is unimportant to its decision “Whether or not Mr. McGarry owed a duty to deputy district attorney Mayer and breached that duty,” it should be obvious that the majority is actually finding a duty is owed by defense counsel because he could not, of course, divulge information to the court without divulging it to opposing counsel.  (Majority opn., ante, p. 839.)   Further, as the majority seems to indicate in its discussion on pages 839–840, ante, that Mr. McGarry did owe some undefined duty to opposing counsel, it would appear that the distinction between defense counsel's duty to the court on the one hand and to opposing counsel on the other is illusory.   The imposition of this undefined duty, in my opinion, requires defense counsel to assist his opponent, thus eroding our adversary system of justice.

Even though the majority does not define the duty it recognizes, I submit that the existence of a duty on the part of defense counsel to disclose to Mr. Mayer not only the fact but also the nature and content of his negotiations with Mr. Schneirow is essential to support a finding of constructive fraud by defense counsel.  Civil Code section 1573 provides in subdivision 1 that constructive fraud consists “In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him ․”

It seems clear that if indeed defense counsel had the duty with which he is here charged, then either he or someone claiming “under him” must have gained an advantage and another must have been prejudiced.   I surmise that the majority appraises defendant's position as being “one claiming under” his attorney.   Neither the People nor the majority indicates what advantage has been gained either by counsel or by the defendant.   As there is no information in the record concerning why the disposition made by the district attorney and approved by the court was unjust or in any way constituted a miscarriage of justice, the advantage gained by the defendant or the prejudice to the People or the court is speculative and perhaps impossible to assess.

As I indicated, the creation by the majority of a duty by defense counsel to inform each deputy district attorney and the court of the nature, content, or even the fact of conversations with other deputy district attorneys, in my view, interferes with the defendant's right to the assistance of counsel which is guaranteed by the Sixth Amendment to the United States Constitution and section 15 of article I of the California Constitution.   This is so because it places upon counsel, by reason of his status as an attorney (see majority opn., ante, at p. 840 et seq.), a duty that I do not believe could be found to exist on the part of a defendant who represents himself.   That is, had Mr. Price been his own counsel at the time he entered his bargained-for plea, I do not believe that the majority or even the People would maintain that Mr. Price had a duty to advise Mr. Mayer concerning what Mr. Mayer's subordinates had done or said or that he had even spoken with them.  (U.S. Const., 5th Amend.;  Cal. Const., art. I, § 15.)   If this is so, then in this respect Mr. Price would have had an advantage by being unrepresented rather than having counsel.   Stated differently, the imposition of a duty of disclosure on an attorney that cannot be imposed on an unrepresented defendant constitutes judicial interference with the defendant's right to counsel.

Nowhere in the briefs submitted by the People, in the People's oral argument, in the findings of the trial judge, or in the decision of the majority are any facts set forth indicating that there was any unfairness or miscarriage of justice in this case.   Nowhere is it alleged or even inferred that defense counsel, Mr. McGarry, misrepresented or concealed any facts which misled counsel or the court concerning either the merits of this case or the evidence available to both sides.

In essence, what Mr. McGarry is accused of doing is failing to conduct himself as though he were an adjunct or special assistant deputy district attorney in order to insure that one deputy district attorney knew what his colleague and subordinate thought about the disposition of a particular case.   There exists in the record no argument that Mr. Schneirow's evaluation of the evidence that had been marshaled or of what would constitute an appropriate sentence was correct or that Mr. Mayer's evaluation thereof was wrong.   Both the majority and the court below impugn the integrity of defense counsel and subject him to possible disbarment for committing fraud based only upon the self-serving declaration of Mr. Mayer that had he known what Mr. Schneirow “indicates” he knows, he wouldn't have made the disposition agreement that he made.  (See Stats.1982, ch. 181, No. 3 West's Cal.Legis.Service, pp. 826–827.)

It should be borne in mind that the role of defense counsel in a criminal case is significantly different from that of the prosecutor.   Although counsel for each side is bound to scrupulously avoid overt misrepresentation, the respective duties of volunteered disclosure are diametrically opposed.   If the prosecutor is aware of exculpatory evidence in his case, he is bound to apprise defense counsel thereof (ABA Standards, Prosecution Function, std. 3.11), but if defense counsel is aware of incriminating evidence, he is ethically bound, with rare exception, not to reveal that fact.   Indeed, in this case, defense counsel alleges that Mr. Schneirow deliberately failed in his prosecutorial duty to disclose to Mr. McGarry, and in fact concealed from him, that the chemical evidence obtained by the People indicates that the semen found in the vaginal and anal canals of Mary B. could not have been secreted by Mr. Price.

The prosecutor must endeavor to accomplish justice and to facilitate the efficient administration of criminal law.   The defense counsel owes his first duty to his client, not to the accomplishment of justice or the furtherance of the goals of the criminal justice system.   He must give his client's rights and privileges precedence over his own.  (ABA Standards, Defense Function, std. 1.6.)1  This constant tension between the defense attorney's duty to his client and the requirements of adherence to the ethical standards of the legal profession cannot be resolved by simply mandating that counsel be “honest and aboveboard in his dealings with the deputy district attorney knowing that the court must and will rely on the deputy district attorney and trust and act on [the deputy district attorney's] recommendation ․”  (Majority opn., ante, at p. 840.)   Although the statement by the majority that an attorney is required “ ‘․ to refrain from acts which mislead or deceive the court ․’ ” (majority opn., ante, at p. 840) is a beautiful abstraction and undoubtedly true, it nevertheless fails to address the distinction between a duty not to misrepresent or to dissemble and a duty to volunteer to opposing counsel or the court information that is contrary to the interests of the client whom defense counsel serves.

The court below and apparently the majority herein seem to believe that the defendant and his counsel are somehow burdened by the knowledge that department R has a heavy plea and arraignment calendar so that in some manner an additional duty is owed to the court or opposing counsel to maintain “the integrity of the criminal justice system.”   Such a concept might be true in an inquisitorial system of justice, but it is entirely foreign to our adversary system.   Neither a defendant nor his counsel owes a duty of cooperation with the People in the prosecution of its case.   To the contrary, a defendant's only duty is to appear for trial, and he may defend himself or not, as he sees fit.   His counsel may not actively misrepresent, but he may, and indeed often must, refuse to reveal facts known to him which would be valuable to the People.   The only exception should remain that regarding demonstrative evidence which may come into defense counsel's possession and to which the People are clearly entitled.

The court below characterized Mr. Schneirow's conduct as negligent, but found Mr. Mayer to be without fault.   In a sense, it may be true that Mr. Mayer was not personally at fault, but he cannot be absolved of the responsibilities of the position he occupies as assistant head deputy of the Van Nuys office of the district attorney.   As Mr. Schneirow's supervisor, he was responsible for Mr. Schneirow's negligence.   Further, the record indicates that the reason Mr. Mayer did not inquire of Mr. McGarry as to which deputy district attorney was assigned to the case was twofold.   First, Mr. Mayer had forgotten, or did not have in mind, certain matters of which he had obtained direct knowledge.   He previously knew the case was being handled by Mr. Schneirow.   He had been present on various occasions when Mr. Schneirow and Mr. McGarry discussed the case, and Mr. Schneirow had discussed with him the fact that the exculpatory slides were missing.   He also knew that it was the practice in the Van Nuys office to “pair” Mr. Schneirow with Mr. McGarry.   That is, the district attorney's office habitually assigned to Mr. Schneirow the cases wherein Mr. McGarry represented the defendant.   Second, the district attorney's calendar sheet indicated to Mr. Mayer that Deputy District Attorney Phil Halpin was the attorney to whom the case was assigned.   Mr. Mayer testified that Mr. Halpin was in another courtroom conducting a long trial.   He further testified that he didn't go any further than accepting Mr. McGarry's representation because he relied upon the files he had before him.   He relied upon the fact that the district attorney's records indicated the files belonged to Mr. Halpin and that there were no notations on those records that “there was anything special.”   He also relied on the fact that he had been given no “ready sheet” by Mr. Schneirow indicating that the case was special or was specially assigned.

The trial court's ruling and the majority's opinion imply that it was proper for Mr. Mayer to rely on these various facts.   On the other hand, there is nothing in the record or the majority opinion to indicate why it was improper for Mr. McGarry to rely on the assumption that the assistant head deputy district attorney with whom he was negotiating had been properly informed concerning this important case.   Nor is there any indication as to why Mr. McGarry should have been prompted to inquire of Mr. Mayer if Mr. Mayer knew what he was doing or whether the district attorney's employees had properly completed their duties.   Although at the hearing to vacate the plea Mr. Mayer testified that he would not have reached the agreement with Mr. McGarry had he “had the knowledge that Mr. Schneirow indicates he has,” Mr. Mayer made no effort to discover what Mr. Halpin thought of the case.   It must be remembered that this case had been in superior court for a full five months prior to the plea bargain and that Mr. Mayer himself had conducted the arraignment of Mr. Price.   At the time of that arraignment, Mr. Mayer had evaluated the case as requiring an agreement for a 10-year sentence.   Upon his reevaluation, he settled for 11 years.   There is nothing in the record to substantiate the conclusion that Mr. Mayer's or Mr. McGarry's evaluation is incorrect, other than the evaluation of Mr. Schneirow.

None of the obvious deficiencies in the prosecution's conduct of the People's business at the disposition hearing is noted by the majority or the trial judge.   Likewise, the majority disregards the familiar principle of law that imputes to each of the deputies of the district attorney's office the knowledge of the case possessed by each other deputy.

I raise these questions, not in denigration of Mr. Schneirow, Mr. Mayer, or of the trial court, but rather to demonstrate that the fault, if any fault there be, with the manner in which the plea bargain was reached by counsel and ratified by the court lay in the office of the district attorney, not in defense counsel, and by no means should it be attributed to the defendant himself.   The objection of the People, the trial court, and the majority of this court is based in the last analysis solely upon the fact that a subordinate deputy district attorney is dissatisfied with the conclusion reached by a superior deputy district attorney concerning what constituted an appropriate disposition of serious cases.

The majority cites cases dealing with disciplinary proceedings initiated by the State Bar as authority for the duty that it here imposes.   In such matters it is recognized that counsel are under a professional duty to divulge to judicial officers certain facts such as previously unsuccessful prosecutions before other judicial officers of the same motion they are presently prosecuting.   It is too much of a leap in logic to assert, from this basis, that a defense attorney has a comparable duty to report to a prosecutor his unsuccessful attempts to negotiate a particular case with some other deputy district attorney.   Indeed, as indicated ante, such a rule might be deemed to be in violation of counsel's professional responsibilities to his client.   An adjudication of the conduct of Mr. McGarry in terms of ethical standards is, of course, not for this tribunal, nor was it pertinent to the trial court proceedings.

Neither the People nor the majority points to any authority that requires that defense counsel report his conversations with or on behalf of his client with any other person even if he is questioned in regard thereto.   Yet the majority holds that defense counsel must volunteer such information!   I believe the majority's decision will cause consternation to every thinking criminal defense counsel who digests it and who realizes its implications.

I would issue a peremptory writ.

FOOTNOTES

1.   People v. Clinton, 243 Cal.App.2d 284, 52 Cal.Rptr. 221, does say that the court is without jurisdiction to vacate or modify a sentence after it “has been entered in the minutes of the court and the defendant has begun serving his sentence” (p. 288, 52 Cal.Rptr. 221, emphasis added), but the use of the word “and” instead of “or” as used in McAllister, appears to be the result of inadvertence because the court in Clinton relies only on People v. McAllister, 15 Cal.2d 519, 102 P.2d 1072.   Moreover, the quoted statement is of little significance in Clinton inasmuch as both conditions there existed—the sentence was entered in the minutes and defendant had begun serving his term.

2.   The court did not make a finding that the omission was not deliberately done to intentionally mislead Mr. Mayer or the court.

1.   Because of this restaint, it probably would have been improper for Mr. McGarry to testify at the hearing on the People's motion to vacate the sentence.   He could not, and did not, testify for two important reasons:  Mr. McGarry had to appear at the hearing for his client and thus could not be a witness.   Furthermore, he could not obtain another attorney from the public defender's office inasmuch as that attorney also would be encumbered by the same burdens.   There is but one public defender's office.   It is for this reason that such an office is incapable of representing codefendants if there appears a possibility of a conflict.   Here Mr. McGarry, had he testified, might have been required to choose between his own best interests and those of his client.

LILLIE, Associate Justice.

SPENCER, P.J., concurs.