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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Leo ARTIS, Defendant and Appellant.

Cr. 21660.

Decided: January 11, 1982

Quin Denvir, State Public Defender, Mark Fogelman, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Thomas A. Brady and Ronald E. Niver Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant Leo J. Artis, and his wife, Leslie Colvin, were charged with the robbery and murder of George Williams on December 30, 1979.   It was alleged that one of the principals was armed with a firearm (Pen.Code, § 12022, subd. (a).)  The defendants were also charged with the robbery of Dennis Patton on December 31, 1979—Colvin with use of a firearm (Pen.Code, § 12022.5) and appellant with being armed under section 12022, subdivision (a).   In addition, appellant was charged with being a convicted felon in possession of a concealable firearm (Pen.Code, § 12021) on December 31.

The case was sent out to trial on May 12, 1980.   Appellant made a motion for severance which was granted, and his case was continued.   Colvin pleaded guilty to the Patton robbery and admitted the firearm use allegation.   Her case proceeded to jury trial as to the remaining charges.   On the third day of the presentation of evidence, a plea bargain was struck, and appellant's case was advanced for disposition.

Appellant was brought into the courtroom in which Colvin's trial was in progress.   The district attorney announced that if the person who killed Williams would admit the act, plead guilty to murder of Williams, with use of a firearm, and to robbery of Patton, and agree to a consecutive sentence for the robbery, he would stipulate that the murder was of the second degree and would move to reduce the charge against Colvin to voluntary manslaughter.   The district attorney also said that he had been informed by defense counsel that appellant was prepared to admit that he shot Williams and to plead guilty to second degree murder.

The information was amended to charge a firearm-use enhancement relative to the murder count.   Appellant was duly advised of his constitutional rights on a plea of guilty, and he waived them.   Appellant was informed by the district attorney that the consequences of his plea would be 15 years to life for murder, 2 additional years for use of a firearm, and an additional 1 year (one-third of the middle base term of 3 years) for robbery, for an aggregate sentence of 18 years to life.   Appellant's attorney stated that “Mr. Artis understands, in conjunction with this, there will be an offer of a manslaughter to his wife, who is sitting here.”   Appellant admitted under oath that he had shot Williams.   He pleaded guilty according to the plea bargain.   The court found a factual basis for the plea and that appellant had voluntarily waived his rights.   It then asked whether appellant was “under the influence of any drug or narcotic,” and appellant stated that he was not.   The court reiterated that appellant was pleading guilty in return for a “recommendation” by the People of an 18-years-to-life sentence.

Colvin immediately pleaded guilty to voluntary manslaughter, armed under Penal Code section 12022, subdivision (a), with the understanding that the district attorney would “recommend” a middle base term of 4 years for manslaughter, plus 1 year for the arming clause, and a consecutive sentence of 1 year for the Patton robbery, with an 8-month firearm-use enhancement, for a total of 6 years and 8 months.

At the time of sentencing, about six weeks later, appellant orally moved to withdraw his guilty plea.   His attorney stated two grounds:  that appellant was under the influence of drugs and that, because of his general mental condition, he was not able voluntarily to waive his rights.   Appellant was asked if he wished to state additional grounds and, under oath, he stated that “the only reason I took that deal in the first place, because I was ․ scared of what was going to happen to my wife.”   Appellant testified that he had taken codeine, two librium tablets, and “another green pill,” and had been injected with 50 milligrams of Benadryl, and that he did not know that he was giving up his rights and pleading guilty, although he acknowledged that he “took the deal to help [his] wife.”   Appellant further stated that he was under the influence of drugs at the time of his plea but did not inform the court, when asked, because “I didn't really trip on it.”   Appellant protested that he did not shoot anyone, that he had witnesses to prove it, and that the guilty party was “upstairs” (in the city jail?).   No jail medical records or other evidence was presented in support of appellant's motion to withdraw his guilty plea.

The trial court reviewed the transcript of the proceedings on appellant's change of plea and referred to its own recollection.   The court noted that it had asked appellant whether he was under the influence of a drug or narcotic and appellant had responded negatively and that appellant had not appeared to suffer from any disability.   The trial court found that he was not under the influence of any drug or narcotic that would impair his mental faculties to the extent that he could not properly enter a plea of guilty.   The court added:  “Whether or not the jail people have given him some type of medication for some illness or whatever, or what the effects of those were, there's insufficient evidence before the court, but the fact that somebody may have taken an aspirin or some other type of medication, doesn't prohibit them from entering a plea.”   The court further stated that there was “substantial evidence” that Colvin would have been found guilty and “I think Mr. Artis, recognizing that possibility agreed to the disposition which is clearly set forth in the record for the benefit of his spouse, Leslie Colvin ․”  Appellant's motion to withdraw his guilty plea was denied.

The court thereafter proceeded to sentence appellant.   The district attorney reminded the court that “Eighteen years to life ․ was the disposition negotiated with the court and with defense counsel.”   The court thereupon proceeded to impose a 15-to-life sentence for the murder, plus 2 years for the firearm-use enhancement, and 3 years for the Patton robbery, of which it ordered 2 years to be stayed and the remaining year to be served consecutively.   The district attorney immediately reminded the court that, because the term for murder was indeterminate and the term for robbery determinate, the proper procedure under California Rules of Court, rule 451(a) 1 was to impose sentence for robbery and then for murder and to order that the murder term run consecutive to the robbery term.

Thereupon, the trial court sentenced appellant to 15 years to life for murder in the second degree, 2 years for the use of a firearm, 3 years for robbery, and 1 year for being armed with a gun.   The result was a 21-years-to-life sentence, but the court ordered “the total aggregate term in State Prison would be a sentence of 18 years to life.”   Appellant's attorney said, “That's what the plea bargain was, your Honor,” referring to the 18-years-to-life.

After being sentenced, appellant again protested his innocence and said that he pleaded guilty because the jury was “about to convict my wife and unborn son of something they didn't do” (Colvin, apparently, was pregnant).

Appellant filed a pro. per. “request” for a certificate of probable cause.   The “request” did not state any grounds but said that it was made “after entry of the plea of guilty” and that a motion for withdrawal of plea was made on the grounds of “influence of drugs” and “possible mental incapacity.”   The “request” was signed under penalty of perjury by an attorney other than the one who represented appellant at the time of the plea.   The court granted the petition for certificate of probable cause.

1. Was the Guilty Plea Invalid as a Matter of Law?

It was a condition of the plea bargain according to which appellant pleaded guilty to second degree murder that, if he did so, the first degree murder charge against his wife would be reduced to voluntary manslaughter.   The trial court observed that “appellant agreed to the disposition ․ for the benefit of his spouse ․”

Appellant contends that such a plea bargain violates federal and state constitutional due process standards and contravenes public policy because it tends to undermine the accuracy of the guilt determination by injecting improper third-party considerations into the defendant's assessment of risks.

It is true that the United States Supreme Court has expressed concern about plea-bargaining processes which present a danger of causing innocent persons to plead guilty.   Thus, in Brady v. United States (1970) 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747, the court said:  “We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”

The notion that the interests of a third party should not be allowed to enter into a defendant's decision to plead guilty, for fear that an innocent person might decide to do so in order to save another person the risk of conviction and imprisonment, obviously has some appeal.   It finds support in decisions holding inadmissible confessions induced by threats of arrest or prosecution or promises of release or nonprosecution of close relatives.  (People v. Trout (1960) 54 Cal.2d 576, 6 Cal.Rptr. 759, 354 P.2d 231;  People v. Clark (1968) 263 Cal.App.2d 87, 69 Cal.Rptr. 218;  People v. Manriquez (1965) 231 Cal.App.2d 725, 42 Cal.Rptr. 157;  People v. Rand (1962) 202 Cal.App.2d 668, 21 Cal.Rptr. 89.)   However, it appears to be the law that the fact that a confession was motivated by a desire on the part of the defendant to secure favorable treatment for his relative does not render the confession involuntary as a matter of law unless the prosecutorial authorities have made a bad faith threat or promise for the purpose of inducing the confession.

In the ALI Model Code of Pre-Arraignment Procedure (1975) Commentary to section 350.3, pages 615–616, it is stated:

“There is little case law on the point.   The leading case is Kent v. U. S., 272 F.2d 795 (1st Cir. 1959) where the defendant was told that his fiancee would be prosecuted unless he pleaded guilty.

“The Court held that in order to set aside his plea the defendant must show that he was subjected to threats or promises of illegitimate action:

‘We are not prepared to say that it can be coercion to inform a defendant that someone close to him who is guilty of a crime will be brought to book if he does not plead.   If a defendant elects to sacrifice himself for such motives, that is his choice and he cannot reverse it after he is dissatisfied with his sentence, or other subsequent developments.’  Id. at 798.

“In Thomas v. Warden, Maryland Penitentiary, 236 F.Supp. 499 (D.Md.1964), the defense counsel urged defendant to plead guilty suggesting that charges would be dropped against defendant's wife and an acquaintance.   The court cited Kent and stressed that the plea was made voluntarily.   And in Cortez v. U. S., 337 F.2d 699 (9th Cir. 1964), a guilty plea induced by a promise that defendant's pregnant wife would be charged with a lesser offense was held valid because at the time of the plea defendant was fully and accurately advised and the plea was voluntary.

“The court in Crow v. U. S., 397 F.2d 284 (10th Cir. 1968) sent the case back to the trial court for a hearing to determine whether a plea was knowingly and voluntarily made when it was induced by a promise that another person would not be prosecuted.   However, the court stopped short of holding that a knowing and voluntary plea could not be made under these circumstances.”

The ultimate question therefore is whether an innocent person has unlawfully been induced to plead guilty.   Here there was a factual basis for appellant's plea in that he was held to answer to the charge, a Penal Code section 995 motion was not granted, and the appellant himself admitted under oath that he had shot the victim.

We agree with respondent's argument that, if guilty pleas induced by promises of leniency for third persons were infirm, then it would make package plea bargains impossible, for several defendants could then plead guilty for the benefit of one, arguably the least culpable, and then move successfully to withdraw their pleas.

 Actually, the question here is one of voluntariness of the plea.   In such situations there can be no hard and fast rules but, instead, the court must look to the “totality of the circumstances.”  (Gallegos v. Colorado (1962) 370 U.S. 49, 55, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325;  People v. Lara (1967) 67 Cal.2d 365, 383, 62 Cal.Rptr. 586, 432 P.2d 202.)   The trial court should determine in the individual case whether there are good reasons for the defendant's pleading guilty independent of the favorable treatment which another person is to receive.   If the court is satisfied that defendant is pleading guilty voluntarily, that he has not been subjected to unreasonable pressures in order to induce him to plead guilty, and that the interests of justice would be served by a plea of guilty because there is good reason to believe the defendant is guilty, then he should be allowed to plead guilty even if he is making a sacrifice for another person.  (Kent v. United States, supra, 272 F.2d at p. 798.)

 A motion to withdraw a plea of guilty is addressed to the sound discretion of the trial court.  (Pen.Code, § 1018)  The court's denial of the motion will not be disturbed on appeal unless an abuse of that discretion is clearly demonstrated.  (People v. Hernandez (1979) 96 Cal.App.3d 856, 864, 158 Cal.Rptr. 434.)

 In the case at bench, the trial court found that appellant freely and voluntarily waived his constitutional rights when he pleaded guilty and that he knew and understood the consequences of his plea.   The court further found that appellant was not under the influence of drugs at the time of the plea and that he was aware of the consequences of his decision.   The court added:  “It was a negotiated disposition ․ in which the codefendant received a substantial benefit and recommendation from the People in return for a plea from both defendants․”

We find no abuse in the court's denying appellant's motion to withdraw his plea of guilty.

In addition, we hold that despite appellant's protests of innocence, his plea should stand in the absence of evidence indicating that such a result would be a miscarriage of justice.  (North Carolina v. Alford (1970) 400 U.S. 25, 37–38, 91 S.Ct. 160, 167–168, 27 L.Ed.2d 162.)

2. Was the Sentence Imposed Contrary to the Plea Bargain ?

 As the facts related above show, appellant plea-bargained for an 18-years-to-life sentence but received a 21-years-to-life term.   Appellant therefore contends that he did not receive the benefit of his plea bargain and should have been allowed to withdraw his plea, citing Penal Code section 1192.5;  People v. Collins (1978) 21 Cal.3d 208, 214–215, 145 Cal.Rptr. 686, 577 P.2d 1026;  and People v. Garcia (1981) 121 Cal.App.3d 239, 247, mod. 122 Cal.App.3d 690b, 175 Cal.Rptr. 296.)   Although this is a correct statement of the law, this case does not present a situation where the prosecutor has reneged or the sentencing court disapproved the plea bargain.

The real problem is, does this court have the option of effectuating the intent of the trial court, or must it remand with directions to give appellant an opportunity to withdraw his plea?   Alternatively, does this court have the power to order that terms for enhancements, properly imposed but contrary to a plea bargain, be stricken?

Respondent argues that the trial court thought it was imposing an 18-years-to-life term in accordance with the plea bargain.   Thus the appropriate remedy in order to effectuate the intent of the trial court and the parties would be to stay the sentence on the arming and firearm use enhancement clauses.

The case of People v. Flores (1971) 6 Cal.3d 305, 98 Cal.Rptr. 822, 491 P.2d 406, supports respondent's position.   There, a defendant plea-bargained for a 5-to-life maximum term for robbery, but the court sentenced him to a consecutive 5-to-life term for use of a firearm.   The Supreme Court held that where “judgment [has been] entered contrary to the terms of the bargain, ․ [the defendant] may move to have his plea set aside, or the judgment may be modified to conform with the terms of his bargain,” (id., at p. 309, 98 Cal.Rptr. 822, 491 P.2d 406) and ordered the judgment modified by striking the finding that the defendant used a firearm.  (Id., at pp. 309, 310, 98 Cal.Rptr. 822, 491 P.2d 406.)   We therefore hold that the court does have the power to strike or to stay the execution of the enhancements in order to conform the judgment to the plea bargain as agreed by counsel and intended by the court.

So far as the issues raised on appeal are concerned, it is ordered that the judgment be modified by staying the enhancement clauses, leaving intact the consecutive sentences for murder in the second degree and robbery, so that appellant is sentenced to a term of 18 years to life, and as so modified, the judgment is affirmed.



1.   Rule 451(a) of California Rules of Court provides:(a) When a defendant is sentenced under section 1170 and the sentence is to run consecutively to a sentence imposed under section 1168 in the same or another proceeding, the judgment shall specify the determinate term imposed under section 1170 computed without reference to the indeterminate sentence, shall order that the determinate term shall be served consecutive to the sentence under section 1168, and shall identify the proceedings in which the indeterminate sentence was imposed.   The term under section 1168, and the date of its completion or parole date, and the sequence in which the sentences are deemed served, will be determined by correctional authorities as provided by law.

ANELLO, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

WHITE, P. J., and BARRY-DEAL, J., concur.