PEOPLE v. DEFENDANT (1992)

Defendant X appeals from the judgment entered following the court's refusal to allow him to withdraw his plea of guilty to a charge of possessing contraband narcotics.

Due to the inherently life threatening risks created by the methodology adopted in this particular proceeding, we are unable to recite the underlying facts in any detail.   Rather than the prosecution and the defense simply reaching an agreement regarding an appropriate disposition of the instant charges based upon the nature of the offenses committed and the character of their perpetrator, a police officer purported to enter into what the parties characterize as a “contract” with the defendant.   Apparently this officer acted in reliance upon some unknown authority granted him by the Los Angeles County District Attorney's Office.   A Deputy Public Defender joined defendant in signing the document.

By its initial innocuous terms it merely provided that if defendant would perform various acts, certain of which we shall hereafter describe, “the Los Angeles Police will prepare written recommendations concerning [defendant's] sentence.   These recommendations will outline [defendant's] efforts on behalf of law enforcement and request the court to sentence and place [defendant] on 5 years formal probation with search and seizure conditions.  [¶]  It is fully understood that the sentencing court is not bound by the above recommendations and may sentence [defendant] to any sentence the court in its discretion deems proper.”

To this point, the arrangement was little more than a formal and somewhat specific instance of the traditional practice of police officers promising to “put in a good word” with the prosecution and/or the court on behalf of arrestees who manifest a willingness to aid in the apprehension of other, usually more seriously involved, offenders.   In our currently drug and crime plagued society, few endeavors undertaken by our peace officers could be more worthy of encouragement and commendation.   However, the arrangement began to take on a more ominous character when, thereafter, the “contract” purported to bring both the prosecution and the court itself into its provisions.   That is, it provided, inter alia:

“It is understood that any guilty plea entered by [defendant] is final and cannot be withdrawn without the concurrence of the District Attorney's Office.   It is further understood that should [defendant] fail to complete the agreed-upon investigations and seizures of cocaine the District Attorney's Office will request to the sentencing court to sentence [defendant] in conformity with [defendant's] plea to 8 state prison [sic ]․  [¶] It is understood that [defendant] will plead guilty to Count 2 ․ on the date of this agreement for a period of 8 years in state prison.   Any remaining counts will be dismissed at sentencing.”  (Emphasis added.)

The most significant, as well as the most startling, aspect of this “contract” was its requirement that appellant, between August 10 and November 27, 1989, succeed in aiding “law enforcement in at least two additional separate investigations which resulted in the arrest of persons and the recovery of contraband.  [¶] At least one (1) kilogram of cocaine or one (1) gallon of PCP must be seized in each of these two new investigations.   An aggregate additional seizure of two (2) kilograms of cocaine or two (2) gallons of PCP must be seized.”

Although, as noted, no representative of the District Attorney's Office had signed this document, a deputy purported to codify it into a plea bargain with even the court now bound by it terms.   That is, rather than the police merely making recommendations to the court which the court was under no obligation to follow, the prosecutor advised defendant that should he succeed in his efforts he “will be placed on probation for five years.   And that is straight probation, formal probation, with no additional time.  [¶]  Now, should [defendant] fail to accomplish the assistance to law enforcement and have the arrests made and the recovery of the narcotics that I have already described, [defendant] will be placed in the state prison for eight years.   So if [defendant] fails to complete the agreed-upon contract, it will be eight years in the state prison.”  (Emphasis added.)

The court itself then joined in.  “THE COURT:  Do you understand that?  [¶] THE DEFENDANT:  Yes.  [¶] THE COURT:  You will be pleading to these charges;  and if you don't assist the law enforcement or you fail in your probation, you will be doing eight years in state prison.  [¶] THE DEFENDANT:  Yes.”

After the currently mandated recital of rights was completed and defendant's plea was taken, the prosecutor again reminded him of what would be the consequence of his failure to fulfill his “contract.”   In order that he might have an opportunity to perform, his probation and sentencing hearing was set some distance in the future and he was released on his own recognizance without the necessity of contacting the probation department.   However, he was warned that if he “didn't show up for ․ sentencing, there is not going to be any question, ‘I was trying to work,’ or anything like that.   That would be a violation of the contract and it would be an immediate state prison sentence.”  (Emphasis added.)

It would be difficult, indeed, to envision any action more inconsistent with, and destructive of, the judicial role than such an attempt to give a negotiated plea the form and function of a civil contract to which the court itself becomes bound.   For example, defendant, of course, was not given the usual admonition that if the court were later to decide not to honor the terms of this “contract,” defendant would be allowed to withdraw his plea.   This omission is readily understandable, of course, for no matter what grossly unfavorable information might later be revealed in a subsequent probation report, it would have been quite unconscionable for the court not to have honored its provisions had defendant actually completed his perilous mission.

As it developed, however, defendant was unsuccessful in purchasing narcotics in the requisite quantities.   When he thereafter appeared for sentencing he sought to withdraw his plea upon the ground that he had tried in good faith to perform but his efforts had been frustrated by the other “contracting party.”   The prosecutor objected, apparently on the thought that it had always been at least a third party beneficiary of the underlying “contract,” and had become a direct party to it when it had been transmuted into a plea agreement.   He pointed out that the “contract” provided that appellant's plea could not be withdrawn without the concurrence of his office.   Alternatively, he suggested that the court might determine which contracting party was entitled to specific performance, i.e., it “could find that [defendant] in good faith completed the contract, could find in good faith for some reason out of [defendant's] control [he] was unable to complete the contract and should obtain the benefit of the contract, or the court could find that [defendant] did not complete the contract and, therefore, execute sentence.”

The court responded:  “The whole theory of the contract is to provide for the state and county officials a person who will buy amounts more than the person that is involved.   They go up, so to speak.   If it is two kilos, they go more than two kilos.   To trade-off kilo for kilo is not what the contract is designed for.   It is designed to go up higher and pick up major violators.   That is what this whole thing was devised for.  [¶] I am reading the plea now.   If counsel doesn't articulate that, I can't really fill in.   I don't know how you can get—[¶] What do you call it to a contract?  ․ The writing, when you add onto a contract.   I don't know how you do that.  [¶] Specifically, even more so than a regular contract in civil law, this contract specifically talks about this person's rights.   They go through it;  they are articulated;  they are explained to [defendant].  [Defendant] understands and [defendant] waives and gives up those rights, and so I don't know what evidence I would need.”

After an unreported conference in chambers, however, the court relented and defendant was permitted to testify.   He averred he had tried to make the required purchases but the police would not provide him with the necessary “front money,” as he had understood they would do, and they had so crudely attended him in his dangerous assignments that his role as an informant and police agent had been disclosed.   This not only rendered successful performance impossible, it caused his life and that of his family to be placed in jeopardy, i.e., he testified, “I got guns pulled on me and people standing out by my house and threatening to kill me and my children․”

When questioned by the court, the investigating officer opined that defendant had not “completed the contract,” a fact which, of course, was never in dispute.   However, when asked if there were any “specific untruths” in defendant's explanation of why he had been unable to do so, the officer stated, “There were a few, but I don't recall them exactly now.   They weren't exactly right on, but they weren't extremely startling.”

Obviously any attempt to select a suitable fate for this defendant on the basis of such a record would be futile.   More to the point, however, as expressed by our Supreme Court, “the Legislature has found that the punitive purpose of imprisonment is best served by assuring that prison terms are proportionate to the seriousness of the offense and uniform among persons committing the same offense under similar circumstances.  ( [Pen.Code] § 1170, subd. (a), par. (1).)  ․”  (People v. McCart (1982) 32 Cal.3d 338, 340, 185 Cal.Rptr. 284, 649 P.2d 926.)   Consequently, to question whether a defendant has succeeded in meeting the specific quota assigned to him in his role of police agent, or to determine to whom his failure so to do is chargeable, are largely irrelevant considerations.

Of course, even if, as was urged during oral argument before us, it were to be deemed legally permissible for defendant as a form of pre-probation probation, to contract “to work off” his offense in the fashion adopted here, it would have been necessary to define the manner in which that labor was to be performed with far more specificity than was done in this instance.   For example, who was to supply the money required to make the designated purchases, who was responsible for ensuring that surveillance went undetected, what was to be done in the event of inadvertent exposure, etc., etc.

It is true, of course, that certain courts have referred to the “principles of contract law” when considering merely the meaning of terms used in a plea agreement, but not when the possibility of specific performance is in issue.  (See People v. Haney, (1989) 207 Cal.App.3d 1034, 1037–1038, 255 Cal.Rptr. 276;  Leo v. Superior Court (1986) 179 Cal.App.3d 274, 283, 225 Cal.Rptr. 15, and cases cited therein.)   However, we believe none of their authors contemplated plenary trials being conducted, with or without a jury, to pass upon the questions that would be potentially determinative here, e.g., the effect of partial performance, the consequences of impossibility, impracticability and frustration of purpose, the prevention of performance by the shortcomings of the other contracting party, anticipatory breach, etc., etc.   In truth, the very concept of incorporating all of the myriad nuances of our arcane and complex civil law of contracts into the heart of the criminal field is totally inappropriate and the judgment based on the present attempted transplant cannot be permitted to stand.

The judgment is reversed and the matter is remanded to the trial court with instructions to allow defendant to withdraw his plea if he still wishes to do so.   Unless otherwise directed by the California Supreme Court, our file and the Superior Court file will remain under seal, to be viewed only by a reviewing court.

GATES, Acting Presiding Justice.

FUKUTO and NOTT, JJ., concur.