Opinion
A119118.
6-25-2009
THE PEOPLE, Plaintiff and Respondent, v. HAROLD GENE DRUMMOND, JR. Defendant and Appellant.
Not to be published in Official Reports
I. INTRODUCTION
After being charged in a complaint with driving under the influence of alcohol and neglecting to render assistance at the scene of a vehicle accident he had caused, appellant entered a plea of guilty to a lesser offense (a misdemeanor) of one of those charges. However, after the court received a probation report regarding the underlying incident, it determined that the original plea bargain should be rejected. At a subsequent preliminary hearing, appellant again pled guilty to one of the counts, but as a felony, and was thereafter convicted and sentenced. He appeals, claiming that the original plea agreement should be specifically enforced. We reject this argument and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In the afternoon of January 26, 2007, appellant was driving his vehicle, a 1990 Suzuki Sidekick, along a single-lane mountain road in Humboldt County. Apparently due to his level of intoxication, he drove the vehicle off that road; it fell down an embankment and onto a river bank. Appellant and one of his passengers, Leland Early, were able to get out of the vehicle, and did, walking to appellants nearby residence. But they left the other passenger, Patrick Gruell, badly injured in or near the vehicle. He was later discovered by two fisherman, one of whom stayed to help Gruell, while the other went to summon help. Emergency help arrived at about 5 p.m., as Gruell lay face-down at the scene. He told the emergency personnel (the CHP) that he was a passenger in a vehicle which had rolled over down the embankment; he exited the vehicle and then collapsed because, he told them, his legs went numb. He admitted that he had consumed alcoholic beverages within one hour prior to the accident and identified appellant as the driver of the vehicle; he declined to state whether appellant had also consumed alcoholic beverages.
All further dates noted are in 2007. This summary of the underlying facts is taken from the probation report submitted to the trial court.
Gruell was taken by ambulance to the Santa Rosa Memorial Hospital, where he underwent surgery for injuries to his neck and wrist.
Shortly thereafter, investigating officers contacted passenger Early, who was lying on a couch at appellants residence. Early stated to the officers that he had consumed twelve ounces of vodka and several beers within the hour before the trio had left for the road where the accident occurred. He also stated that appellant had consumed an equal amount of alcohol during the same period.
Early stated that appellant lost control of the vehicle as it travelled along the one-lane mountain road, and it went over the embankment, its hood flipping open. He thought the vehicle rolled over once. He stated that he stayed at the scene for about five minutes, that Gruell did not seem to him all that badly injured (although he had fallen to the ground), and that he did not summon help because he assumed others in the area had done so. (Early later provided appellants defense counsel with a statement indicating that he did not know if either appellant or Gruell had consumed alcohol prior to the collision; he also stated that the hood of the vehicle had flown up prior to the vehicle going over the embankment.)
At about 5:15 p.m. the same day, appellant was contacted by investigators in a trailer behind his residence. He admitted to being the driver of the vehicle at the time in question and displayed objective signs of intoxication, such as being alternately angry and distraught. He declined to submit to a chemical test for alcohol. He was then detained and taken to the Humboldt County Correctional Facility. En route, he told the investigating officers that "it wasnt much of a crash," and that Gruell "was out running around after the crash and then just lay there and wouldnt move." He insisted he had driven the vehicle home.
Later, investigators interviewed two women who reported that appellant had consumed alcohol while in their company "prior to the trio leaving for the river road, and that he appeared angry" as he left.
On January 30, the Humboldt County District Attorney filed a complaint charging appellant with two counts. The first count charged him with driving under the influence of alcohol and thus causing bodily injury to another person (Veh. Code, § 23153, subd. (a)) and, in the second count, with neglecting to render assistance at the scene of an accident. (Veh. Code, § 20001, subd. (a.) The complaint also alleged, as to the first count, that appellant had personally inflicted great bodily injury upon a victim and that the crime charged was both a serious felony and a violent felony. (Pen. Code, §§ 12022.7, subd. (a); 1192.7, subd. (c)(8) & 667.5, subd. (c)(8).)
All subsequent statutory references are to the Penal Code.
The same day, appellant—via his counsel—pled not guilty to these charges.
In brief hearings on February 7 and 14, the trial court noted that the prosecutor had offered to settle the case if appellant were to plead guilty to the first count and admit the great bodily injury enhancement. Neither happened at these hearings and the matter was continued.
On February 22, the trial court (the Honorable Timothy Cissna), announced its understanding that the parties had negotiated a plea bargain pursuant to which appellant would plead guilty to a lesser offense, i.e., a violation of Vehicle Code section 23152, subdivision (a), and agree to pay restitution to all victims. Both appellant and his attorney agreed that this accurately summarized the plea bargain. Judge Cissna explained that appellant faced a maximum imprisonment of six months in county jail and a fine of $1,000, plus penalty assessments. Appellant then waived his Boykin/Tahl rights and pled guilty. Judge Cissna accepted the plea and granted the prosecutors motion to dismiss count 2 and the remaining allegations of the complaint.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Judge Cissna then invited comments regarding sentencing. The prosecutor asked for the full six-months jail term, noting that Gruell had suffered severe injuries. Appellants counsel argued that there was little evidence that appellant had, in fact, been driving under the influence of alcohol, and that the accident and thus Gruells injuries may have been caused by a mechanical failure of the vehicle, i.e., the hood "flew up."
Judge Cissna then stated: "Theres a lot of information it sounds like here that I dont have." He then added that he did not then have time to conduct a full sentencing hearing. The parties and the court thus agreed to defer such a hearing until after the Probation Department had prepared a pre-sentence report for the court.
A probation officer first interviewed appellant on March 8 and then a second time on July 9. That officer submitted a presentence report to the court on July 23. In addition to the facts summarized above, the report also included the substance of appellants statements about the accident. In brief, it (and a written statement prepared by appellant and attached to the probation report) effectively denied substantial responsibility for the injuries to Gruell. More specifically, appellant stated that Gruell was the only one "who had consumed any alcohol prior to the" accident, and that he had had only "a couple of drinks" from Gruells 24-ounce beer. He also stated that the accident was caused by the vehicles hood coming open after the vehicle had hit a rut in the road. Appellant further stated that he could not recall much more about what happened afterwards, except that he stayed with Gruell after Early had left the scene, and then left at Gruells request to get help, but then met Early, who said that help had already been summoned.
Appellant went on to the effect that the others told him he had begun consuming vodka after returning home, and also stated that "I dont think I matter" concerning the injuries to Gruell. He also stated that he had been attending Alcoholics Anonymous when in custody and would, hereafter, have no problem abstaining from alcohol.
On April 5, a sentencing hearing was commenced before a different judge, the Honorable Christopher Wilson. After Judge Wilson announced that, in view of the record before him, including the probation report, he had determined to reject the plea bargain. After appellants counsel argued that Judge Wilson could not do this, as the bargain had already been accepted by Judge Cissna, Judge Wilson agreed to send the case back to that judge for reconsideration.
Although the copy of that report in our files shows that it was formally filed with the trial court on July 23 (although "received" four days earlier), clearly Judge Wilson had a copy of a probation report before him as of April 5.
On May 10, the matter was again heard by Judge Cissna, who summarized the events of the February hearings and then, referring to the probation department report, said: "And thats the first time when I learned the facts about this case and the extraordinarily serious injuries, the facts underlying the original felony hit and run." He went on to say that, if the information in the probation report had been disclosed to him earlier, he would not have accepted the plea bargain, noting that the probation report also disclosed, apparently for the first time to the court, that appellant had suffered a previous DUI conviction. Judge Cissna also noted that Gruell had expressed outrage to the probation officer that appellant had been allowed to plead guilty to only a misdemeanor, and that neither he nor the prosecutor had been aware of the severity of Gruells injuries at the time the original plea was entered.
As a result of all these considerations, Judge Cissna withdrew his previous approval of the plea bargain, stating that, in view of all the new information coming to his attention, he now viewed it as "outrageous." He nevertheless gave appellants counsel a continuance to allow them to file a writ with this court. That was not done and, at a June 6 hearing, the court denied any further continuances.
At a June 26 hearing before yet a third judge, the Honorable John Feeney, appellant pled guilty to the reinstated felony charge under count 1, with an enhancement for refusing to submit to chemical testing. The prosecutor then dismissed count 2 and the remaining charged enhancement as to count one.
On July 23, a sentencing hearing was held before, again, Judge Wilson. He sentenced appellant to serve 120 days in jail, but suspended imposition of the sentence and placed appellant on probation. He also ordered appellant to pay restitution fines and fees totaling over $3,000.
On September 7, appellant filed a timely notice of appeal; it stated that appellant was specifically appealing from the refusal of the court to honor his original misdemeanor plea agreement; appellant did not, however, either request or secure a certificate of probable cause.
III. DISCUSSION
Appellant argues that the trial court did not have authority to reject his original guilty plea to a misdemeanor and require the entry of a new and different plea, i.e., a guilty plea to a felony charge. Respondent contends that this argument is barred by appellants failure to obtain a certificate of probable cause and, in any event, that the court had the authority to withdraw its approval of a guilty plea in circumstances such as those involved here. We agree with respondents second argument, and hence do not reach the certificate of probable cause issue.
We also deem it unnecessary to deal with respondents argument that the court did not comply with the procedural provisions of section 1192.7 in approving the original plea agreement.
One of the leading cases on the issue before us was written several decades ago by former Justice Marc Poché of Division Four of this court, People v. Stringham (1988) 206 Cal.App.3d 184 (Stringham). In that case, the defendant who had been convicted after a jury trial in Del Norte County argued that his conviction should be reversed because, prior to trial (1) he had entered into a plea agreement with the prosecution under which he would plead guilty to a lesser charge, (2) that plea agreement was "conditionally" accepted by the-then trial judge who later recused himself, with the result that (3) the case was transferred to a different judge who, after learning more about the case and hearing from members of the victims family, rejected the plea agreement. Justice Poché rejected the defendants arguments that the acceptance of the original plea agreement should stand and that the second trial judge could not withdraw that acceptance. He wrote: "We start with the basic proposition that `[j]udicial approval is an essential condition precedent to any plea bargain worked out by the defense and the prosecution. [Citation.] The parties negotiated disposition is ineffective unless and until it is approved by the court. [Citation.] This principle is recognized in numerous statutes (e.g., §§ 1192.1, 1192.2, 1192.4), the most important of which is section 1192.5. [¶] The courts approval of a proposed plea bargain must necessarily be an informed decision. The court can be expected to consult the probation report that will almost always be prepared. [Citations.] In felony cases, the court may (as did [the second judge]) examine the transcript of the defendants preliminary examination. Diagnostic reports received pursuant to section 1203.03, statements in aggravation and mitigation, and victim statements (see § 1170, subd. (b)) may also be considered. Information from these and other sources is available to a court pondering whether to withdraw its approval of a negotiated disposition. It cannot be assumed that no attention will be paid to them by the court. The potential for reflection and a change of the judicial position is obvious and statutorily sanctioned. `[I]mplicit in the language of section 1192.5 is the premise that the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea. [Citation.] That statute `provides that the courts approval of a plea bargain is not binding on the court and that approval may be withdrawn at the time of sentencing if the court, after further consideration and in the exercise of its inherent discretion in sentencing, concludes that the bargain is not in the best interests of society [citation] or `upon [the court] being more fully informed about the case. [Citations.] A change of the courts mind is thus always a possibility." (Stringham at p. 194.)
This quotation omits a footnote in which Justice Poché quoted the relevant parts of section 1192.5, one of the two provisions—the other being section 1192.7—applicable to the plea agreement in the present case.
A few years later, our Supreme Court cited and quoted some of these words from Stringham in In re Alvernaz (1992) 2 Cal.4th 924, 941 (Alvernaz), and then added, in its own words: "[A] plea bargain is ineffective unless and until it is approved by the court." In support of this statement, the court again cited Stringham and, in addition, its prior decision in People v. Orin (1975) 13 Cal.3d 937, 942-943 (Orin), and various pertinent statutes, including section 1192.5. The court in Alvernaz also made clear that "California courts . . . generally disfavor the remedy of specific performance of a failed plea bargain when `specifically enforcing the bargain [will limit] the judges sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. [Citations.]" (Alvernaz, supra, 2 Cal.4th at p. 942.)
In Orin, the court held that "[j]udicial approval is an essential condition precedent to the effectiveness of the `bargain worked out by the defense and the prosecution," and then went on to expressly note that "the court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of `plea bargaining to `agree to a disposition of the case over prosecutorial objection." (Orin, supra, 13 Cal.3d at pp. 942-943.)
Since those decisions, numerous of our sister courts have held that (1) there must be court approval of a plea agreement and (2) such approval is subject to being withdrawn by the court. (See, e.g., People v. Thomas (1994) 25 Cal.App.4th 921, 925; People v. Tung (1994) 30 Cal.App.4th 1607, 1611; & People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1337.) Other cases have held, consistent with Alvernaz and contrary to appellants argument to us, that a trial court can order "specific performance" of a plea agreement only under special and unusual circumstances. (See, e.g., People v. Renfro (2004) 125 Cal.App.4th 223, 233; People v. Goodwillie (2007) 147 Cal.App.4th 695, 737; & People v. Brown (2007) 147 Cal.App.4th 1213, 1224-1225.)
Citing People v. Mikhail (1993) 13 Cal.App.4th 896 (Mikhail ), appellant contends in his opening brief that these cases do not apply and that the court was without jurisdiction to withdraw its approval (whether or not "conditional") of the original misdemeanor plea agreement. We disagree; Mikhail is readily distinguishable for the following reasons, among others: (1) it involved a plea agreement to a multi-count information, not a complaint as here, and hence was governed by sections 1192.1 and 1192.4, not sections 1192.5 and 1192.7 (see Mikhail at pp. 855-856); (2) thus, the Mikhail court specifically noted that section 1192.1 does not include a provision permitting a trial court to withdraw its approval of a plea bargain, and it therefore concluded it had no such power under that section, as it would have under section 1192.5 (Mikhail at pp. 855-856); (3) contrary to the "separation of powers" principle enunciated in Orin, the trial court in Mikhail was attempting to withdraw its approval of the plea bargain—and hence force a trial—over the objection of both the prosecution and the defendant (Mikhail at pp. 857-858); here, the prosecution approved the withdrawal of judicial approval of the plea bargain; and (4) in Mikhail, the trial court made clear that it was very familiar with the facts and background of the case (id. at p. 851); exactly the opposite was the basis for Judge Cissna wanting to get "information . . . I dont have" and then requesting and getting the highly pertinent (to both him and Judge Wilson) presentence report from the probation department.
Mikhail is, notably, not cited in appellants reply brief, presumably because respondents brief distinguishes it in much the same manner as we do hereafter.
In addition to the "information vs. complaint" difference between section 1192.1 and 1192.5, the former (and thus also section 1192.4) applies only to a plea to an information charging crimes "divided into degrees," not the case here. (See § 1192.1)
Finally, we also reject appellants argument that he was prejudiced by the combination of (1) not being advised by the court on February 22 that it had the power to withdraw its approval of the misdemeanor plea bargain and (2) thus thereafter making "inculpatory statements" to the probation officer that possibly "prejudiced [him] considerably."
First of all, the courts power to withdraw its approval of a plea is, as noted at some length above, a matter of established law, and we are aware of no case—and appellant cites us to none—that requires a court to specifically advise a pleading defendant of that fact. Second, appellants statements to the probation officer were largely exculpatory, not inculpatory. The only negative impact they might have had on Judge Cissna—or anyone else reading the probation officers report—was that appellant generally adopted a "I didnt do anything wrong" position in those statements. Finally, and most importantly, appellant cites nothing in Judge Cissnas May 10 comments which suggest that his decision to withdraw the courts approval of the first plea was in any way based on that interview. To the contrary, they appear to have been mainly based on (1) Judge Cissnas (1) lack of prior knowledge of the significant injuries to Gruell, (2) Gruells "outrage" at the original plea agreement, (3) the fact that appellant had a prior DUI conviction in another state, and (4) Judge Cissnas general feeling that, at the first plea hearing, he had "not been informed at all" regarding the critical circumstances of the underlying incident. There was, therefore, no prejudice to appellant regarding the probation departments interview of him for its pre-sentence report.
For all these reasons, we agree with the People that the trial court acted properly in withdrawing its approval of the first plea agreement.
IV. DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Richman, J.