Opinion
F050705
5-2-2007
THE PEOPLE, Plaintiff and Respondent, v. JAVIER GONZALES JUAREZ, JR., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
Before Harris, Acting P.J., Dawson, J. and Kane, J.
In March of 2005, appellant Javier Gonzales Juarez, Jr., pled not guilty to charges of second degree robbery (Pen. Code, § 211) with personal use of a firearm (§ 12022.53, subd. (b)) and felony criminal threats (§ 422) while released from custody on bail (§ 12022.1). In August of 2005, the trial court granted the prosecutions motion to strike the on bail allegation.
All further statutory references are to the Penal Code unless otherwise stated.
On November 17, 2005, the trial court granted the prosecutions motion to strike the personal use allegation and to reduce the criminal threat allegation to a misdemeanor. On that same date, appellant initialed, signed, and filed change of plea forms as to both counts, pleading no contest under People v. West (1970) 3 Cal.3d 595, with the condition that he would receive a one-year jail sentence on the robbery charge and a consecutive six-month sentence on the misdemeanor. Appellant also agreed to waive all time credits at sentencing. The trial court accepted appellants change of pleas.
On December 19, 2005, appellant, through defense counsel, expressed a desire to withdraw his pleas, claiming he did not fully understand the plea agreement. The trial court ordered a copy of the plea transcript and continued the hearing in order to determine if conflict counsel needed to be appointed. A request to substitute counsel for appellant was granted on April 3, 2006.
On May 3, 2006, appellants counsel informed the trial court that appellant did not wish to waive his time credits and moved to withdraw his pleas. Following a hearing, the trial court denied the motion. The trial court thereafter granted appellant three years probation and ordered that he serve one year in jail on the robbery count. A six-month consecutive term was imposed for the misdemeanor. Appellant received 204 days credit (136 days actual time and 68 days good time/work time), which represented time credit from the original date set for sentencing (Dec. 19, 2005) to the actual sentencing date (May 3, 2006).
Appellant obtained a certificate of probable cause. On appeal he contends the trial court erred in denying his motion to withdraw his pleas. Respondent concedes the error. We agree with appellant and respondent, and the judgment of conviction is reversed.
Because the issue on appeal is limited to appellants motion to withdraw his pleas, we do not review the underlying facts of his offenses.
DISCUSSION
APPELLANTS MOTION TO WITHDRAW HIS PLEAS
Appellant initialed and signed two change of plea forms on the same date. In one he stated that he pleaded no contest to one count of robbery with the condition that he receive a one-year jail sentence and that he agreed "to waive all time credits at time of sentence." He also initialed and signed a change of plea form stating that he pleaded no contest to a misdemeanor criminal threat with the condition that he receive an additional six-month jail term.
At the hearing on the plea agreement, the following colloquy occurred:
"[DEFENSE COUNSEL]: ... We have a resolution, Your Honor. My client is going to enter a plea to Count One, 211. Hes also going to enter a plea to Count Two as a misdemeanor for a P.C. 422. There is an agreement that at the time of sentencing my client is going to waive all time credits. He will receive a one-year commitment on the Count One and a consecutive six-month term as to Count Two.... [¶] ... [¶]
"[PROSECUTOR]: [J]ust to be clear, that the waiver of time credits and—we are essentially, if the Court will allow it, promising no initial state prison on the plea to Count One, and there is an agreement between the parties, a stipulation, that [appellant] will be sentenced to a full year in the county jail under that grant of probation for his plea to Count One and a consecutive six-month period for his plea to Count Two reduced to a misdemeanor.... [¶] ... [¶]
"THE COURT: ... And how will that work out? He comes to sentencing, I give him 365 days, and then as to Count Two, consecutive 180 days, for a total of, ... 400, 500-something days? [¶] ... [¶] ... And then he gets his time credits.
"[DEFENSE COUNSEL]: At the time of sentencing hell receive his credits as of that date.
"[PROSECUTOR]: Hell begin earning credits at the date of sentencing, yes.
"THE COURT: Is that your understanding of the plea agreement, [appellant]?
"[APPELLANT]: Yes, sir.
"THE COURT: So at the time of sentencing, youll have zero time credits. [¶] Do you understand that?
"[APPELLANT]: Yeah.
"THE COURT: And well take the waiver of those credits once we come to the day of sentencing. If you do not waive those time credits, then the plea is busted. [¶] Do you understand that?
"[APPELLANT]: Yes, sir."
The trial court subsequently advised appellant and took his change of pleas. The court specifically asked appellant, "Other than whats on the plea form or what has been stated here in open court on the record, were there any promises or threats made to you?" Appellant answered, "No, Your Honor."
On the date originally set for sentencing, defense counsel advised the trial court that appellant wished to withdraw his plea as he did not "understand the details of the plea agreement." Sentencing was continued to allow the court to review the transcript of the plea.
At the subsequent date set for sentencing five months later, substitute defense counsel informed the trial court that appellant did not wish to waive his time credits. The prosecutor who took over the case stated:
"This ... was kind of a peculiar sentence the way it was structured, that at the time of sentencing [appellant] was going to waive time credits on that date, which was way back on 12-19-05, and then do his time according to the plea agreement, and thats what the Court was intending and [defense counsel] and I think [appellant] at the time understood that. But then when we got the transcript, there was one line in there that was in essence saying you dont waive them, you, Your Honor, would bust the plea, but then we went back and discussed it in chambers and we figured out that would not be the benefit of the bargain for any party if he decides not to do what the plea agreement said ...."
There is no indication in the record when this discussion in chambers took place or who was present.
The court agreed and stated that it would be "tantamount to withdrawing a plea," and that "we need a motion to withdraw the plea if [appellant] doesnt want to waive his time credits and then if I ... deny it, then I will just note that per the plea agreement he was to waive them at that time."
Defense counsel argued that appellants waiver of time credits was vague because there was "an issue whether you are waiving them for local purposes or all purposes," and counsel wondered if, for example, appellant violated probation and faced four years in prison, whether he would have any credits or not. The trial court agreed that the issue was vague and stated it would "probably give him the benefit of that local ...."
Defense counsel, the prosecutor and the trial court then discussed the issue of appellant filing a motion to withdraw his plea, and all parties agreed that, since the only issue was that of the time credits, a formal written motion was not necessary. Argument was then heard from defense counsel who reiterated that it was appellants understanding that if he did not waive his time credits at the time of sentence, "this plea would be busted."
The trial court explained that its reasoning, in requiring a waiver of credits at the time of sentencing instead of at the time the change of plea was taken, was "for the benefit of counsel, for [appellant], ... so we knew when we had a probation officer here[.]" In this way, the trial court would not have to guess as to what the proper amount of time credits were. As explained by the trial court, a defendant, without the benefit of a probation officers calculations, who agreed to waive 400 credits, but in reality had only 200, would, following a violation of probation, lose an additional 200 days collected because he had waived 400 days. The court then denied appellants request to withdraw his guilty plea, claiming that the wording of the agreement was that the trial court could "bust the plea," if it wished, not that appellant could withdraw his plea.
Defense counsel again argued that appellants understanding was that, if he did not waive the credits, "then the pleas busted." The court disagreed and reaffirmed its ruling, stating:
"[U]nderstanding [appellant] is not willing to waive his time credits, the bargain and ... the change of plea form reflect that he understood the plea on that date, it was the Courts discretion whether or not to accept the plea on that date, having read and considered the probation report, not whether or not he was going to waive his time credits. Granted, the reasons previously stated were that to get an accurate count of his time credits at the time of sentencing, there was no probation officer here when the plea was taken and the ... transcript makes clear there was a clear understanding as to what the plea would be, that he would waive those time credits, therefore, as of the date of sentencing, it was more of a matter of taking the waiver only. And frankly, that was to the benefit of [appellant] as to the reason why.... And the Court would continue to take pleas in this manner, expecting both parties to comport and comply with the bargain that they entered into."
Appellant contends the trial court erred in denying his motion to withdraw his pleas, because it reneged on its promise. As argued by appellant, while the trial court might have "intended to tell him that the plea agreement was voidable at the time of sentence by the court alone," the words used by the trial court instead informed appellant that, "if he did not take the affirmative step of waiving those credits, the plea agreement would be nullified." According to appellant, when he decided not to waive the credits, the agreement became void, and the trial court was required to allow him to withdraw his pleas. Respondent agrees, and we accept the concession.
Section 1018 permits a plea of guilty to be withdrawn prior to judgment for good cause shown. It is the defendants burden to establish good cause by clear and convincing evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) However, the defendants change of mind, alone, does not constitute good cause for withdrawal of a guilty plea. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) A guilty plea should not be set aside lightly, and finality of proceedings should be encouraged. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) The withdrawal of a guilty plea is left to the sound discretion of the trial court. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
Here, as evidenced by the discussion between the trial court, appellant, defense counsel, and the prosecutor, appellant, as part of the plea agreement, was to waive time credits at the time of sentencing. The change of plea form specifically stated, "Client agrees to waive all time credits at time of sentence."
But a problem arises with the statement by the trial court to appellant that, "If you do not waive those time credits, then the plea is busted." Although the trial court may have meant to tell appellant, "If you do not waive those time credits, the court has the discretion to bust the plea," it did not do so. And, as pointed out by both appellant and respondent, neither did the trial court inform appellant, pursuant to section 1192.5, that the trial court could withdraw its approval of the plea.
Section 1192.5 provides: "If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."
Appellant contends that "[u]nder the circumstances, [he] was entitled to believe that he was not bound by this agreement if he did not choose to waive his time credits on the day of sentencing ...." Respondent agrees, stating that appellants interpretation of the courts remarks "cannot be said to be unreasonable."
Appellant contends his circumstance is similar to that of the defendant in People v. Glennon (1990) 225 Cal.App.3d 101, disapproved on other grounds in People v. Walker (1991) 54 Cal.3d 1013, 1022. In Glennon, the defendant entered a plea of no contest to all charges in a prosecution for misappropriation of state funds. Prior to entering his plea, the defendant was advised of and waived his constitutional rights. He was advised on the range of punishment for the offense, the applicable parole period, and the consequences of a revocation of parole before he entered the plea. Although the plea was not the result of a negotiated plea, the sentencing judge indicated that a two-year prison term appeared to be appropriate. No mention of a restitution fine was made. (Glennon, supra, at p. 103.) The defendant was also advised that the plea was not binding on the court and, if the sentencing judge withdrew his approval of the indicated disposition, the defendant would be allowed to withdraw his plea. (Id. at pp. 103-104.) The defendant was sentenced to two years in prison and a restitution fine of $10,000 was imposed. (Id. at p. 104.)
On appeal, the defendant asked that the restitution fine be stricken, since the fine was a direct consequence of his plea and he was not informed of the possibility. The court in Glennon determined that the trial courts failure to advise the defendant of the fine did not present a constitutional issue and found the error nonprejudicial. But the court reversed nonetheless because it was "concerned that when appellant entered his plea he was advised that he could withdraw it if the indicated disposition was not the sentence imposed." (People v. Glennon, supra, 225 Cal.App.3d at pp. 105-106.) And, "[a]lthough this advice was unnecessary since the plea was not the result of a negotiated agreement," the court remanded the case to allow the defendant the opportunity to withdraw his plea. (Id. at p. 106.)
We agree with the parties that, as in Glennon, due process and fundamental fairness require that we remand appellants case to allow him the opportunity to withdraw his plea.
"[T]he adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262.)
Thus, due process applies not only to the procedure of accepting a plea (see Boykin v. Alabama (1969) 395 U.S. 238), but the requirements of due process also attach to implementation of the bargain itself. (People v. Mancheno (1982) 32 Cal.3d 855, 860.) And it follows that violation of a bargain by an officer of the state raises a constitutional right to some remedy. (Ibid., and cases cited therein.)
The usual remedies for violation of a plea bargain are to allow the defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea. (People v. Mancheno, supra, 32 Cal.3d at pp. 860-861.) "In cases involving breach of the terms of a plea bargain, constitutional issues of due process are raised, and the bargain may be enforced or the plea may be withdrawn depending on the facts of the case." (People v. Glennon, supra, 225 Cal.App.3d at p. 104.) Because of the circumstances present here, the only possible remedy is to remand the matter to the trial court with instructions to permit appellant to withdraw his plea.
DISPOSITION
The judgment of conviction is reversed. The matter is remanded to the trial court with directions to allow appellant to withdraw his no contest pleas, and to reinstate the original charges as permitted by law.