In re Sanders

Filed 7/23/07 In re Sanders CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Petition for Writ of Habeas Corpus. Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Petition granted.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

We grant the petition and remand for resentencing.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 27, 2006, defendant negotiated a plea bargain agreement pursuant to which defendant pleaded no contest to manslaughter (Pen. Code,  192) and admitted using a firearm (Pen. Code,  12022.5, subd. (a)(1)) in exchange for a sentence of 15 years in state prison. In negotiating the plea, the prosecution presented defendant with a spreadsheet calculation showing that under the terms of the proposed agreement, defendant, with custody credits earned, would serve only an additional 1.17 years before he would be released on parole. Defendant accepted the plea bargain based upon this representation.

However, upon his incarceration, prison authorities informed defendant the calculation was incorrect, and that defendant would not be released in March 2007 as anticipated, but would be released instead in January 2009. Upon discovering the error, defendant moved in May 2006 to recall the sentence, arguing that the time left to serve was at the heart of his acceptance of the plea agreement. Defendant requested that the court recall the sentence and re-sentence defendant in a manner that would reflect the intent of all of the parties to the plea agreement. In support of his petition, defendant submitted the declarations of both the prosecuting attorney and his own counsel. The prosecuting attorney stated that defendant and his counsel relied upon the prosecutions spreadsheet in deciding whether to accept the plea, and that the prosecuting attorney believed defendant would not have accepted the offer if he had been correctly informed of the length of his imprisonment.

At the hearing held May 24, 2006, the trial court stated that it understood the parties had not reached any agreement about recalling the sentence, and that it was not planning to recall the sentence on its own motion.[1] Defense counsel pointed out that the motion to recall the sentence had been improperly characterized as a joint motion because only the court had the authority, on its own motion, to recall a sentence; instead, counsel asked that the court consider the motion to be a motion to set aside the plea and sentence.

Defense counsel further advised the court that the amount of remaining custody time was of paramount importance in negotiating the plea; the prosecution presented a spreadsheet showing that defendant would have an additional 1.17 years from January 27, 2006 until approximately March 30, 2007; and it was on the basis of the spreadsheet that defendant agreed to the plea. Defendant requested specific performance of his plea to enforce this release date.

The court pointed out that the record of the plea was silent on the issue of custody time remaining and there was no indication in the record that the plea bargain was contingent upon any specific amount of prison time. The court further pointed out that it was very difficult to predict and actually calculate and make any promises about when someone would actually get released from prison on a prison sentence, especially a lengthy one, because theres all kinds of variables that go into the formula. . . . I dont know how anyone could absolutely rely on getting out on a particular date on a lengthy sentence. Defense counsel noted that while defendant did not agree upon a particular release date, he did agree to a broad parameter and had there been a slight discrepancy between what we anticipated and what occurred, four months, six months, . . . that in my view would be within the ballpark. But were talking about a difference of 2 to 2 1/2 years of additional time.

The court reiterated that because the parties had not stipulated to set aside the sentence, it was not going to do so because in accepting defendants plea, it had not been aware of any side deals or promises about release dates. The prosecution advised the court that it had not intended to sandbag the defendant in making representations concerning his release date, and that if there was a mistake, it was [the prosecutions] mistake in calculating that date. Defendant advised the court that although he was facing a sentence of 35 years to life, the prosecution agreed to the plea agreement after learning there was another plausible suspect; defendant characterized the result as a compromise plea agreement all the way around.

Defendant filed this writ proceeding on December 15, 2006; on January 7, 2007, we issued an order to show cause requesting the Attorney General to brief the issue of whether, if this court determined defendant was entitled to relief, he should be resentenced to a term that would reflect the intent of the parties, or the judgment should be vacated to permit defendant to withdraw his plea. On January 18, 2007, the Attorney Generals return to the petition was filed; on February 5, 2007, defendant filed a motion to dismiss his petition; the motion was deemed withdrawn upon his counsels February 25, 2007 filing of a traverse and supporting memorandum.

DISCUSSION

Defendant argues that because his early release was an integral part of his plea agreement, he is entitled to specific performance of the plea and the trial court must re-sentence him in accordance with the plea bargain agreement. He contends that withdrawal of his plea is an inadequate remedy because it would inappropriately reward the prosecution and would punish him by requiring him to begin his defense again from scratch. Respondent disputes that the amount of defendants potential custody credits or his approximate release date in fact constituted a term of the plea bargain, and argues that in any event, specific performance is inappropriate because respondent had no authorization to offer a sentence less than 15 years.

Plea bargaining is an essential and desirable component of the administration of justice. (People v. Mancheno (1982) 32 Cal.3d 855, 860.) Therefore, the integrity of plea bargaining must be maintained by ensuring that the state keeps its word when it offers inducements in exchange for a plea of guilty. (Ibid.) Due process applies not only to the procedure of accepting a plea, but to the implementation of the bargain itself. Therefore, a violation of the bargain raises a constitutional right to a remedy. (Ibid.)

Because a plea agreement is a contract, it is interpreted according to ordinary contractual principles. (People v. Shelton (2006) 37 Cal.4th 759, 767.) The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties, and such intention is determined by the objective manifestations of the parties intent, including the words used in the agreement, extrinsic evidence of the surrounding circumstances under which the parties negotiated the contract, the object, nature and subject matter of the contract, and the subsequent conduct of the parties. (Ibid.)

Where the state breaches the plea bargain, under case law the remedy is either to require specific performance of the plea, or to permit defendant to withdraw the plea. (People v. Mancheno, supra, 32 Cal.3d at pp. 860-861.) The appropriate remedy will vary depending on the circumstances of each case; factors include which party breached the agreement, whether the breach was intentional or inadvertent, whether circumstances have changed since entry of the plea and before sentencing, whether additional information would constrain the court to a disposition it considers inappropriate. (Ibid.) Withdrawal of the plea is more appropriate where specifically enforcing the bargain would curtail the trial courts sentencing discretion. (See People v. Johnson (1974) 10 Cal.3d 868, 873; People v. Calloway (1981) 29 Cal.3d 666, 670-671.) Specific performance is appropriate where it will implement the reasonable expectations of the parties without binding the trial judge to a disposition the court finds unsuitable under the circumstances. (People v. Mancheno, supra, 32 Cal.3d at p. 361; People v. Calloway, supra, 29 Cal.3d at p. 671.)

Violation of the plea agreement is not subject to harmless error analysis. (In re Moser (1993) 6 Cal.4th 342, 353.) Defendants entitlement to the benefit of his bargain cannot be predicated on the assumption that violation of the bargain must result in some measurable detriment. (People v. Mancheno, supra, 32 Cal.3d at p. 865.)

Here, defendant argues he is entitled to specific performance in the form of a sentence that would have resulted in his release after 1.17 years of additional confinement. Respondent argues that even if defendants release date was a term of the plea bargain, such release date cannot be the subject of specific performance because the trial court could not approve petitioners prospective credits or otherwise advance his release date. (See, In re Williams (2000) 83 Cal.App.4th 936, 944-946.) Furthermore, respondent contends there is no evidence the trial court would have approved a sentence of less than 15 years, nor was respondent authorized to offer a lesser sentence. As a result, respondent contends that the only relief that could be granted would be rescission, in the form of withdrawal of the plea.

We disagree. Withdrawal of the plea does not provide petitioner with the benefit of his bargain. In this case, because of the mutual mistake demonstrated by the record, the more appropriate remedy is reformation, the alternative remedy to rescission. The choice between these remedies is determined through the application of equitable principles.

Here, the equities demand reformation of the contract to ensure specific performance of the terms mistakenly believed by both parties to be accurate. (See Lister v. Sorge (1968) 260 Cal.App.2d 333, 338, 341 [specific performance of contract as reformed]; see also 1 Witkin, Summary of California Law (10th ed. 2005), Contracts, 260, 273, 281 at pp. 288-291, 304-305, 311-312 [mutual mistake of parties].) The essential purpose of reformation is to reflect the intent of the parties. (Jones v. First American Title Ins. Co. (2003) 107 Cal.App.4th 381, 389.)

At this point, withdrawal of the plea is an inequitable result where both parties agreed a term of 1.17 additional years was acceptable, but were mistaken as to the prison term that would achieve that result. To require petitioner to withdraw his plea would force petitioner to face trial and a potentially longer sentence, a result he did not bargain for; furthermore, petitioner has already performed his part of the bargain, namely, he has pled guilty and served 1.17 years. Under these circumstances, the People have already obtained the period of imprisonment they found sufficient to offer at the time of the original plea, but if the plea is withdrawn, will be able to re-try petitioner and attempt to obtain a longer sentence. In the interim, petitioner has given up the period of freedom both he and the People understood to be sufficient.

Petitioner attempted to resolve the matter at a time when withdrawal of the plea would have been a meaningful option; the trial court declined to grant relief at that time, although it did not indicate it would have rejected sentencing that would have led to the agreed-to result. There is no evidence in the record that the court would have found unsuitable a lesser sentence that would in fact have resulted in the custody time promised, or that the prosecutor was not authorized to make the representations he made to induce the plea. Had the trial court allowed withdrawal of the plea when petitioner had only served a short time of the 1.17 years he mistakenly believed would satisfy his obligation under the no contest plea, it might be a different question. But as this court considers petitioners habeas petition, too much time has elapsed.

Reformation is thus the effective remedy equity demands here. On remand, the trial court can reduce the sentence to a level consistent with the net 1.17 additional term the People mistakenly offered and petitioner reasonably accepted. This appears a viable alternative, especially since the 15-year term is composed of an upper term 11-year sentence for the manslaughter charge and four years for the firearm enhancement. This offers opportunities to impose a legal sentence that will produce the appropriate result.

Therefore, we grant defendants writ petition, and remand for resentencing in accordance with this opinion.

DISPOSITION

Defendants petition for writ of habeas corpus is granted, and the case is remanded for resentencing in accordance with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

JOHNSON, Acting P. J.

WOODS, J.

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[1] Penal Code, section 1170, subdivision (d) provides that the court may, within 120 days of sentencing, recall the sentence on its own motion. At the time of the hearing the trial court suggested defendant consider a petition for habeas corpus.