P. v. Casillas

Filed 6/21/07 P. v. Casillas CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant entered a negotiated plea of guilty to one count of soliciting an agent to commit murder (Pen. Code,  653f, subd. (a)), and was sentenced to the upper term of nine years in state prison. As the Attorney General concedes, the sentence was imposed upon defendant following proceedings that did not comply with the plea agreement. We must therefore reverse the judgment and remand the case to the trial court.

STATEMENT OF FACTS[1]

At the change of plea hearing defendant agreed to plead guilty to one count of soliciting an agent to commit murder in exchange for dismissal of the remaining charges.[2] An additional agreement of the plea was that the prosecutor would not argue for either prison or jail time, but was free to argue the facts at the sentencing hearing. The court reiterated its understanding that under the terms of the open plea negotiated by the parties, The DAs office will argue the facts but will not make a recommendation on jail time.

At the subsequent sentencing hearing, testimony from defendant was offered, reports from experts were submitted by the defense, and extensive argument was presented. The probation report recommended imposition of the middle term of six years in state prison. The defense asked the court to grant probation.

The prosecutor gave a lengthy summary of the facts of the case, followed by a reference to the factors in aggravation and the factors in mitigation, primarily that defendant wanted five people murdered and was actively trying to get someone to do it. Defendants amenability to any reasonable terms of probation was questioned. The prosecutor also indicated that the enormity of the offense makes him ineligible for probation. The prosecutor then argued: And when you consider those consequences to those five people, a prison sentence is the only reasonable sentence that the court can give for Mr. Casillas, with this conduct and the circumstances and these facts. Finally, the prosecutor urged the court not only to deny probation and impose a prison sentence, but to impose the aggravated term, based upon the preponderance of aggravating circumstances.

DISCUSSION

Defendant argues that by seeking imposition of an upper term state prison sentence the prosecutor violated his contractual right under the plea bargain and his Due Process rights under the United States and California Constitutions to the benefit of his plea bargain. He asks us to remand the case and grant him the option to withdraw his plea, or in the alternative to obtain a new sentencing hearing.

The Attorney General correctly concedes that the prosecution breached the plea agreement by arguing that appellant should be sent to prison. According to the agreement as articulated upon entry of the plea, the prosecution promised to refrain from argument in favor of prison or jail time. The prosecutor breached the agreement at the sentencing hearing by expressly seeking imposition of an upper term state prison sentence. The parties to a plea bargain must adhere to its terms. (People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879, citing People v. Walker (1991) 54 Cal.3d 1013, 1022.) It is settled 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. [Citation.] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy. [Citations.] This does not mean that any deviation from the terms of the agreement is constitutionally impermissible. [Citation.] Rather, the variance must be  significant in the context of the plea bargain as a whole to violate the defendants rights. [Citations.] However, when there is such a variance, the violation of the plea bargain is not subject to harmless error analysis. Rather, the defendant is entitled to an appropriate remedy. (People v. Letteer (2002) 103 Cal.App.4th 1308, 1316, italics omitted; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 59.)[3] The violation of the plea bargain here was significant.

The question of the nature of the remedy remains.  [V]iolation of the bargain by an officer of the state raises a constitutional right to some remedy. [Citations.] [] The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of each case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases. [Citation.] [Citation.] (People v. Olea (1977) 59 Cal.App.4th 1289, 1298.)

We find that under the circumstances presented here, granting defendant the option of specific performance of the plea agreement is an appropriate remedy, as it returns the proceedings to the point at which the error occurred, and may redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. (SeePeople v. Kaanehe (1977) 19 Cal.3d 1, 1315; People v. Toscano (2004) 124 Cal.App.4th 340, 345; People v. Mikhail (1993) 13 Cal.App.4th 846, 858.) A defendant also has the established right to withdraw his or her guilty plea if the plea bargain is not honored. (People v. Casillas (1997) 60 Cal.App.4th 445, 450.)

DISPOSITION

Accordingly, the judgment is reversed. The case is remanded to the trial court with directions to grant defendant the opportunity to withdraw his guilty plea; or, if

defendant chooses not to withdraw his plea, to conduct sentencing proceedings in accordance with the plea bargain.[4]

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] In light of the plea and the issue presented on appeal we will not recite the evidence pertinent to the charged offenses.

[2] The information included four additional counts of soliciting an agent to commit murder (Pen. Code,  653f, subd. (a)), one count of carrying a loaded firearm (Pen. Code,  12031, subd. (a)), one count of carrying a concealed firearm (Pen. Code,  12025, subd. (a)(3)), and one count of carrying a concealed weapon (Pen. Code,  12020, subd. (a)(4)). The charges were dismissed with a Harvey waiver.

[3] We recognize that, If a defendant, who has been admonished concerning the right to withdraw the plea, does not object to punishment in excess of the bargain, the defendant relinquishes the right to withdraw the plea. [Citation.] If a defendant has not been properly admonished, a failure to object to increased punishment does not waive the defendants right to the benefit of the bargain. (In re Jermaine B. (1999) 69 Cal.App.4th 634, 640; see also People v. Walker, supra, 54 Cal.3d 1013, 10241025; People v. DeFilippis, supra, 9 Cal.App.4th 1876, 1879; People v. Clark (1992) 7 Cal.App.4th 1041, 10481049.) Here, defendant did not move to withdraw his plea below, but neither was he admonished of his right to withdraw the plea. We thus we find no waiver. (People v. Walker, supra, at p. 1025.)

[4] In light of our conclusion and disposition of the case, we need not reach defendants argument that he was denied his due process rights to a jury trial and finding of guilt beyond a reasonable doubt under Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856], by the trial courts imposition of an upper term.