Sonoma County Superior Court. Honorable Dana B. Simonds.
The opinion of the court was delivered by: Banke, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
This case requires us to decide whether criminal proceedings can be dismissed on the basis of a "cooperation" agreement between a defendant and local police department, not authorized by the district attorney. The trial court found law enforcement officers promised defendant a new felony charge and related probation violations would be dismissed if he worked with and provided information to the officers. The court further found defendant did both. On the basis of these findings, the trial court "enforced" the cooperation agreement and dismissed the felony charge and related probation violations. However, as we discuss herein, the law enforcement officers had no authority to promise the felony charge and related probation violations would be dismissed, and defendant's reliance on that unauthorized promise had no constitutional consequence permitting dismissal on due process grounds.*fn2
I. Factual and Procedural Background
In the trial court, the parties relied principally on federal cases both in support of and in opposition to defendant's motion to dismiss the criminal proceedings. The trial court likewise relied principally on federal cases in its ruling on the motion. This is understandable given the paucity of California cases discussing whether a criminal charge can be dismissed on the basis of an agreement, not authorized by the district attorney, wherein a law enforcement officer promises dismissal if the defendant cooperates.*fn3
As the parties' briefing in the trial court, and on appeal, reflects, however, many federal circuit courts have addressed the analogous issue of whether a dismissal promise made by a federal law enforcement officer, but not authorized by a federal prosecutor, is enforceable. We agree these federal cases are persuasive authority, particularly on constitutional issues. (People v. Burton (1989) 48 Cal.3d 843, 854, fn. 2 [258 Cal.Rptr. 184, 771 P.2d 1270]; People v. Bradley (1969) 1 Cal.3d 80, 86 [81 Cal.Rptr. 457, 460 P.2d 129].) As we discuss, these cases uniformly hold federal law enforcement officers have no independent authority to promise federal criminal charges will be dismissed and therefore such promises generally are not enforceable. They further hold that before an unauthorized promise to dismiss will be enforced on due process grounds, the defendant's reliance thereon must have constitutional consequence. Numerous cases from other states are also in accord on both points.
We conclude the law enforcement officers here had no authority to promise defendant the felony charge and related probation violations would be dismissed upon his cooperation. We also conclude this unauthorized promise cannot be enforced on due process grounds because defendant's reliance thereon did not have any constitutional consequence.
The standard of review in cases involving "cooperation" agreements depends on the issue raised. Whether the parties entered into an agreement and the terms of such usually are questions of fact reviewed under the substantial evidence standard. (See United States v. McInnis (1st Cir. 2005) 429 F.3d 1, 5 (McInnis); United States v. Carrillo (9th Cir. 1983) 709 F.2d 35, 37 (Carrillo) ["The district court was called upon to make a factual determination as to the nature and scope of an agreement between the government and Carrillo."].) Likewise, whether a party carried through with its part of the agreement generally is a question of fact reviewed under the substantial evidence standard. (See Carrillo, supra, 709 F.2d at p. 37; United States v. Rodman (1st Cir. 1975) 519 F.2d 1058, 1059 (Rodman).)
However, when a cooperation agreement embraces a promise to dismiss or reduce charges, whether the promise is authorized and enforceable usually is a legal question reviewed de novo. (United States v. Flemmi (1st Cir. 2000) 225 F.3d 78, 84 (Flemmi) [whether FBI agents could promise defendant use and derivative immunity was "a pure question of law"]; see Thomas v. Immigration and Naturalization Service (9th Cir. 1994) 35 F.3d 1332, 1337-1341 (Thomas) [due process claim focusing on whether federal prosecutor had authority to make promise about disposition of immigration proceedings reviewed de novo].)
A trial court's determination as to the appropriate remedy for breach of a cooperation agreement, i.e., dismissal of the charge or some other sanction, generally is reviewed for abuse of discretion. (United States v. Williams (9th Cir. 1986) 780 F.2d 802, 803 (Williams).) A court abuses its discretion if it applies incorrect legal principles, as well as when its decision exceeds the bounds of reason. (Westside Commission for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355 [188 ...