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The People v. Somnang Kim

March 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SOMNANG KIM, DEFENDANT AND APPELLANT.



(Santa Clara County Super. Ct. No. 210962) Trial Judge: The Honorable Jerome E. Brock

The opinion of the court was delivered by: Rushing, P.J.

CERTIFIED FOR PUBLICATION

In what might serve as a monument to our "Byzantine" sentencing law (People v. Velasquez (1999) 69 Cal.App.4th 503, 505), we are called upon to decide how many lifetimes a defendant can be sentenced to spend in prison based upon a plea agreement calling for him to spend only one. We hold that where a criminal defendant enters a guilty plea on the understanding that he will serve one lifetime in prison, he cannot be sentenced to serve two or more lifetimes without first being given an opportunity to withdraw his plea. Because defendant Somnang Kim was sentenced to several lifetimes without being offered that choice, we will reverse the judgment and remand with directions.

BACKGROUND

In late 2003, defendant and two fellow gang members, Savin Sam and Bunnrith Pech, engaged in several shooting rampages in which each of them carried and discharged a firearm. In total they shot at 15 people, killing three of them. A few months earlier defendant had shot at two other people. All three men were charged by indictment with three counts of murder and, in defendant's case, 13 counts of attempted murder, plus three counts of assault with a firearm.*fn1 The indictment exposed all three to the death penalty by charging two special circumstances: that they committed the murders as active participants in a criminal street gang (Pen. Code, § 190.2, subd. (a)(22)), and that each was guilty of multiple murders (Pen. Code, § 190.2, subd. (a)(3)). Numerous non-capital sentence enhancements were charged, including that each defendant personally inflicted serious injury with a firearm (Pen. Code, § 12022.53 (§ 12022.53), subd. (d)).

All three defendants agreed to plead guilty on the understanding that the prosecution would abandon its efforts to secure a death sentence and that they would be sentenced instead to life without possibility of parole. At sentencing, however, the prosecutor urged the court to adopt the probation officer's recommendation, which was, in defendant's case, a life-without-parole term consecutive to three additional terms: life with possibility of parole, 400 years to life, and 29 years 8 months. Defendant's attorney objected that such a sentence would violate the plea bargain as well as the admonitions the court gave to defendant when he entered his plea, and that it constituted cruel and unusual punishment. The court nonetheless imposed the recommended sentence. At no time did it indicate whether it was acting in conformity with the terms of the bargain as it understood them, or intended instead to deviate from those terms. In any event it did not offer defendant an opportunity to withdraw his plea. Sam did not appeal. Pech filed a notice of appeal and opening brief, but then dismissed his appeal. Only Kim's appeal is now before us.

DISCUSSION

The questions presented are whether the sentence imposed by the trial court violated the plea agreement and, if so, what to do about it. The basic principle is that "[w]hen a guilty plea is entered in exchange for specified benefits such as . . . an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon." (People v. Walker (1991) 54 Cal.3d 1013, 1024.) This is a rule of constitutional stature, implicating due process concerns. (Ibid., citing People v. Mancheno (1982) 32 Cal.3d 855, 860.) The rule is not offended by minor deviations from the bargain; to warrant relief, the variance must be " 'significant' in the context of the plea bargain as a whole." (Ibid.)

Defendant contends that the sentence here violated the plea agreement, and respondent concedes the point, stating that it "significantly deviated from the agreed-upon sentence" and marked "a substantial deviation from the agreed-upon plea." We cannot help but detect in this premise a tinge of the absurdity inherent in multiple consecutive life sentences. For a sentence to violate a plea bargain, it must impose a "punishment more severe" than whatever the defendant agreed to. (People v. Brown (2007) 147 Cal.App.4th 1213, 1221.) In what sense is imprisonment for multiple lifetimes--in this case at least five--"more severe" than imprisonment for one lifetime?*fn2 By granting the defendant only one life, nature provides an absolute invulnerability to such supernumerary sentences. To sentence him to multiple lifetimes in prison is to impose a punishment he literally cannot bear.

We recognize that such a sentence serves at least in part as an attempt to express the community's sense of outrage and condemnation toward the defendant's conduct and, perhaps, his person. But to respond to a justifiable sense of outrage and injury by pronouncing punishments that cannot actually be inflicted might appear to some a potentially counterproductive expression of impotence, like kicking a tree root over which one has tripped.

This does not mean that we reject respondent's concession of error. In purely arithmetic terms there is a very considerable difference between a life sentence and a sentence of several lifetimes. The Supreme Court itself has detected a potentially different "practical effect" between a life-without-parole sentence and a sentence of life without parole plus 25 years to life. (People v. Shabazz (2006) 38 Cal.4th 55, 70, fn. 9.) It follows that the sentence imposed deviated significantly from the plea agreement.

Plea bargains are generally governed by a specialized form of the law of contracts. (See People v. Scheller (2006) 136 Cal.App.4th 1143, 1152, quoting People v. Renfro (2004) 125 Cal.App.4th 223, 230 [" 'As a general rule, a plea bargain approved by the court is enforceable under contract principles.' "]; People v. Shelton (2006) 37 Cal.4th 759, 767.) For present purposes, two principles predominate. First, like the parties to a private contract, the state and the defendant are bound by the agreement as between themselves. (People v. Daugherty (1981) 123 Cal.App.3d 314, 321 ["both the prosecutor and the defendant are entitled to the benefit of the bargain they have struck"].)

Second, however, the sentencing court is not bound by the bargain, but is empowered to disapprove it and deny it effect, at least so long as the parties can be restored to their original positions. This principle is codified as part of an admonition the court is required to give when a plea bargain is placed before it, i.e., it must "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."*fn3 (Pen. Code, § 1192.5.) Implicit in this language "is the premise that the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea." (People v. Johnson (1974) 10 Cal.3d 868, 873; see People v. Kaanehe (1977) 19 Cal.3d 1, 13 ["a defendant should not be entitled to enforce an agreement . . . calling for a particular disposition against the trial court absent very special circumstances"] ; People v. Stringham (1988) 206 Cal.App.3d 184, 195 [referring to "the court's near-plenary power granted by [Penal Code] section 1192.5 to retract approval of a plea bargain"]; In re Falco (1986) 176 Cal.App.3d 1161, 1165 ["The court's initial approval is not binding and may be withdrawn at the time of sentencing"]; People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338 ["Such withdrawal is permitted, for example, . . . where the court becomes more fully informed about the case [citation], or where, after further consideration, the court concludes that the bargain is not in the best interests of society. [Citation.]"].)

Some potential for confusion appears in broad statements to the effect that once a trial court has "accepted" a plea bargain, it too is "bound" by it. (See, e.g., People v. Segura (2008) 44 Cal.4th 921, 930 (Segura) ["Acceptance of the agreement binds the court and the parties to the agreement."] ; People v. Ames (1989) 213 Cal.App.3d 1214, 1217 [" 'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain' "]; cf. Segura, supra, at pp. 931-932 ["the trial court may approve or reject the parties' agreement, but the court may not attempt to secure such a plea by stepping into the role of the prosecutor, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved"].) These pronouncements are sometimes marked by an unfortunate vagueness about the factual context in which they apply, and most particularly the time at which the court becomes "bound" by the agreement. Taken out of context, they might suggest that the court surrenders its sentencing discretion the moment it accepts a negotiated plea. Such a view is of course irreconcilable with the statute and cases cited in the preceding paragraph. The statements mentioned here are best understood as only prohibiting the court from unilaterally modifying the terms of the bargain without affording--or after it has become impossible to afford--an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off. Thus in Segura, supra, 44 Cal.4th 921the defendant sought to avoid the immigration consequences of a conviction by modifying the agreed sentence after ...


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