IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin
June 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CARLOS MANUEL ROJO-MORENO, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. SF097720A, SF100571A, SF105628A)
The opinion of the court was delivered by: Mauro ,j.
P. v. Rojo-Moreno CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Carlos Manuel Rojo-Moreno pleaded guilty to possession of methamphetamine for sale and admitted a prior narcotics conviction. He contends on appeal that the trial court deprived him of due process by refusing to consider his performance under a confidential agreement with the People and law enforcement, and by refusing to determine whether mitigation of his sentence was appropriate in accordance with the agreement. Defendant also contends his rights were violated under People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), because he was not sentenced by the same judge who accepted his plea.
We conclude that because the confidential agreement induced defendant to enter his plea, the trial court was required to determine the terms of the confidential agreement and the performance under that agreement. Defendant may have already received the benefit of his bargain. Depending on the circumstances, however, the trial court may have been required to entertain a request for a reduced prison term in accordance with the agreement, or it may have been required to allow defendant to withdraw his plea.
We also conclude that the record is unclear whether defendant made an Arbuckle waiver, but he forfeited this issue on appeal. Nonetheless, the judge who took defendant's plea should conduct the remand proceedings unless that judge is not available due to retirement or other reasons unrelated to internal court administrative practices.
Moreover, we deem defendant to have raised on appeal whether he is entitled to additional presentence conduct credits. We conclude he is entitled to 339 days of presentence conduct credits.
We will vacate the sentence and remand the matter to the trial court for further proceedings.
On September 5, 2007, law enforcement officers executed a search warrant at a residence in Stockton. Defendant was in a van parked in the backyard, and the officers found over three grams of methamphetamine, a firearm, and paraphernalia associated with narcotics sales in the van. Defendant was charged with possession of methamphetamine for sale, possession of a firearm by a convicted felon, and possession of ammunition by a convicted felon (case No. SF105628A). With respect to the narcotics count, the information alleged further that defendant (1) was armed with a firearm; (2) had three prior felony convictions; and (3) was convicted previously of possessing methamphetamine within the meaning of Health and Safety Code section 11370.2, subdivision (a) and Penal Code section 1203.07, subdivision (a)(11), which provide respectively for a three-year sentence enhancement and ineligibility for probation.
At the time the charges were filed, defendant was on probation for possession of methamphetamine (case No. SF097720A) and possession of methamphetamine for sale (case No. SF100571A) pursuant to negotiated guilty plea agreements. In light of defendant's new misconduct, the court revoked probation and issued orders to show cause why sentence should not be imposed.
On April 21, 2008, defendant entered into a cooperation/plea agreement with law enforcement and the prosecutor with respect to the new charges. Defendant agreed to perform certain confidential services for law enforcement and if he performed as promised, then the prosecutor would recommend that defendant be sentenced to eight months for a violation of Health and Safety Code section 11378, possession of methamphetamine for sale. To facilitate the agreement, defendant would plead guilty to the possession charge and admit a prior conviction. At the time of the plea, the prosecutor would recommend that defendant be released on his own recognizance pending a sentencing hearing. If defendant did not fulfill the terms of the agreement, then the guilty plea would stand and defendant would receive a sentence of six years in prison. If defendant partially performed, the agreement said the prosecutor could "give" him "'partial credit,'" which meant a reduction in defendant's sentence.
The confidential agreement provides that defendant had 90 days to perform the specified services for law enforcement, but the district attorney had discretion to extend the duration of the agreement. If defendant disobeyed any law or carried a weapon during the course of the agreement, the agreement was "null and void." The parties agreed "that a violation of law shall not require a conviction; rather, the violation shall be in accordance with probable cause standard of proof."
Thereafter, on May 9, 2008, defendant pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and also admitted he had committed a prior narcotics offense for purposes of a three-year sentence enhancement. (Health & Saf. Code, § 11370.2, subd. (a).) The court granted the prosecutor's request to dismiss the remaining charges and enhancements. Before pleading guilty, defendant stated he understood that doing so meant he would be ordered to serve six years in prison as punishment.*fn1 Defense counsel waived referral to the probation department, arraignment and time for judgment, and stated there was no legal cause why judgment should not be pronounced. The court determined that probation was not appropriate and sentenced defendant to a six-year prison term pursuant to California Rules of Court, rule 4.412.*fn2 The court stayed the execution of sentence until August 7, 2008. At the request of the prosecutor, the court released defendant on his own recognizance pending execution of sentence, and dismissed the two probation violation charges.
In a settled statement filed two years later, Judge James Hammerstone, who took defendant's plea and imposed the six-year sentence, stated he was aware a confidential agreement existed between defendant and the district attorney's office "that would possibly result in a recommendation by the prosecution at the time of execution of sentence." Judge Hammerstone never saw the agreement between defendant and the People. Had he known that it involved a potential reduction in sentence, he would not have imposed sentence and stayed the execution thereof; rather, he would have "put it over for pronouncement of judgment."
Meanwhile, defendant remained released on his own recognizance until at least August 25, 2008, according to the court minutes. Thereafter, defendant was charged with committing another narcotics offense on September 10, 2008, and with violating his probation in case Nos. SF100571A and SF097720A. Defendant was remanded and remained in custody until the hearing on his probation violations and the execution of sentence in case No. SF105628A, which is the subject of the present appeal.
Judge Richard Guiliani, rather than Judge Hammerstone, presided over the hearing on December 2, 2008. The trial court lodged the confidential agreement under seal in the record per defense counsel's request. The trial court reviewed the agreement, stated that defendant had "to make the people that he . . . made the contract with happy," but whether defendant complied with the contract's terms was not subject to judicial review. The trial court said it intended to execute the agreement defendant made with the trial court. Over defense counsel's objection, the trial court sentenced defendant to "the indicated judgment" of six years in state prison.
Defendant, through an interpreter, said he would not accept the sentence. The trial court replied it did not matter if defendant accepted it. Defendant had "made a deal with The Court and the People" and any other agreement with "the police department" was "collateral" to, and not part of, the plea agreement. The trial court read aloud the transcript of defendant's plea, wherein he agreed to the imposition of a six-year prison term and did not object to the pronouncement of judgment. According to the trial court, "You get what you bargained for" and defendant could raise his concerns about the collateral agreement on appeal.
"In anticipation of a possible appeal," the prosecutor stated that "on September 10th of 2008, in the area of Burns Way, the defendant was found to have what was later tested at the Department of Justice to be methamphetamine on him at 2.36 grams," which the prosecutor said violated a specific term of the confidential agreement. Rather than prosecuting the new charge and pursuing the orders to show cause for defendant's probation violations, the prosecutor opted to dismiss them in light of defendant's six-year sentence for the possession for sale offense.
I Defendant contends the trial court's refusal to consider the confidential agreement violated his due process rights. The prosecutor's promises contained in the agreement induced defendant to plead guilty, and he should have been permitted to demonstrate how and why he fulfilled the agreement and was entitled to a lesser sentence.
"The Supreme Court has . . . 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 [plea] bargain by an officer of the state raises a constitutional right to some remedy." (People v. Mancheno (1982) 32 Cal.3d 855, 860 (Mancheno) [citing Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433]; accord, People v. Crandell (2007) 40 Cal.4th 1301, 1307; Thomas v. I.N.S. (9th Cir. 1994) 35 F.3d 1332, 1337 ["It has long been the law that the government's failure to keep a commitment which induces a guilty plea requires that judgment be vacated and the case remanded"].)
Here, defendant's confidential agreement was both a plea agreement and cooperation agreement. A cooperation agreement is generally an agreement between the defendant and a law enforcement agency, but is analogous to a plea agreement in a number of respects. (People v. C.S.A. (2010) 181 Cal.App.4th 773, 778.) "As with a plea agreement, '[t]he government is held to the literal terms of [a cooperation] agreement, and ordinarily must bear responsibility for any lack of clarity.' [Citation.]" (Id. at pp. 778-779.)
In remedying a breach of a plea bargain, the goal is to redress the harm caused by the violation without prejudicing either party or curtailing the trial court's sentencing discretion. (Mancheno, supra, 32 Cal.3d at p. 860.) "The remedy chosen will vary depending on the circumstances of each case. . . . Due process does not compel that a particular remedy be applied in all cases. [Citation.] [¶] The usual remedies . . . are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when specifically enforcing the bargain would have limited the judge's sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances." (Mancheno, supra, 32 Cal.3d at pp. 860-861.)
In the present case, the confidential agreement between defendant and the People set forth the terms of their plea agreement and was the inducement for defendant's change of plea. Judge Giuliani's approach in this case is understandable given that the terms of the confidential agreement were never fully presented to, or approved by, Judge Hammerstone. Nevertheless, because the confidential agreement induced defendant to enter his plea, the trial court was required to determine the terms of the confidential agreement and the performance under that agreement. Defendant may have received the benefit of his bargain. But depending on the circumstances, the trial court may have been required to entertain a request for a reduced prison term in accordance with the agreement. (People v. Karaman (1992) 4 Cal.4th 335, 352 ["where the sentence is to a term of imprisonment, the trial court retains jurisdiction, during the period a stay is in effect and at any time prior to execution of the sentence, to reconsider the sentence and vacate it or impose any new sentence which is not greater than the initial sentence, just as it may do so on its own motion pursuant to section 1170, subdivision (d), within 120 days after the court has committed the defendant to the prison authorities"]; see also People v. Nubla (1999) 74 Cal.App.4th 719, 726-729.) And if the agreement impermissibly interfered with the court's sentencing discretion or provided for an unlawful sentence, then the trial court should have given defendant the opportunity to withdraw his plea.
The People agree that an agreement inducing defendant to enter a plea cannot be disregarded. But they ask us to review the confidential agreement and ascertain whether defendant failed to perform under its terms, noting that this is generally a question of fact. (People v. C.S.A., supra, 181 Cal.App.4th at pp. 777-778.) Defendant responds that we cannot act as a trier of fact in the first instance. Rather, we must remand the matter to the trial court for it to determine whether the parties complied with the agreement, and to exercise its discretion to mitigate his sentence if appropriate.
It is the general rule that an appellate court is not the appropriate forum in which to develop an additional factual record. (People v. Peevy (1998) 17 Cal.4th 1184, 1207.) Although an appellate court may take evidence or make findings of fact when a jury trial is not a matter of right, or where a jury has been waived (Cal. Const. art. VI, § 11, subd. (c); Code Civ. Proc., § 909), this does not apply in a criminal case. (People v. Cowan (1940) 38 Cal.App.2d 144, 153.)*fn3
Under the circumstances, we will vacate defendant's sentence and remand the matter to the trial court for it to determine if, as the People contended at the sentencing hearing, defendant violated the confidential agreement when he committed a new offense on September 10, 2008. Whether defendant violated the agreement depends upon whether the September 10 offense occurred within the term of the 90-day agreement and any extension thereof, or whether it occurred after the agreement had lapsed.*fn4 If the trial court finds there is probable cause to believe that defendant committed the offense while the agreement was in effect, then defendant received the benefit of his bargain. He agreed he was not entitled to a reduction in his six-year sentence under those circumstances.
However, if the commission of the new offense--even if supported by probable cause--was committed after the expiration of the agreement, then the court shall permit defendant to argue why his sentence should be mitigated because of the services he performed on behalf of the People and the police department, and the People shall meet their obligation under the agreement to recommend a reduction in sentence or explain why a reduced sentence is not appropriate. If the evidence supports a determination that defendant did not perform the services stated in the agreement, then defendant is not entitled to a reduction in his sentence.
If the evidence supports a determination that defendant fully or partially performed his obligations under the agreement, the court has the option of reducing defendant's sentence, but specific performance of the sentencing provisions of the agreement will not be appropriate if it binds the court to a disposition that it considers unsuitable under all the circumstances. (Mancheno, supra, 32 Cal.3d at p. 861.) The parties never apprised Judge Hammerstone of the sentencing provisions of the confidential agreement and the trial court never approved the parties' agreement in its entirety, including the potential reduction in defendant's sentence. Thus, if the sentence recommended by the parties is contrary to that which would be imposed by the trial court in the exercise of its discretion and the court opts not to reduce defendant's sentence despite his compliance with the confidential agreement, the trial court must offer defendant the opportunity to withdraw his plea. (Pen. Code, § 1192.5.)
II Defendant also contends his right to be sentenced by the same judge who accepted his plea was violated. "As a general principle, . . . whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea." (Arbuckle, supra, 22 Cal.3d at pp. 756-757.) If that judge is unavailable at the time of sentencing, the defendant has the option of proceeding before a different judge or withdrawing his plea. (Id. at p. 757 & fn. 5.)
Judge James E. Hammerstone accepted defendant's plea and imposed the six-year sentence on May 9, 2008. Thereafter, Judge Richard J. Guiliani confirmed the six-year sentence and ordered execution thereof on December 2, 2008.
The record does not clearly establish that defendant waived his rights under Arbuckle at any time prior to the December 2, 2008 hearing.*fn5 However, at the commencement of the December hearing, Judge Guiliani expressly stated "Judge Hammerstone took this plea. I assume there was an Arbuckle waiver." The clerk responded: "There was." Defendant did not object. Thus, defendant forfeited any rights under Arbuckle to have the hearing held by Judge Hammerstone. (See People v. Serrato (1988) 201 Cal.App.3d 761, 764-765.)
Nevertheless, because we remand for further proceedings for the court to exercise its sentencing discretion, and because it appears that Judge Hammerstone has retired, we will address defendant's Arbuckle rights on remand for the guidance of the trial court.
In People v. Dunn (1986) 176 Cal.App.3d 572, the trial judge who accepted the plea bargain retired before imposing sentence. The court found no Arbuckle error. (176 Cal.App.3d at p. 575.) Arbuckle does not stand for the blanket proposition that under all circumstances a criminal defendant who enters into an agreement with the prosecution is entitled to have the judge who accepts the plea impose sentence. "Arbuckle specifically dealt with the situation when 'internal court administrative practices' render it impossible or impracticable for the judge who accepts a defendant's plea to impose the sentence. . . . [¶] While it is established that the implied term of a negotiated plea first recognized by Arbuckle will override competing administrative practices of the court, it is clear to us that a negotiated plea does not carry with it an implied promise that the judge accepting the plea will not resign, retire, expire or be removed from the bench pending imposition of sentence. The People appropriately bear the risk of a judge's unavailability due to matters within the control of the court, but no good reason appears why they should bear the risk that the judge before whom defendant plead is no longer vested with judicial power to pass sentence. To the implied term recognized by Arbuckle that the judge accepting the plea will impose sentence must be added an implied condition: if that judge then still actively exercises judicial power." (Ibid.)
Judge Hammerstone should conduct further proceedings on remand if, at that time, Judge Hammerstone actively exercises judicial power by virtue of a pro tem appointment. If Judge Hammerstone is not available due to his retirement or other reasons unrelated to the internal court administrative practices, defendant must proceed before a different judge.
III The court awarded defendant 339 days of presentence custody credit plus 169 days of conduct credit, for a total of 508 days of presentence credit.
Pursuant to this court's miscellaneous order No. 2010-002, defendant is deemed to have raised the issue of whether amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence custody credits, apply retroactively to his pending appeal and entitle him to additional conduct credits.*fn6 We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)
The amendment effective September 28, 2010, which now supersedes the amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded the amendments increasing the rate of earning presentence conduct credit, effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in Penal Code section 2933 applies retroactively to all appeals pending as of September 28, 2010.*fn7
Accordingly, having served 339 days of presentence custody, defendant is entitled to 339 days of conduct credits, for a total of 678 days of presentence credits.
The judgment of sentence is vacated, and the matter is remanded to the trial court to (1) determine the terms of the confidential agreement; (2) determine whether the parties fully performed under the confidential agreement, or whether any party breached the confidential agreement before it lapsed; (3) consider arguments regarding whether a reduction in sentence, or a withdrawal of the plea, is appropriate; (4) exercise appropriate discretion in sentencing defendant, or allow defendant to withdraw his plea; (5) provide defendant with 339 days of conduct credit, for a total of 678 days of presentence credit; and (6) amend the abstract of judgment to reflect the changes in the judgment, and send the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P.J. BUTZ ,J.