In re JOHN DEL LEWALLEN on Habeas Corpus.
Crim. No. 20212
Supreme Court of California
Feb. 9, 1979.
23 Cal. 3d 274
Ephraim Margolin and Nicholas C. Arguimbau for Petitioner.
Robert Nicco, Public Defender (San Francisco), and Gordon H. Armstrong, Deputy Public Defender, as Amici Curiae on behalf of Petitioner.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant, Attorney General, Edward P. O‘Brien, Assistant Attorney General, Timothy A. Reardon and Herbert F. Wilkinson, Deputy Attorneys General, for Respondent.
OPINION
MOSK, J.—In this application for writ of habeas corpus, petitioner seeks relief from the sentence imposed after his jury trial resulted in conviction.
Petitioner was charged with misdemeanor violations of
Petitioner‘s intransigence was vindicated: after trial by jury he was convicted of the Vehicle Code violation and acquitted of all the remaining charges. The presentence report by the probation department and the prosecution both recommended that defendant be fined $315.50 and placed on formal departmental probation for one year. Defense counsel‘s only material objection to the report and the recommendations consisted of the suggestion that informal rather than formal probation would be sufficient. The trial judge, however, sentenced petitioner to 90 days in county jail, suspended; $315.50 fine; and 3 years formal departmental probation with the following conditions: 30 days in county jail to be served on weekends; alcohol rehabilitation, drug rehabilitation, and “drunk driving school” as prescribed by the probation department;
Our attention is directed to two statements by the trial court to demonstrate that sentencing was influenced by improper considerations. First, in response to defense counsel‘s suggestion that placing defendant on informal probation would suffice, the trial judge responded, “You mean whether or not there‘s a disposition or not after a jury trial?” Second, after sentencing the trial judge stated, “I think I want to emphasize there‘s no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody‘s time, and what‘s he got to lose. And as far as I‘m concerned, if a defendant wants a jury trial and he‘s convicted, he‘s not going to be penalized with that, but on the other hand he‘s not going to have the consideration he would have had if there was a plea.”
Petitioner also contends various trial court minute orders demonstrate that his sentence greatly exceeds those ordinarily imposed in California for equivalent criminal conduct.
We must decide whether petitioner has established that the trial court‘s exercise of its sentencing function was improperly influenced by his refusal of the proffered plea bargain and insistence on his right to trial. We conclude that he has carried his burden; accordingly, the sentence must be vacated and the case remanded for resentencing.1
I
In habeas corpus procedure the return to the order to show cause must allege facts tending to establish the legality of the petitioner‘s detention; it is thus analogous to the complaint in civil actions. (
It is important to note that review on habeas corpus, unlike an appeal, is not limited to the trial record. In the instant case, however, the People offer nothing more in support of their claim that petitioner‘s confinement is lawful than a general denial of his allegation that the judge improperly considered his election to stand trial rather than to аccept the proffered plea bargain. By alleging only a conclusionary statement of ultimate fact in their return, the People have indicated a willingness to rely on the record. Furthermore, the People do not dispute petitioner‘s assertion that the sentence herein substantially exceeds that imposed in this jurisdiction on other first offenders, nor do they question the accuracy of the documentary evidence submitted by petitioner as exhibits to his petition. Thеre being no disputed factual questions as to matters outside the trial record, the merits of petitioner‘s claim can be reached without ordering an evidentiary hearing.2
II
It is well settled that to punish a person for exercising a constitutional right is “a due process violation of the most basic sort.” (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363 [54 L.Ed.2d 604, 610, 98 S.Ct. 663, 668].) The constitutional right to trial by jury in criminal prosecutions is fundamental to our system of justice (
“A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently
The People concede that the refusal of an accused to negotiate a plea with the prosecution must not influence the sentence imposed by the court after trial. Appellate courts in California and in other jurisdictions have vacated sentences when the trial court has apparently used its sentencing power, either more severely or more leniently than the norm, in order to expedite the resolution of criminal matters. (See, e.g., People v. Morales (1967) 252 Cal.App.2d 537 [60 Cal.Rptr. 671]; United States v. Wiley (7th Cir. 1960) 278 F.2d 500; United States v. Stockwell (9th Cir. 1973) 472 F.2d 1186; United States v. Tateo (S.D.N.Y. 1963) 214 F.Supp. 560; Johnson v. State (1975) 274 Md. 536 [336 A.2d 113]; Letters v. Commonwealth (1963) 346 Mass. 403 [193 N.E.2d 578].) Such cases are consistent with United States v. Jackson (1968) 390 U.S. 570 [20 L.Ed.2d 138, 88 S.Ct. 1209] (holding unconstitutional the federal Kidnaping Act (
The trial judge‘s rhetorical query at sentencing—“You mean whether or not there‘s a disposition or not after a jury trial?“—clearly reveals that he gave consideration to petitioner‘s election to рlead not guilty in imposing sentence. That a defendant pleads not guilty is completely irrelevant at sentencing; if a judge bases a sentence, or any aspect thereof, on the fact that such a plea is entered, error has been committed and the sentence cannot stand.
The People insist that the total comments of the trial judge were ambiguous and the ambiguity must be resolved in favor of holding there was regularity in the judicial proceedings. We find, however, that the colloquy here is remarkably similar to that in People v. Morales, supra, 252 Cal.App.2d 537. There the Court of Appeal, in reversing, emphasized that “by increasing the penalty in the case of a defendant who chooses to rely on the presumption of innocence, to put the state to the test of proving its case, and to assert his right to a jury trial, one is in effect penalizing a defendant who asserts rights to which he is entitled.” (Id., p. 546.) In Morales the sentencing judge spoke much like the judge in the
In the instant case, the judge reacted in precisely that manner. Said he, “as far as I‘m concerned, if a defendant wants a jury trial and he‘s convicted, he‘s not going to be penalized with that, but on the other hand he‘s not going to have the consideration he would have had if there was a plea.” (Italics added.) It is clear the judge declared that petitioner had a right to a jury trial—but under these circumstances he would not get the consideration he would otherwise have, that is, he would be treated differently because he asserted his constitutional rights.
The People would have us interpret the trial court‘s remark, “he‘s not going to have the consideration he would have had if there was a plea,” as meaning that a defendant convicted after a plea of not guilty has no “vested right” in the sentence offered by the prosecution before trial. In other words, the convicted defendant is not entitled to the consideration, as that word is used in the law of contracts, offered him in exchange for a plеa of guilty. We conclude that when the judge‘s statements are viewed as a whole, there can be no rational interpretation other than that he was basing petitioner‘s sentence at least in part on the fact that he declined the prosecution‘s plea bargain and demanded a trial by jury. The People are correct, however, in asserting that a defendant is not entitled, as a matter of law, to the same sentence he would have received had hе pleaded guilty.
Though it is subject to occasional abuse and frequent criticism, plea bargaining has been recognized as an accepted practice in American criminal courts which, if administered properly, contributes to the expeditious administration of justice. (People v. West (1970) 3 Cal.3d 595, 604 [91 Cal.Rptr. 385, 477 P.2d 409]; see also People v. Williams (1969) 269 Cal.App.2d 879, 884 [75 Cal. Rptr. 348].) The statutory framework for plea negotiation is set forth in several sections of the Penal Code. (
Just as a trial judge is precluded from offering an accused in return for a guilty plea a more lenient sentence than he would impose after trial (
We emphasize, however, that a trial court‘s discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution. The imposition of sentence within the legislatively prescribed limits is exclusively a judicial function. (People v. Navarro (1972) 7 Cal.3d 248, 258 [102 Cal.Rptr. 137, 497 P.2d 481].) When granting probation, as in the instant case, courts have broad discretion to impose conditions directed toward rehabilitation of the offender and safety of the public. (In re Bushman (1970) 1 Cal.3d 767, 776 [83 Cal.Rptr. 375, 463 P.2d 727].) Legitimate facts may come to the court‘s attention either through the persоnal observations of the judge during trial (see, e.g., United States v. Grayson (1978) 438 U.S. 41 [57 L.Ed.2d 582, 98 S.Ct. 2610]), or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution.3
Thus it is clear that under appropriate circumstances a defendant may receive a more severe sentence following trial than he would have received had he pleaded guilty; the trial itself may reveal more adverse information about him than was previously known. A court may not, however, impose a sentence that conflicts with a defendant‘s exercise of his constitutional right to a jury trial. (See In re Manino (1971) 14 Cal.App.3d 953, 967 [92 Cal.Rptr. 880, 45 A.L.R.3d 996].) The comments of the judge reveal that is what occurred here.
Bird, C. J., Tobriner, J., Richardson, J., Manuel, J., and Nеwman, J., concurred.
CLARK, J., Dissenting.—The majority opinion reveals a profound misunderstanding of both the trial judge‘s remarks and the constitutional principles applicable to plea bargaining.
A fair reading of the record clearly reveals the judge was saying: (1) Under a plea bargaining system a defendant pleads guilty in exchange for more lenient treatment than he could reasonably expect to receive upon being convicted after trial. (2) Therefore, while a defendаnt who pleads not guilty and is convicted after jury trial must not be penalized for exercising his constitutional rights, he is not necessarily entitled to the lenient treatment he would have received for pleading guilty. Rather, such a defendant must show that leniency is appropriate under the facts and circumstances of his case. (3) Petitioner failed to make the required showing; to the contrary, aggravating factors of substantial importance were revealed by the evidence adduced at trial.
The majority take exception to two remarks made by the trial judge. “First, in response to defense counsel‘s suggestion that placing petitioner on informal probation would suffice, the trial judge responded, ‘You mean whether or not there‘s a disposition or not after a jury trial?’ Second, after sentencing the trial judge stated, ‘I think I want to emphasize there‘s no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a nеgotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody‘s time, and what‘s he got to lose. And as far as I‘m concerned, if a defendant wants a jury trial and he‘s convicted, he‘s not going to be penalized with that, but on the other hand he‘s not going to have the consideration he would have had if there was a plea.’ ” (Ante, p. 277.)
As to the first remark, the majority misconceive its significance when they simply state it was “in response to defense counsel‘s suggestion that placing defendant on informal probation would suffice.” Defense counsel
With regard to the second statement, the majority cannot deny that the judge expressly affirmed, “as far as I‘m concerned, if a defendant wants a jury trial and he‘s convicted, he‘s not going to be penalized with that ....” Hоwever, they argue that the judge contradicted himself when he went on to say of such a defendant: “but on the other hand he‘s not going to have the consideration he would have had if there was a plea.” There is, of course, no contradiction here. As has been stated earlier, the judge clearly meant that, although a defendant who pleads not guilty and is convicted after jury trial must not be penalized for exercising his constitutional rights, he is not necessarily entitled to the lenient treatment he would have received for pleading guilty, but must show that leniency is appropriate under the facts of his case. So understood, the judge‘s remarks are clearly consistent with the constitutional principles applicable to plea bargaining, as will now be shown.
In Corbitt v. New Jersey (1978) 439 U.S. 212 [58 L.Ed.2d 466, 99 S.Ct. 492], the high court considered the constitutionality of a New Jersey statute that provides for imposition of a mandatory life sentence on a defendant convicted of first degree murder after a jury trial, but that also allows a trial judge discretion to accept a plea of nolo contendere to homicide generally and then to impose life imprisonment or a lesser sentence. The defendant contended that the possibility of a sentence of less than life upon a plea of nolo contendere, combined with the absence of a similar possibility when found guilty of first degree murder by a jury, was an unconstitutional burden on his rights under the Fifth, Sixth and Fourteenth Amendments and аlso violated his right to equal protection under the Fourteenth Amendment. In rejecting these contentions the court restated the constitutional principles applicable to this case.
“Had Corbitt tendered a plea and had it been accepted and a term of years less than life imposed, this would simply have recognized the fact
Reiterating this point, the court stated: The system of plea bargaining “permits a propеr amount of leniency in return for pleas, leniency that is denied if one goes to trial. In this sense, the standard of punishment is necessarily different for those who plead and for those who go to trial. For those who plead, that fact itself is a consideration in sentencing, a consideration that is not present when one is found guilty by a jury.” (Id., at p. 224, fn. 14 [58 L.Ed.2d at p. 477].)
The foregoing principles are, I submit, entirely consistent with the trial judge‘s statement that “there‘s no reason in having the District Attorney attempt to negotiate mаtters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody‘s time, and what‘s he got to lose. And as far as I‘m concerned, if a defendant wants a jury trial and he‘s convicted, he‘s not going to be penalized with that, but on the other hand he‘s not going to have the consideration he would have had if there was a plea.”
Moreover, the majority opinion does not tell us the trial judge prefaced the foregoing statement with the observation: “I think this case is much more serious than perhaps appears on the surface....” Certainly the presentence report provided substantial grounds for denying petitioner the leniency granted a defendant entering a bargained-for guilty plea to the simple offense of drunk driving. First, the majority concede that petitioner‘s participation in a drug rehabilitation program as a condition of probation was justifiеd by information in the presentence report that
Second, as the majority concede (ante, p. 281), factors legitimately influencing sentencing may come to the court‘s attention during trial. In this case the judge came to the justified conclusion that, while petitioner had been acquitted of the firearm charges, his probation should be conditioned on confiscatiоn of the firearm found in his possession and on future nonpossession of firearms.
We have not been furnished with a reporter‘s transcript of the trial, but the presentence report indicates that when petitioner used the hospital restroom an officer observed him remove something from his pants and drop it behind the restroom door, producing the sound of a metal object hitting the floor. The only metal object the officer found behind the door was a loaded .38 caliber derringer. According to the judge‘s summary of the evidence, petitioner admitted ownership of the pistol but claimed he “gave it to his cousin who had six kids and lived in Pacifica and needed it for herself and protection. He gave it to her the day after he got it, and suddenly the gun turns up at the washroom in the Emergency Hospital.” The judge “recogniz[ed] fully that the jury did not convict [petitioner] on the gun charge.” However, in the absence of any reasonable explanation for the pistol‘s presence in the hospital restroom, the judge would have been, as he said, “naive if I ignored it in imposing sentence.”
Finally, the presentence report revealed that while petitioner had not run afoul of the law recently, he had a bad record. “Between the years of 1952 and 1971 the defendant has had a substantial number of arrests. In 1961, his probation was revoked and he was sentenced to State Prison for six months to ten years. In 1963, he was paroled. In 1964, he was sent back to prison fоr [burglary].... The defendant was paroled on March 30, 1967 and discharged on April 25, 1969.”
In conclusion, as has been stated, the record amply supports the trial court‘s refusal to extend petitioner the leniency that would be granted to a defendant entering a bargained-for guilty plea to the simple offense of drunk driving.
The writ should be denied.
Notes
However, the sentencing judge may not consider the gun charge of which defendant was acquitted. This was made clear in People v. Lent (1975) 15 Cal.3d 481 [124 Cal.Rptr. 905, 541 P.2d 545].