*1 S028225. Dec. [No. 1993.] PEOPLE,
THE Plaintiff and Respondent, McCLELLAN,
GREGORY Defendant Appellant.
Counsel Hoffman, Florence Court, V. under appointment by Tho- Supreme Condit, mas W. under appointment by Court of for Defendant Appeal, and Appellant. General,
Daniel E. Williamson, Lungren, Attorney Chief Assistant George General, Anderson, General, Attorney Robert R. Assistant Attorney Edgar Peña, Jr., A. Kerry, Rosendo and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion GEORGE, This case related to the issue presents question closely J. Moser, ante, involved in In re page 723]. who, Moser, a criminal defendant to a pleaded pursuant agreement, murder, his aside sought to second to have conviction set on degree court, on that the trial him of the direct habeas corpus ground advising concerning of his advised him plea, erroneously consequences proposed who, term of In the a defendant potential parole. length to a to assault with intent to commit pursuant plea agreement, pleaded guilty to have set on that the seeks aside guilty plea appeal ground rape, court, him to inform him trial failed entry plea, advising conviction offense he would be as a sex of this required Penal Code section 290.1 pursuant “a who has after As explained pleaded with regard or erroneous advice from the receiving inadequate relief is entitled to obtain plea generally only potential consequences *4 advice, i.e., she was that he or erroneous establishing prejudiced by by , . for the advice . . . . . that but trial court’s erroneous establishing by ante, at (Moser, defendant would not have entered guilty plea.” 345.) In the because the on fails to establish appeal record he entered his had been advised defendant would not have guilty plea and fails to establish sex offender also mandatory requirement, of defend violates the terms imposition registration requirement in holding we conclude that the Court erred Appeal ant’s plea agreement, relief, judgment defendant was and therefore reverse entitled the Court of Appeal. (cid:127) Background
I. and Factual Procedural 12, 1990, to a responded request officers police Bakersfield May On T., minor, of age. who was 16 years an Donna injured concerning assistance in the had been attacked learned that the minor subsequently police residence, had description man of defendant’s of a that a bathroom friend’s crime, fingerprints that defendant’s and observed the vicinity been at the scene. were found 1990, County jail, at the Kern officers contacted police
In July He was unrelated charges. arrest on following was in custody where he T., on and subse- the assault Donna arrest in connection with under placed with intent count I—assault follows: information as charged was quently 220, 261, (a)(2)); rape count II—attempted subd. (§§ to commit rape bodily 664) great infliction (a)(2), with the intentional (§§ subd. IV— 460); count (§§ and (§ 1203.075); count III—burglary injury (d)). The information (§ subd. bodily injury resulting serious battery the Penal Code. statutory references are to undesignated 1All further also that defendant had been of a alleged previously felony convicted serious 667.5, (§ (a)), (as subd. a (§ (b)), had served term prior prison subd. and I, II, III) (§ counts 12022.7). and had inflicted great injury bodily defendant was held to answer
Following hearing, preliminary above thereafter charges, entering of not and guilty denying additional allegations. defendant withdrew his of not and entered September I, to count assault with intent admitting to commit also rape, infliction allegations intentional of great bodily injury, serious prior conviction,
felony and service of a term. Defendant’s prior prison guilty plea was conditioned dismissal of the specifically upon attempted rape, burglary, and and battery charges state sentence not to exceed prison (based years thirteen a middle term sentence four for the upon years with (§ 220), assault intent to commit a consecutive enhance- three-year 12022.7), ment for the great (§ bodily injury allegation consecutive five- (§ enhancement year (a)), serious allegation subd. felony and consecutive enhancement for the term one-year prior prison allegation 667.5, (§ (b)).2 subd.
Because it was conditioned a sentence not to exceed years dismissal of the attempted rape, burglary, battery charges, *5 offered substantial to benefits defendant. to
Prior
defendant’s
trial court
accepting
the
and accu-
plea,
fully
advised
rately
defendant of his
constitutional
court also accu-
rights.
rately advised defendant as to the
term he
of the
would face
length
parole
reporter’s
hearing
following
2The
transcript
colloquy:
of the
reveals the
“The Court:
my understanding
will
plea
is
enter a
to
[I]t
Mr. McClellan
count one
information,
12022.7,
220/261(2).
the
charging a violation of
He will admit the
the enhance-
ment,
enhancement,
enhancement,
the 667
maximum exposure
the 667.5
for a
of thirteen
Harvey
years,
and the other
be
your
counts will
dismissed with a
waiver. Is that
understand-
ing?
Humphrey
Yes,
“Mr.
People]:
[representing
your
Honor.
“The
Court:
Ms. Candelaria-Ruiz?
“Ms. Candelaria-Ruiz
[representing
Yes.
defendant]:
McClellan,
“The Court: Mr.
your understanding?
is that
“The
Defendant:
Yes.”
felonies,
separate prison
prior
imprison-
Because defendant had
two
false
served
terms for
degree
imposing
ment and first
the trial
an
burglary,
court did not err
enhancement
conviction,
(a),
an
pursuant
burglary
to section
for the
as well as
prior
subdivision
667.5,
(b),
pursuant
prior prison
of the
term on
enhancement
to section
subdivision
for service
(Cf. Jones
charge
of false
Upon to dismiss the attempted burglary, terms of moved agreement, rape, effect. remaining conditioned battery charges, officer filed her recommending October probation report denied, totaling be sentenced to a term that defendant prison probation assault, enhancements), term for the plus (including 6-year upper years as a sex offender pursuant and that defendant be required section 290. later, court, the trial having hearing
At the conducted sentencing days criminal and defendant’s officer’s report reviewed probation record, . . in this case ... choice. [sentencing] observed that “[t]he (described at the change term between [four-year] mid[dle] (recommended by term” the probation hearing) [six-year] upper low term is intent to “The officer) assault with commit rape. defendant’s in pertinent part: 3Section 290 provides *6 with intent of “(a) in this state of the offense assault Any person who . . is . . . convicted . shall, city and any city, or days coming county, of into within to commit . . . ... register length for that of time or is domiciled county temporarily in which he or she resides county the of the or she or sheriff city of the in which he is domiciled police with the chief of area unincorporated in an .... if he or she is domiciled (1) writing signed by person, the in “(e) a statement registration The shall consist of Justice, (2) the of and Department the may required be [providing] information thereafter, law registering days the of the Within three fingerprints photograph person. and statement, fingerprints, photograph and the agency agencies or shall forward enforcement Department the of Justice.” inform the it shall approves plea, of pertinent part: in “If the court provides 4Section 1192.5 (2) may, (1) binding, it is not making plea approval prior the its to the of the defendant judgment, of probation pronouncement or hearing application on the time set for the at the matter, in such light consideration in the of further approval its withdraw to do so.” plea his if he desires to withdraw permitted shall be the defendant not a viable alternative based on the facts and this circumstances of case as well in as the circumstances that have been cited obviously aggravation however, circumstances, . . . The . Court feels that under the that the [¶] plea is the middle term with the bargain appropriate enhancements for the convictions is an in that And sentence that’s appropriate regard. [¶] what the Court is to do.” going sentence,
Prior to the trial invited imposing court defense counsel to comment. defense counsel Although raised to other specific challenges aspects did probation officer’s she not the recom- report, challenge mendation set forth in the probation officer’s that defendant be report required as a sex offender. After defendant to a sentencing prison declared, term totaling “The years, defendant also instructed register as under the of of required Section 290 provisions Penal Code.” Defendant not did an interpose objection registration to the nor did he requirement, to withdraw his of in request permission the event the registration were be imposed.
Defendant filed a notice of in timely appeal propria persona, citing arrest, grounds numerous to his pertaining initial detention and and again failing challenge the registration requirement imposed sentencing.5 Six months after his notice of filing defendant filed in the appeal, Court of added, an Appeal “Application to Amend Notice of which as a Appeal” basis the trial court’s appeal, imposition of sex registration notice, In that, requirement. amended asserted had he been advised of he not requirement, would have entered his plea The Court of guilty. Appeal, to amend the granting application notice of 41(c) cited rule appeal, (“. the California Rules of Court . . Failure adverse to serve and file written . . party . opposition may motion.”). deemed a consent to the granting briefing [the] Court of defendant contended Appeal, that the should be reversed judgment because the trial court failed to advise him change hearing at the as a sex offender was a direct consequence guilty plea. argued the trial court’s error response was harmless.
Characterizing trial court’s error as a “violation of a bargain,” Court our decision in Appeal distinguished People Walker appeal, permitted 5At the filing time filed his section notice of 1237.5 appeal following provided guilty, part that the defendant filed as notice of constitutional, appeal showing jurisdictional, grounds a written statement “reasonable other or *7 1988, 851, 1, (Stats. 2763-2764.) going legality to proceedings. the . . .” ch. § grounds upon Defendant included in his notice of which he appeal initial a statement relying. then When the court defendant to file an appellate granted permission was thereafter appeal, permission amended it him to file an 1237.5 granted notice also amended section statement, which set forth the misadvisement claim. 374 902, 861], holding 1013 P.2d that because
Cal.3d 819 [1 not lend itself to a of substantial remedy does as fashioned with to the restitu- regard was challenged specific performance 'Walker, tion in the defendant in the case must be present given fine to withdraw The Court therefore remanded opportunity plea. Appeal to to the court to allow defendant reaffirm the agreement, case trial or, to the sex offender including registration requirement, alternatively, court, withdraw his The review in this that the plea. sought urging People court remedy was to remand the matter to trial proper purpose reopening plea negotiations.
II. Discussion 342, we are in in asked case As page in if be afforded view of the trial determine what should remedy, any, with and accurate advice failure to the defendant court’s provide complete prior accepting direct concerning consequences plea, plea. error a to advise him
Defendant characterizes the court’s as failure (See (1973) In re 314 the direct Birch Cal.3d plea. consequences 212, where trial failed 515 P.2d vacated Cal.Rptr. [judgment [110 12] sex an defendant of the offender registration require- advise unrepresented charge ment the defendant’s plea accepting that, also be- conduct].) Defendant contends lewd or dissolute committing offender registration requirement the trial court’s the sex cause in was not included the parties’ plea amounts to lifetime punishment entitling it violation of that agreement, constitutes a agreement, 1192.5; Cal.3d (See withdraw his plea. People § benefits such specified entered in exchange is guilty plea [“When state, , must . . parties, including dismissal of other counts . both not may significantly The the terms of agreement. punishment abide by (1983) 33 also In re Reed see that which the parties agreed upon.”]; exceed P.2d 216] [sex 920-922 [191 nature].)6 is punitive relief, but contend to obtain entitled concede People the constitu- ignore would withdraw his plea improperly him to allowing that, I, Const., (a)) and art. subd. (Cal. the victim § tional interests of 1217, 1224], with approval cited Ariz. 1711 P.2d 6Compare v. Noble State (Arizona 955] Cal.Rptr.2d, 4 Cal.4th v. McVickers post facto on ex not ban offenders did violate registration of sex requiring statute “ child sex offend location of ‘facilitating the was legislation overriding purpose because its punishment"). unrelated to purpose personnel,’ enforcement ers law
375
interests,
view of these
of
notions
fairness and
balancing
interests
demand that the
be afforded an
opportunity
help
remedy
shape
Thus,
in this case.
remand
People urge
this case
the trial court
it,
enable
after additional
briefing
“to determine whether
argument,
withdrawal of the
or
plea, renegotiation, specific performance,
voluntary
of the
(with
acceptance
addition of the
plea by
registration
would
requirement),
most appropriate remedy.”
below,
As
we
explained
reject
remedy
each
proposed by
party
inconsistent with our
in Moser.
analysis
unlike
Although,
case reaches
onus
direct
rather than on habeas
appeal
corpus,
involves
failure to advise of
requirement rather than
advice
erroneous
concerning the
of the
length
term of
both
applicable
cases involve
parole,
who,
sentence,
defendants
following
are
set
attempting
aside a consummated plea agreement, based
a trial court’s error in
the defendant of
advising
certain
consequences
In view of
guilty.
our
in Moser
similarity,
analysis
is instructive.
contentions,
“In
analyzing
parties’
adhere to the framework set
1013, 1019-1020,
forth
our decision in People v.
54
Cal.3d
where we
that resolution of
explained
the issues
consid
presented ‘requires
eration of two related but
(See
distinct legal principles.
People v. Glennon
(1990)
101,
225
1].)
104
Cal.App.3d
The first
Cal.Rptr.
[276
[¶]
concerns the
principle
necessary advisements whenever a defendant pleads
whether or not
guilty,
the guilty
is
part
bargain.
defendant must be
admonished
and waive his constitutional rights.
(Boykin
(1969)
v. Alabama
1709];
Thus, we first consider whether the trial court’s failure to advise defendant the sex offender regarding constituted a violation of *9 376 him of of court’s to inform the direct obligation consequences so, and, if such a entitles him to he now whether violation the relief
guilty, Thereafter, of we consider the whether separate imposition seeks. question constituted a violation of the the sex offender registration requirement agreement. parties’ plea
A. Advisement consequences of of whether failure defend
Our initial the trial court’s to advise inquiry, ant of the sex offender violated its registration obligation requirement him of is answered. to inform the direct consequences plea, easily (1975)
In 13 Superior Bunnell v. Cal.3d 592 Court [119 302, 1086], we con 531 P.2d cited the Cal.Rptr. registration requirement an of which example plea consequences tained section as 290 {Bunnell, must 605 all guilty plea defendant be informed. supra, p. [“In defendant advised of the direct conse and submission cases the shall be as the of punishment of conviction such permissible range provided quences statute, .”]; see ...)... if 290 registration requirements, any (e.g., § Birch, 314, consti re 10 Cal.3d [registration also In 322 supra, in the and plea; tutes a direct of “grave consequence defendant’s] [the advice with the of for such rested responsibility absence counsel the has occurred court”].)7 We therefore conclude that Bunnell error that, to advise a as of where the trial court fails defendant consequence 290, of one of the offenses enumerated section or her any as a sex offender.8 defendant must register error, it entitles we next must determine whether found such Having that, in view of the now seeks. Defendant claims to the relief he of enumerated assure convicted the crimes persons of section is “to purpose 7The 290 Legislature times police surveillance at all because readily shall be available therein (Barrows Municipal in the future.” v. Court likely similar offenses deemed them to commit Reed, 821, 819, 483]; supra, 33 see also re (1970) Cal.Rptr. In 1 Cal.3d 825-826 [83 807]; 914, 919; (1972) Cal.Rptr. P.2d In re 497 Smith Cal.3d 441]; People v. Monroe Cal.Rptr. DeBeque Cal.App.3d re (2d. 51]; Law Epstein, & Criminal 3 Witkin Cal. Cal.App.3d 1210 [215 1678-1681.) Crime, 1416-1417, “imposes a 1989) The statute pp. §§ Punishment for ed. releasing the a court order re-registration absent lifelong requirement of or the under section 1203.4 ... and disabilities his conviction penalties from the registrant (Barrows Municipal seq.” et under 4852.01 a certificate rehabilitation section issuance omitted.) Court, citation fns. registration requirement mandate provisions statutory 8Certain other Code, (See, & Saf. 11590-11595 e.g., §§ offenses. Health specified persons convicted registra offenders].) permits Additionally, section 457.1 [registration of controlled-substance (See specified circumstances. attempted arson or under convicted of arson persons tion of Crime, 1416- Law, §§ Punishment for Cal. Criminal Epstein, Witkin & generally, 3 consequences the direct 1678-1682.) duty court’s A trial advise a the sex well as to statutory requirements, applies to these other guilty plea (See, e.g., v. Cotton case. at issue registration requirement omission, trial court’s he is entitled to withdraw his For the guilty. follow, reasons that defendant’s contention. reject *10 Walker, 1013, In v. held that a People supra, timely we absent objection, a defendant waives a claim of error to a as trial court’s misad “ visement the concerning of ‘The consequences plea. guilty pur of of pose the doctrine waiver general is to a defendant to encourage bring court, errors to the of attention the trial they so corrected or may case, avoided and a trial fair had. In the record reflects that ...[¶] defense counsel was familiar the with the probation Had recommen report. dation that defendants be ordered to a restitution fine come as a pay genuine it would have been a surprise, matter to the simple issue to the bring ” (Id., attention of the trial court.’ at v. Melton p. quoting People (1990) 218 640].) Cal.App.3d Cal.Rptr. [267 to the Applied Walker determination that supports defendant waived his claim of error at the by failing to sentencing hearing interpose to the timely objection Defendant’s registration requirement. counsel was aware of the officer’s filed 11 to the probation report, days prior sentencing that defendant hearing, recommending be ordered to aas sex offender. In the context her objections at the to sentencing hearing other matters contained in the probation report, officer’s defense counsel could readily have the (See, challenged registration recommendation. e.g., Walker, People v. supra, 54 Cal.3d at error p. any possible, [“whenever taking plea should be to brought the attention the court at sentenc so it can be ing addressed see also Victorian expeditiously”]; People v. (1992) 2 Cal.App.4th reversed [judgment 460] where, to sentencing, moved to withdraw his unsuccessfully based the trial court’s misadvisement as the maximum Moreover, term].) length parole when the trial court formally imposed later requirement the defense had sentencing hearing, a second it opportunity to but failed to so. do Under these challenge circumstances, we conclude defendant waived claim of any prejudice arising (Cf. Moser, from the trial court’s error. at fn. 8 p. [no waiver where trial court’s of sentence was not at variance with its imposition erroneous advice at earlier in the record proceeding, nothing suggested that defendant error].) should have been aware of court’s contends, however, Walker,
Defendant that under Cal.3d his failure at sentencing hearing object imposition should not as a waiver of registration requirement the misad- operate court, visement error because the trial at failed to change plea hearing, Cal.App.3d must advise defend- 1083-1085 757] [trial ant applicable].) whenever controlled-substance him, 1192.5, to section withdraw his right advise pursuant he to a more severe that contem- the event was sentenced than punishment however, that a trial explained plated by plea agreement. failure to a section admonition permits court’s 1192.5 provide the absence of an violation the plea agreement despite asserted complain 1024-1026.) (54 We Cal.3d sentencing hearing. at the any objection the trial failure to the section 1192.5 suggest give did not court’s would the defendant from objecting advisement excuse to which he was not a direct consequence simply plea, (54 1023.) at the advised trial court plea proceedings. *11 Furthermore, was record before us fails to establish that defendant the him of the the trial court’s failure to advise by registration prejudiced notice of contains an defendant’s amended appeal requirement. Although that, omission, not but for court’s he would assertion defendant the trial by of is not have assertion extrajudicial proper component pleaded guilty, the the trial the record on Because record of court proceedings appeal. (nor assertion) no an the concerning bearing contains evidence even to the plead guilty, pros- defendant’s decision requirement upon registration the made by never had an to contest assertion ecution has opportunity the on the trial had no occasion to pass upon defendant and court appeal, Indeed, court to the extent the trial of defendant’s claim. veracity us, to defendant’s failure object the issue before any record sheds light upon he did not consider the registration the hearing suggests at sentencing in the agreement. context significant plea requirement Moser, ante, (even at defendant we reiterated in supra, page As “[A] misadvise a trial court’s entitled to relief based upon on direct appeal) she was by if the establishes that he or prejudiced ment only misadvisement, i.e., of not have entered that the defendant would (Ibid., v. citing People had the trial court advisement.” given proper 1022-1023; McMillion see also v. at pp. 821]; People Wagoner (1992) 2 1370 Cal.Rptr.2d Cal.App.4th 639].) defend Although 611-612 89 Cal.App.3d advised, entered his he would not have been that had he ant alleges properly in on to appeal support the record nothing of there is guilty, of to his burden Thus, failed meet conclude defendant has we contention. establishing prejudice. plea agreement Violation
B. relief, based to he is entitled to Defendant’s failure establish him of advise hearing of plea trial failure at the change court’s the sex offender does not end our requirement, As inquiry. must whether trial explained also determine court’s error constitutes violation of the parties’ defendant to plea agreement, entitling (Moser, 351.)9 some form relief. The relevant principles such (ante, an are set underlying importance inquiry forth Moser 353-354) and need not be repeated here. above, As explained defendant’s accepting guilty, court recited the record the fully terms of the parties’ plea agreement, that defendant agreed had observing plead charge assault with intent commit and admit the enhancement allegations, exchange agreement dismissal of People’s the attempted rape, and enhancements, and burglary, battery charges corresponding 2, ante, a maximum state term prison (See of 13 years. fn. text). counsel, When the trial accompanying of defense and of inquired whether each them personally, understood the agreement court, to embrace the terms identified each by responded affirmatively. The statutory of sex offender was not mentioned by or parties the court at the change plea hearing. *12 Moser, ante,
Unlike the in petitioner (see 357), supra p. defendant does not suggest that the element of challenged his sentence was a of subject (or negotiation discussion) even during plea-negotiation or process, the prosecutor made or any inducements relevant to promises the challenged (Cf. element. Santobello v. New York 404 U.S. 262 L.Ed.2d 427, 433, S.Ct. 92 a rests in plea 495] any significant degree [“[W]hen a or of promise agreement the prosecutor, so that it can said be to be of part consideration, the inducement or fulfilled.”].) Thus, such promise must be omission, we conclude that the trial court’s at the of change plea hearing, advice regarding defendant’s to statutory obligation as a sex of- register fender did not transform the court’s error a term the into parties’ plea agreement. Walker,
Our decision in People v. 54 Cal.3d is supra, not helpful Moser, defendant’s ante, As we argument. (see in explained supra Walker, “In 356-357): the offense to which the defendant had agreed plead carried $10,000 fine, a sentence and a potential seven-year punitive but under the negotiated agreement the defendant was to receive a term of five-year and no At the imprisonment fine. punitive subsequent 4, (see 9Because the trial court failed requirements to follow the of section 1192.5 fn. text), accompanying registration defendant’s claim that offender sex parties’ agreement violated the terms of the interpose his failure is not waived Walker, (See People supra, timely objection. 1024-1026.) v. at pp. 54 Cal.3d 380 sen the trial
sentencing hearing, five-year imposed agreed-upon ($5,000) also a fine. concluding tence but substantial restitution [¶] substantial fine constituted a violation of the such a in that the defendant in that case found agreement implicitly could have understood reasonably negotiated plea agreement signify Moreover, no substantial fine would be reaching imposed. conclusion, that, of an restitu we reasoned because the amount appropriate fine a defendant could vary significantly depending upon tion imposed upon facts ‘the restitution fine given generally should specific Walker, supra, v. 54 Cal.3d at (People considered plea negotiations.’ 1024.)” contrast, the sex offender requirement challenged
By is, term in case like the mandated element parole statutorily 290, 290.1; (§§ offense. see also Barrows underlying of punishment Court, 290 automat- Municipal v. at p. “applies [section offenses”]; when a is convicted of one of the enumerated person ically v. Saunders People Cal.App.3d 212] with one is of assault intent to commit rape, [where Monroe, statute”]; “under the language required plain “leaves no in the trial discretion Cal.App.3d [section if to not one or more the listed violations require registration judge Thus, fine, occurs”].) regis- unlike the amount of a restitution sex offender neither the negotiation; tration is not a permissible subject agreement nor the court has the alter the sentencing authority legislative prosecution with intent commit shall mandate that convicted assault person in section as a sex to the set forth 290. provisions pursuant not defendant’s claim. Walker does Accordingly, support *13 of Justice dissenting reached contrary The conclusion by opinion sex its characterization of the is based inaccurate entirely Mosk the [plea] as added “after a registration requirement punishment Mosk, J., 382.) Because the (Dis. post, was struck.” opn. bargain convicted mandated for statutorily requirement every person registration an inherent was requirement with intent to commit rape, of assault and was not to to that offense plead guilty of defendant’s decision incident does not suggest was reached. record “after” the plea agreement added defendant; or suggestion no promise misled or deceived that the prosecution not be would mandatory registration requirement was made that the ever imposed. above, court, of the advising have
As we explained him of the have informed should guilty plea, direct consequences
381 omission, In view of the trial registration requirement. court’s would have been to entitled relief had he to interposed timely objection of the imposition registration and had he requirement, demonstrated he would not have in the event he had been pleaded guilty advised properly with regard As is consequence. made clear the United States Court’s decision in Supreme (1979) United States v. Timmreck 441 U.S. 634, 638-639, 784 L.Ed.2d (discussed 99 S.Ct. [60 in our companion 2085] however, decision in 354-355), circumstance that mandated statutorily is not consequence embodied specif- within the terms of a ically plea agreement does not signify imposition of such a consequence constitutes violation of the agreement. Accordingly, with disagree Justice Mosk’s assertion that defendant’s right due process law has been abridged.
III. Conclusion that, We conclude the trial court although erred in to advise failing defendant that his charge assault with intent commit would offender, result having to a sex relief, defendant is not entitled to because he failed sentencing hearing of the object imposition the record requirement, on appeal does not establish misadvisement, to defendant prejudice from the resulting does not constitute a violation of the terms of the plea agreement. we reverse the Accordingly, judgment the Court of and direct that Appeal court to affirm the judgment court. superior
Lucas, J., Panelli, J., Arabian, J., Baxter, J., C. concurred. MOSK, J., Dissenting. It isa violation of due state to process impose punishment a defendant in a beyond specified negotiated (Santobello disposition. (1972) v. New York U.S. L.Ed.2d [30 427, 433, (hereafter Santobello)-, 92 S.Ct. People 495] Walker (hereafter Walker)-, P.2d 861] v. Mancheno 211].)
While not any deviation from the terms of the is a violation of agreement (Walker, due 1024), process a supra, Cal.3d variance that is “in the significant context of the a bargain as whole” not may be added Thus, without violating (Ibid.) the defendant’s rights. a example, punish ment that is in the insignificant context the whole a agreement, such as standard condition of probation, may “whether or not was imposed it part $5,000 (Ibid.) But the negotiations.” restitu express imposition fine,
tion a term never mentioned in the entitles negotiations, defendant to it is a from significant relief because variation the negotiated disposition. (Id., 1026.) at p. doubt that was entitled to relief appellate never
Any apparently occurred to other than the this court. Even the anyone majority Attorney relief, taken the defendant is General has that entitled position declaring: a “Petitioner that is entitled to remedy agrees appellant constitutionally with the unanimous view of the Court of I agree Appeal, Attorney General, the defendant in this case that the addition of term not is, that defendant mentioned the plea agreement, requirement life, as a sex offender for the rest variation significant in this defendant is from the a whole and that entitled bargain significant negotiated relief from addition of this term to some disposition. find that is entitled to no relief. this court majority
Only is a signif- not that a sex offender dispute do They Rather, in the negotiated not contained disposition. icant term punishment was not a subject the registration requirement maintain because they it is not the face of the not a bargain, and does bargaining appear was struck. (Maj. due it after bargain opn., violation of process impose Thus, 379-380.) that unless conclude at pp. they appear ex that term be added may excludes a term of post punishment, expressly facto. Walker, 1013, in which supra, is inconsistent with
Such a rule from the of a statutorily defendant entitled to relief we found or, the plea agreement fine that was not mentioned in mandated restitution with the basic rule of It is also inconsistent during negotiations. apparently, Santobello, due 404 U.S. be honored. sentence bargains process requires up a contract. The defendant gives is essentially A sentence bargain in return for a reduction exposure trial and right potential acquittal of defend maximum while the up punishment prosecution gives punishment, Most courts more certain disposition. for a quicker, cheaper, ant in return principles. contract under fundamental terms of plea agreement interpret (1993) Cal.App.4th v. Armendariz eople (P 1214, 1217 Ames 311]; Cal.App.3d,
383 1034, 911]; (1989) People v. Haney 207 Cal.App.3d Cal.Rptr. 1037 [255 276]; 274, (1986) Leo v. Superior Court 179 283 Cal.App.3d Cal.Rptr. [225 629, 15]; (1982) 167]; v. Alvarez People 127 633 Cal.App.3d [198 602, 606; (9th 1992) see also U.S. v. Anderson Cir. F.2d Hayes 970 U.S. v. 230, (3d 233; 1991) Cir. (6th 1991) 946 F.2d v.U.S. Herrera Cir. F.2d 928 769, 771; 1391, 1393; (9th 1990) Keller U.S. v. Cir. 902 F.2d Plaster v. 340, (4th 1983) 352; United States Cir. (5th 1980) 720 F.2d In re Geisser Cir. 745, 749; (D.C. 627 1975) F.2d United v. Bridgeman States Cir. F.2d 1099, Stuntz, 150]; 1109-1110 Scott & App.D.C. Plea as Bargaining 1909; Westin, Contract 101 Yale L.J. Westen A & Law Constitutional Remedies Broken Plea (1978) 66 Bargains Cal.L.Rev. 528 et seq.; of cf. for v. Moriera 782]; Cal.App.4th United States (10th 1981) v. Calabrese 1390.) Cir. 645 F.2d The rule espoused by inconsistent majority with basic contract It is that a mutual principles. contract cannot be elementary modified (1 Witkin, unilaterally. (9th Contracts, Summary 1987) of Cal. Law ed. 814.) § To additional on p. impose punishment was not for in provided the plea runs afoul agreement of this fundamental rule. The suggest that because majority the registration was statu- mandated, and torily thus not proper subject for it can be added bargaining, after a punishment negotiated at disposition. (Maj. opn., defendant’s 380.) Walker, p. They distinguish ground there, the amount of the restitution fine was a proper subject bargaining. however, to the Contrary suggestion we majority, did not relief grant Walker, supra, 54 Cal.3d because the restitution fine was a proper record, subject negotiation—as far from the appeared there was no negotiation Rather, on that point supra, 54 Cal.3d 1013. granted relief because the negotiated plea omitted all reference restitution fine.
The state not may new term of impose significant that was punishment not part negotiated disposition because the omission of that simply term be might inconsistent with statutory requirements. prosecution, state, not representing its and still may escape voluntary promise get benefit the guilty plea simply because its have been ultra promise may (U.S. Anderson, 607; vires. (2d supra, 970 F.2d Palermo v. Warden 1976) 286, 296; Westin, Cir. see F.2d also Westen & A Constitutional Law Remedies Plea Broken Bargains, supra, Cal.L.Rev. 531-524, 218, 219.) fns. statute that a Although may certain require punishment defendant who has on other imposed, terms pleaded guilty that do not include is entitled “A punishment to some relief: required *16 induced an unfulfillable is no less than by promise subject challenge
one induced valid which the Government fails to by promise simply 317, 320; (United (7th 1982) fulfill.” States v. Cook Cir. 668 F.2d see also Anderson, 607, accord.) v. F.2d at supra, U.S. p.
Even if the in the agreement case could somehow be viewed present on the whether the sex ambiguous question registration requirement would be courts imposed, this context normally interpret any ambiguity “Both constitutional and against government. concerns re supervisory to a quire holding Government than the greater degree responsibility (or than would be either of the to commercial possibly parties contracts) for or (United imprecisions ambiguities plea agreements.” 294, 300; Herrera, (4th 1986) Harvey States v. Cir. F.2d see also U.S. v. 772; (7th 1978) F.2d at supra, 928 United States v. Bowler Cir. 585 F.2d p. 851, 854; Warden, 295; Palermo v. 545 F.2d at United States v. p. (3d 26; 1976) (1st Cir. Crucsco 536 F.2d Correale v. United States Cir. 1973) 947.) 479 F.2d The must bear government “ordinarily responsi Anderson, (U.S. 607.) for lack of v. any supra, 970 F.2d at bility clarity.” p. In the case of in a the central for any ambiguity plea agreement, question is what court understood to be the terms reviewing parties reasonably Anderson, 607; (U.S. F.2d at U.S. v. agreement. (9th 1988) 1011.) Packwood 848 F.2d This court has declared Cir. would understand that the sentence parties reasonably bargained to a would be the maximum negotiated pursuant disposition punishment which defendant would be v. Flores subject. (People 406].) P.2d It is reasonable to conclude the 308-309 in the case understood that the maximum parties punishment which defendant would be was 13 The addition subject years prison. the sex is inconsistent with this understanding. registration requirement relief concede that “defendant would have been entitled to majority 380-381.) In had he objection.” (Maj. interposed timely opn., short, failure the issue contend that because of counsel’s to raise majority will be for the rest of his the defendant sentencing, subject punishment life. No court should that result. callously compel
When that memorialized beyond the state unilaterally imposes punishment defendant be some in the due requires granted plea bargain, process relief, followed a trial or specific whether it be withdrawal of relief in The defendant is entitled to such of the plea agreement. performance reason has so conceded. There is no rational this case. The General Attorney refuse relief. should why obdurately
KENNARD, J., Dissenting. I join opinion of Justice Mosk dissenting in all but one. Justice Mosk respects concludes that defendant entitled to withdraw his or to performance specific terms negotiated Mosk, J., (Dis. 384.) plea bargain. I opn. cannot p. agree.
Specific performance plea bargain negotiated this case would allow defendant after a conviction for assault with intent to commit avoid as a sex under Penal Code section Because 290. section 290 makes as a sex offender mandatory for person convicted of assault with intent I would hold that the rape, only remedy available for defendant (See is withdrawal of the In re guilty plea. ante, 342, (dis. opn. 723] Kennard, J.).)
Appellant’s Mosk, was petition denied rehearing January 1994. J., Kennard, J., were of the opinion granted. should be petition