THE PEOPLE, Plaintiff and Respondent, v. RICHARD JUDE SMITH, Defendant and Appellant.
No. A139403
First Dist., Div. One.
June 30, 2014
717
Higbee & Associates and Mathew K. Higbee for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.
DONDERO, Acting P. J.—
INTRODUCTION
Defendant appeals from a postjudgment order of the Sonoma County Superior Court refusing to dismiss defendant‘s four convictions for various sex offenses following his successful completion of probation. (
PROCEDURAL HISTORY
I. The Charges
In 1995, defendant Richard Jude Smith was charged by complaint with 14 sex offenses: three counts of lewd and lascivious acts upon a child of 14 or 15 by a person at least 10 years older (
Pursuant to a negotiated disposition between defendant and the district attorney, defendant pleaded no contest to four counts of the complaint: (1) count three, a lewd act upon a child over the age of 14 by a person at least 10 years older (
III. The Indicated Sentence
In response to the court‘s inquiry whether that was defense counsel‘s understanding, defendant‘s attorney stated: “I‘ve told my client, Mr. Smith, that the Court has made an indicated sentence which would include a grant of probation up to one year in the County Jail, sentence suspended; that even though it is not a commitment under 1192.5, it‘s a three-way contract between yourself [(the court)] and the District Attorney and myself, or representing him, that is an indicated sentence. Unless there was evidence that was in addition to what‘s already been disclosed to the Court, that he would, in fact... be given probation.” The maximum state prison sentence for those four convictions was six years.
The court confirmed defense counsel‘s statement, adding: “I state that based on what I know of the case and, also, earlier indications of [the prosecutor] as to the... degree or amount of severity on the case, I recall he made a certain indication to me, which I considered as well.”
During the district attorney‘s voir dire prior to defendant‘s pleas, defendant was asked if he understood (1) the person who would decide his ultimate sentence was the judge; (2) the judge had not yet made a final decision as to his ultimate sentence; (3) the judge would not make a final decision as to his ultimate sentence until he had read and considered the probation report and any documents supplied to the judge by the district attorney‘s office or his attorney; (4) the People made absolutely no promises or representations, agreements or contracts with defendant regarding his ultimate sentence; (5)
IV. The Sentencing Hearing
On July 13, 1995, defendant was sentenced to state prison for three years; however, execution of that sentence was suspended, and defendant was placed on formal probation for 48 months with various terms and conditions. The remaining charges in the complaint were dismissed as promised.
V. Postsentence Events
Defendant‘s probationary term expired successfully on July 13, 1999.
In February 2013, defendant brought a motion to dismiss pre-1997 sex offenses under section 1203.4. The People opposed the motion. Following a hearing on May 2, 2013, the motion was denied. A motion to reconsider the court‘s ruling was also denied June 26, 2013. A timely appeal from the denial of the motion to reconsider was taken.
DISCUSSION
Defendant was convicted of violating four statutes—sections 288, subdivision (c), 288a, subdivision (b)(2), 289, subdivision (i), and 261.5, subdivision (d). Following his successful completion of probation, he sought dismissal of all four convictions under section 1203.4. That statute provides, as relevant here, that in any case “in which a defendant has fulfilled the conditions of probation for the entire period of probation,” at any time after probation has terminated, the defendant “shall” be permitted by the court to withdraw his plea of guilty or no contest and enter a plea of not guilty, whereupon the court “shall” dismiss the accusations or information against the defendant, “except as noted below.”2 (
A. The Trial Court Erroneously Denied the Motion as to Defendant‘s Convictions for Violation of Sections 288a, subdivision (b)(2) and 289, subdivision (i).
“[A] defendant moving under Penal Code section 1203.4 is entitled as a matter of right to its benefits upon a showing that he ‘has fulfilled the conditions of probation for the entire period of probation.’ It was apparently intended that when a defendant has satisfied the terms of probation, the trial court should have no discretion but to carry out its part of the bargain with the defendant. [Citation.] ‘The expunging of the record of conviction is, in
The Attorney General argues defendant is not entitled to have his convictions in count four (
We begin our analysis by observing that trial counsel‘s memorandum of points and authorities on defendant‘s behalf is no model of clarity or advocacy. It asserts incorrectly that defendant‘s “conviction for California Penal Code section[s] 261.5(D), 288 (C), 288A(B)(2), and 289(I) occurred on July 13, 1995... [and] pre-dates the 1997 statutory amendment to section 1203.4, which excluded violation of certain sex offenses, including Mr. Smith‘s violation of sections 261.5(D), 288(C), 288A(B)(2), and 289(I).” In fact, the 1997 amendment did no such thing. The 1997 amendment excluded from the protection of section 1203.4 only those sex offenses that violated section 286, subdivision (c) (sodomy of a victim under age 14 or by force, fear, or retaliatory threat), section 288 (lewd acts upon a victim under age 14, or age 14 or 15, by a person at least 10 years older), section 288a, subdivision (c) (oral copulation of a victim under age 14 or by force, fear, or retaliatory threat), section 288.5 (continuous sexual abuse of a victim under age 14), and section 289, subdivision (j) (sexual penetration of a victim under age 14). (
B. We Decline to Consider Defendant‘s Constitutional Vested Rights Theory for Relief from His Conviction for Violating Section 261.5, Subdivision (d) Because It Was Not Presented to the Trial Court.
Defendant argues he also should have been granted relief as to his conviction in count 13 for a felony violation of section 261.5, subdivision (d) because he had fulfilled all the conditions of his probation, and his probationary period had terminated, well before section 1203.4 was amended in 2000 to preclude dismissal of convictions for such violation. He argues the 2000 amendment is not retroactive on its face, has not been judicially construed to apply retroactively, and cannot be constitutionally applied retroactively to him because to do so would impair a substantive vested right. (
Initially, the Attorney General did not challenge defendant‘s argument on the merits. Instead, she argued defendant did not demand specific relief as to his conviction for a felony violation of section 261.5, subdivision (d), and never alerted the trial court to his alternative constitutional argument. We asked the parties to submit supplemental briefs on the merits of defendant‘s vested rights theory. After further consideration, we are constrained to agree with the Attorney General nothing in the motion, memoranda of points and authorities, or oral arguments below apprised the trial court of defendant‘s reliance on the constitutional vested right theory he raises here. It is true defendant‘s two memoranda of points and authorities discussed Arata; however, the vested rights theory was only obliquely mentioned in that opinion. (People v. Arata, supra, 151 Cal.App.4th 778, 783.) Clairvoyance is not required of our trial courts.
In response, defendant argues we may consider a new theory presented for the first time on appeal if it presents a question of law arising from undisputed facts. (People v. Butler (1980) 105 Cal.App.3d 585, 588 [164 Cal.Rptr. 475]; Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 154 [25 Cal.Rptr.3d 195].) While this is true, we decline to do so here. Defendant‘s vested rights argument is multilayered, requiring consideration of legislative intent and the constitutional and public policy ramifications of applying the 2000 amendment to new petitions seeking dismissal of convictions suffered before 2000, which the trial court never had the opportunity to consider, and on which we express no opinion. Defendant may renew his vested rights argument in the trial court, to which we must in any event remand the matter with respect to counts four and nine.
C. The Trial Court Correctly Denied Relief as to Defendant‘s Conviction for Violating Section 288.
As noted above, defendant was still on probation and had not yet fulfilled all requirements of section 1203.4 when section 1203.4 was amended in 1997
At the time defendant‘s motion was pending in the trial court, our Supreme Court had not yet decided the question presented to it by the Ninth Circuit Court of Appeals in Doe v. Harris, supra, 57 Cal.4th 64: ” ‘Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?’ ” (Id. at p. 66.) Our Supreme Court answered: “[T]he general rule in California is that the plea agreement will be ’ “deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .“’ [Citation.] That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.” (Ibid.)
The court also considered the related question “whether, despite the general rule, the facts and circumstances of a particular plea agreement might give rise to an implicit promise that the defendant will be unaffected by a change in the law.” (Doe v. Harris, supra, 57 Cal.4th at p. 71.) The court allowed, “it is not impossible the parties to a particular plea bargain might affirmatively agree or implicitly understand the consequences of a plea will remain fixed despite amendments to the relevant law.” (Ibid.) Nevertheless, the court concluded, “prosecutorial and judicial silence on the possibility the Legislature might amend a statutory consequence of a conviction should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to the amended law.” (Ibid.)
The court in Doe v. Harris, supra, 57 Cal.4th 64 (Doe) examined Acuna and Arata in light of these principles. In Acuna, the defendant pleaded guilty to a violation of section 288 and was sentenced to probation. (Acuna, supra, 77 Cal.App.4th at p. 1058.) Before the defendant successfully completed his probation, the Legislature amended section 1203.4 to make
Like the defendant in Acuna, the defendant in Arata pleaded guilty to a violation of section 288 with the understanding he would receive probation. (Arata, supra, 151 Cal.App.4th at p. 781.) He successfully completed probation and subsequently sought expungement of his conviction on the basis of section 1203.4 as it existed at the time of his plea, arguing that denial of relief would violate his plea bargain. (Arata, at pp. 781–782; Doe, supra, 57 Cal.4th at pp. 72–73.)3 The appellate court granted Arata‘s request for relief. Recognizing plea bargains may contain implied terms, the Arata court reasoned: “Section 1203.4 relief is part of the bargain made with a probationer. [Citation.] By agreeing to give defendant probation, the plea bargain implicitly included the promise of section 1203.4 relief as part of probation.” (Arata, at p. 787; see Doe, at p. 73.)
The Doe court observed: “After considering the circumstances present there, the [Arata] court reasoned that the parties understood that the defendant‘s decision to plead guilty was motivated by a specific statutory benefit available only to persons sentenced to probation, and thus had implicitly agreed the defendant would receive that benefit. [Citation.]” (Doe, supra, 57 Cal.4th at p. 73.) The court declined to “review the merits of the [Arata] court‘s reasoning” because the statute under review in Doe, section 290, did not distinguish between probationers and nonprobationers and thus could not have induced Doe‘s plea. (57 Cal.4th at p. 73.) Summing up, the court concluded: “[T]he rule in California is that a plea agreement‘s reference to a statutory consequence attending a conviction, even when coupled with prosecutorial and judicial silence on the possibility the Legislature might amend the statute, does not give rise to an implied promise that the defendant, by pleading guilty or nolo contendere, will be unaffected by a change in the law.” (Ibid.)
The process of plea negotiation ” ‘contemplates an agreement negotiated by the People and the defendant and approved by the court.’ ” (People v. Segura (2008) 44 Cal.4th 921, 930–931 [80 Cal.Rptr.3d 715, 188 P.3d 649].) In the case before us, the record is abundantly clear a grant of probation was not part of the prosecutor‘s bargain with defendant. It was an indicated sentence by the court. An indicated sentence is not a plea bargain, or a contract between the defendant and the court, or a “promise that the sentence will be imposed. Rather, the court has merely disclosed to the parties at an early stage—and to the extent possible—what the court views, on the record then available, as the appropriate sentence so that each party may make an informed decision.” (People v. Clancey (2013) 56 Cal.4th 562, 575 [155 Cal.Rptr.3d 485, 299 P.3d 131].) An indicated sentence falls “within the boundaries of the court‘s inherent sentencing powers and, in contrast to plea bargains, prosecutorial consent is not required.” (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271 [1 Cal.Rptr.2d 333].) An indicated sentence may be withdrawn, if new facts brought out at the sentencing hearing show that the indicated sentence is not appropriate (id. at p. 1269), and the prosecutor retains the “inherent right to challenge the factual predicate and to argue that the court‘s intended sentence is wrong” (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276 [130 Cal.Rptr. 548]).
Here, all of these attributes of an indicated sentence were brought to defendant‘s attention during the plea hearing, and he stated he understood them. Section 1203.4 was not mentioned. No mention was made about the possible effects of any future legislative amendments. The record leaves no doubt the indicated sentence of probation, along with the dismissal of nine counts, the concomitant reduction of the potential maximum sentence, and the immediate avoidance of state prison, provided defendant a strong incentive to plead no contest. But that is not enough to transform an indicated sentence of probation into a plea bargain for probation, of which 1203.4 relief was an implied term. We conclude application of amended section 1203.4 to defendant did not violate the terms of his plea bargain.
In our view, the contract envisioned by Chandler and Johnson must be subject to the same rules as those that govern plea bargains and other contracts, as stated in Doe. In other words, in the absence of constitutional constraints, the contract to which a grant of probation gives rise must be ” ’ “deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.” ’ ” (Doe, supra, 57 Cal.4th at p. 66, quoting People v. Gipson (2004) 117 Cal.App.4th 1065, 1070 [12 Cal.Rptr.3d 478].) We conclude, in the absence of constitutional constraints, a probationer‘s entitlement to relief under section 1203.4 is not frozen at the time of the probationary grant but is subject to subsequent legislative amendments to the statute.
The superior court‘s order is reversed as to counts four and nine, and the matter is remanded to the trial court for further proceedings in compliance with section 1203.4. In all other respects, the order is affirmed.
Banke, J., and Becton, J.,* concurred.
*Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.