Jermaine B., In re

Page 734

81 Cal.Rptr.2d 734

69 Cal.App.4th 634, 99 Cal. Daily Op. Serv. 800,

99 Daily Journal D.A.R. 933

In re JERMAINE B., a Person Coming Under the Juvenile Court Law People of the State of California, Plaintiff and Respondent, v. Jermaine B., Defendant and Appellant.

No. B117079.

Court of Appeal, Second District, Division 5, California.

Jan. 27, 1999.

Review Denied April 21, 1999.

[69 Cal.App.4th 637] Joseph T. Tavano, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Sunnie S. Lee, Deputy Attorney General, for Plaintiff and Respondent.

GRIGNON, J.

Appellant, a minor, was prosecuted as an adult after giving a false name and date of birth. Appellant entered into a negotiated disposition pursuant to which he pleaded no contest to a lesser offense in return for a probationary sentence. Subsequent to his conviction, the prosecution determined appellant was in fact a minor and the matter was certified to the juvenile court. The juvenile court concluded appellant had waived his right to a juvenile adjudication, treated appellant's no contest plea as an admission of the allegations of the petition, found appellant in violation of the originally charged offense, and committed appellant to the California Youth Authority (CYA). We conclude appellant was entitled to withdraw his plea of no contest and did not waive his right to an adjudication in juvenile court. We reverse.

FACTS AND PROCEDURAL BACKGROUND

Appellant Jermaine B. was born on January 1, 1981. On July 14, 1997, appellant was 16 years old. He was arrested for possession for sale of cocaine base on that date. Appellant gave the police a false name, Jason Ford, and a false date of birth, July 12, 1979. Believing appellant to be an adult, the prosecution charged him by felony complaint with possession for sale of cocaine base in violation of Health and Safety Code section 11351.5.

On July 30, 1997, appellant, who was still 16 years old, entered a certified plea of no contest in municipal court to possession for sale of cocaine in violation of Health and Safety Code section 11351, a lesser offense. In exchange for the no contest plea, it was agreed appellant would be placed on three years formal probation on certain conditions, including 180 days in the county jail. Appellant was advised that his maximum state prison sentence would be four years. Appellant was not advised pursuant to Penal Code section 1192.5 that the trial court could withdraw approval of the plea agreement, which would give appellant the right to withdraw his plea of no contest. On August 13, 1997, appellant was sentenced in superior court pursuant to the plea agreement. He was awarded 45 days of presentence credit.

On August 28, 1997, the prosecution discovered appellant's true name and date of birth. Criminal proceedings in adult court were suspended, appellant was remanded to juvenile hall, and the matter was certified to the juvenile court. On August 29, 1997, a wardship petition was filed in juvenile court alleging appellant had possessed for sale cocaine base in violation of Health and Safety Code section 11351.5. Appellant was arraigned on the petition and denied the allegations of the petition. The matter was set for adjudication.

On September 23, 1997, appellant appeared in juvenile court for adjudication. The prosecution argued appellant was not entitled to a hearing, because he had lied concerning his age and had entered a plea of no contest in adult court. Appellant's counsel objected and pointed out to the juvenile court that appellant had pleaded no contest in order to take advantage of a favorable disposition. Appellant's counsel also pointed out that appellant was not attempting to renege on the plea agreement, but rather the prosecution had instigated the certification to juvenile court. The juvenile court concluded appellant had waived his right to an adjudication in juvenile court by giving a false age and pleading no contest in the municipal court.

Appellant's counsel stated: "Right. And so for the record, the minor is asking for his right to have an adjudication today. If the People are going to raise this issue, they should have raised it at the time of the arraignment before the adjudication was set. So I'm arguing that it's not timely. [p] I'm also objecting to the court's proposed ruling in favor of the People in that I find there is a distinction in Jose D. [v.] Superior Court [ (1993) 19 Cal.App.4th 1098, 23 Cal.Rptr.2d 664] based on the fact that in that case, the minor, who claimed to be an adult, actually got the benefit of a jury trial. And in this case, the minor entered a no contest plea for the benefit of a plea bargain."

Based solely on appellant's no contest plea in adult court to a violation of Health and Safety Code section 11351, the juvenile court found appellant in violation of Health and Safety Code section 11351.5. At the disposition on October 9, 1997, the juvenile court committed appellant to the CYA for a maximum period of confinement not to exceed five years for the instant offense. The maximum period was increased nine months, due to two previous adjudications for violations of Penal Code sections 496, subdivision (a) and 415.

Appellant appealed from the orders declaring him a delinquent ward of the court (Welf. & Inst.Code, § 602) and committing him to the CYA.

DISCUSSION

Withdrawal of Negotiated Plea

Appellant contends he was entitled to withdraw his no contest plea. We agree.

"Plea bargaining is an accepted practice in our criminal justice system." (People v. Cruz (1988) 44 Cal.3d 1247, 1249, 246 Cal.Rptr. 1, 752 P.2d 439.) Upon the acceptance of a plea specifying the punishment available to the sentencing court, the court may not impose a punishment more severe than that specified in the plea bargain. (Id. at p. 1250, 246 Cal.Rptr. 1, 752 P.2d 439.) "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant ... cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea." (Pen.Code, § 1192.5.) "When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon." (People v. Walker (1991) 54 Cal.3d 1013, 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861.) It is well settled that a disposition harsher than that agreed to by the court or the prosecution may not be imposed on a defendant. (Santobello v. New York (1971) 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427.)

The usual remedy for violation of a plea agreement, where the plea bargain cannot be specifically enforced, is to allow the defendant to withdraw the plea and go to trial on the original charges. (People v. Walker, supra, 54 Cal.3d at pp. 1026-1027, 1 Cal.Rptr.2d 902, 819 P.2d 861.) A defendant who makes material misrepresentations in negotiating a plea bargain is not entitled to specific performance of the agreement. (People v. Johnson (1974) 10 Cal.3d 868, 873, 112 Cal.Rptr. 556, 519 P.2d 604.) The defendant is, however, entitled to withdraw the plea of guilty or no contest, if the trial court discovers the misrepresentations and withdraws its prior approval of the bargain. (Id. at pp. 872-873, 112 Cal.Rptr. 556, 519 P.2d 604.) Pursuant to Penal Code section 1192.5, a defendant must be informed by the trial court prior to the negotiated plea of guilty or no contest that the trial court's approval of the plea bargain is not binding and may be withdrawn. The defendant must also be advised that if approval of the bargain is withdrawn, the defendant has the right to withdraw the plea of guilty or no contest. (Ibid.) If a defendant, who has been admonished concerning the right to withdraw the plea, does not object to punishment in excess of the bargain, the defendant relinquishes the right to withdraw the plea. (People v. Walker, supra, 54 Cal.3d at pp. 1024-1025, 1 Cal.Rptr.2d 902, 819 P.2d 861.) If a defendant has not been properly admonished, a failure to object to increased punishment does not waive defendant's right to the benefit of the bargain. (Ibid.)

Penal Code section 1192.5 is not expressly applicable to negotiated dispositions in juvenile court and there is no comparable provision in the Welfare and Institutions Code. However, the principles underlying Penal Code section 1192.5 are applicable to plea bargain situations similar to guilty pleas, even if Penal Code section 1192.5 is not per se applicable. (People v. Calloway (1981) 29 Cal.3d 666, 672, 175 Cal.Rptr. 596, 631 P.2d 30 [admission of probation violation].)

In this case, appellant failed to reveal his true name and minority and entered into a negotiated plea of no contest in adult court. Appellant conditionally waived his right to a contested disposition of his guilt or innocence. This waiver was expressly conditioned on an agreement that he would be sentenced as an adult, placed on probation, and serve no more than 180 days in the county jail. Appellant did not renege on his plea bargain. He was satisfied to go forward with the disposition to which he had agreed. The prosecution discovered appellant's misrepresentations and sought to set aside its agreement. The prosecution, however, sought to bind appellant to his side of the agreement, while at the same time releasing the prosecution from its side. Indeed, the prosecution sought and obtained a finding of a violation of a more serious offense than that to which appellant had pled.

In light of appellant's material...