In re Lunceford

Opinion

WOODS, P. J. By petition for writ of habeas corpus, a felony defendant challenges the sentencing judge’s refusal to permit him to withdraw his negotiated guilty plea after the judge refused to approve the negotiated sentence because defendant had failed to appear on the date set for his probation and sentencing hearing.

We conclude that Penal Code section 1192.51 mandates that a defendant be permitted to withdraw his negotiated guilty plea and proceed to trial when the court declines to approve the negotiated sentence, even where the defendant fails to appear on the original sentencing date.

Defendant was charged in a two-count information with “joyriding” (count I—a violation of Veh. Code, § 10851) and receiving stolen property (count II, a violation of § 496).

On August 11, 1986, defendant entered into a negotiated plea bargain under which he entered a guilty plea to count I. The 'People promised to dismiss count II at the time of sentencing. Defendant was guaranteed that his sentence would be either county jail time or probation, at the discretion [182]of the sentencing judge. If probation were granted, the sentencing judge would determine the length of the period and could decide to impose up to one year in jail as a condition of probation. Defendant was advised that if, at sentencing, the court for any reason refused to approve the plea bargain, defendant would have the option to withdraw his guilty plea and go to trial on both counts.2

The probation and sentencing hearing was set for October 24, 1986. Defendant remained at liberty on his own recognizance.

Defendant failed to appear on October 24, 1986, and a no-bail bench warrant issued.

On December 4, 1986, defendant appeared for sentencing. The court refused to approve the terms of the negotiated plea because defendant had failed to appear for sentencing on October 24. Defendant’s motion to withdraw his guilty plea pursuant to section 1192.5 was denied. The court imposed a middle-term two-year state prison sentence on count I and dismissed count II.

Defendant filed his petition with this court on December 19, 1986. On December 22, this court issued an order temporarily staying transportation of defendant to prison. After receiving preliminary opposition from the People, we issued the order to show cause and set the matter for hearing.