People v. Rodriguez

Opinion

BEST, J. Defendant was convicted by plea of violating Health and Safety Code section 11350, possession of heroin. He was ultimately sentenced to the upper term of three years, execution of which term was suspended, and was granted probation for a period of five years on condition, among others, that he serve one year in the county jail.

[1558]Defendant’s sole contention on appeal is that the trial court abused its discretion in denying his motion to withdraw his guilty plea. We agree.

Facts

The facts underlying defendant’s violation of Health and Safety Code section 11350 are not pertinent to the appeal. Defendant contends only that the trial court erred in denying his motion to withdraw his guilty plea. The facts relevant to this appeal are that on May 10, 1985, defendant pled guilty to possession of heroin (Health & Saf. Code, § 11350). At the time of defendant’s plea, the trial court stated to defendant that after discussing the matter with defense counsel and reviewing the records, it would sentence defendant to no more than nine months in county jail as a condition of felony probation. Defendant was also told that if, at the time of sentencing, the court determined to sentence defendant to more than nine months in county jail, defendant could set aside his guilty plea and go to trial. After accepting defendant’s guilty plea and determining there was a factual basis for the plea, the trial court set the sentencing hearing for June 12, 1985.

On June 12, 1985, however, defendant failed to appear, and a bench warrant was issued for his arrest. He later surrendered to the court on December 31, 1985. A sentencing hearing was rescheduled for January 14, 1986, and the probation department was ordered to prepare a supplemental probation officer’s report. On January 14, defendant made a motion to withdraw his guilty plea if the court intended to follow the probation officer’s updated report. The initial report apparently recommended that defendant be placed on probation for three years and serve nine months in county jail; whereas, the supplemental report recommended the aggravated term of imprisonment of three years. The district attorney, however, argued, citing to People v. Santos (1985)171 Cal.App.3d 67 [216 Cal.Rptr. 911], that defendant had violated the plea bargain by failing to appear, was not entitled to enforce the bargain and was no longer entitled to withdraw his guilty plea even if the trial court imposed a sentence in excess of that provided for in the plea bargain. The trial court did not make an express finding at this hearing, but it gave defendant a continuance to enable him to show why his failure to appear was not willful and, if willful, was not a breach of the terms of the plea bargain.