IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S148536
v.
Ct.App. 2/3 B189791
LUIS GREGORIO SEGURA,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. KA071474
Defendant Luis Gregorio Segura was charged with the commission of a
felony and was alleged to have suffered a prior felony conviction, with both the
prior and the current offenses qualifying as “strikes” within the meaning of the
“Three Strikes” law. He negotiated with the prosecutor a plea of no contest to the
present charge in exchange for which the prior conviction allegation was to be
dismissed and he was to be placed on probation on the condition, among others,
that he serve 365 days in county jail. Prior to entering his plea, defendant waived
his constitutional rights and acknowledged that if he was not a citizen of the
United States, the one-year jail term would qualify the offense as an “aggravated
felony” under federal law and require his deportation.
When the federal authorities initiated deportation proceedings after
defendant was released from jail, he applied to the trial court to “reduce” his jail
term to 360 days, effective nunc pro tunc. The trial court denied defendant’s
request on the ground the court was not authorized to modify a sentence
prescribed pursuant to the parties’ plea agreement. On appeal, the reviewing court
reversed, concluding the trial court possessed continuing jurisdiction during the
1
period of probation and the authority to modify or revoke probation, including a
change in the agreed-upon term of confinement that was imposed as a condition of
probation.
We granted review to determine whether a prescribed jail term that
constitutes a material provision of a plea agreement conferring as its chief benefit,
a grant of probation in lieu of a prison sentence, may be modified by the trial court
in the exercise of its authority to modify or revoke probation during the
probationary period. As we shall explain, in this matter defendant was granted
probation, for which he otherwise was ineligible in view of the prior conviction
allegation, in exchange for entering into a plea agreement comprised of various
terms, including confinement in the county jail for a specified number of days. He
knowingly and voluntarily accepted those terms of the agreement. The trial
court’s statutory authority to modify conditions of probation in the exercise of its
jurisdiction over a probationer did not extend to modifying a material term of a
plea agreement that bestowed the privilege of probation subject to defendant’s
service of a specified jail term. Accordingly, we reverse the judgment rendered by
the Court of Appeal.1
1
The Attorney General informs us that defendant already has been deported.
Thus, the issue may have become moot with regard to defendant (absent its
relevance in future immigration and naturalization proceedings), and the case may
be subject to dismissal. (See People v. Cheek (2001) 25 Cal.4th 894, 898;
Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122.) Nonetheless,
the question raised is a matter of public interest and is likely to recur in other cases
at a time prior to a defendant’s deportation when the opportunity for review may be
limited. (Thompson v. Department of Corrections, supra, at p. 122; Alfredo A. v.
Superior Court (1994) 6 Cal.4th 1212, 1218-1219; In re William M. (1970)
3 Cal.3d 16, 23-25.) Moreover, the parties dispute whether the Court of Appeal’s
decision is consistent with, or distinguishable from, the decision in People v. Borja
(2002) 95 Cal.App.4th 481 (Borja). (See also People v. Paredes (2008)
160 Cal.App.4th 496, 511-512.) Accordingly, for the guidance of courts in future
cases presenting similar issues, we have exercised our inherent authority to retain
the case for argument and the rendering of an opinion. (See People v. Cheek,
supra, at pp. 897-898; People v. Mancheno (1982) 32 Cal.3d 855, 859, fn. 1.)
2
I
An information was filed in August 2005 alleging that on May 29, 2005,
defendant inflicted corporal injury upon his spouse (punishable by a term of two,
three, or four years in state prison), a serious or violent felony within the meaning
of the Three Strikes law (Pen. Code §§ 273.5, subd. (a), 1170.12, subds. (a)-(d)),2
and that in 1990 defendant suffered a prior conviction of felony battery, also a
serious or violent felony (§§ 246.3; 1170.12, subds. (a)-(d)). Defendant
additionally had suffered a 1997 felony conviction of possessing or discharging a
loaded firearm. Ordinarily, a defendant who has suffered two prior felony
convictions is ineligible for probation. (§ 1203, subd. (e)(4).)
On September 14, 2005, the parties entered into a plea agreement pursuant
to which defendant agreed to plead no contest to the charge he inflicted corporal
injury upon his spouse. The prosecutor agreed that the prior conviction allegation
would be dismissed, that defendant’s present conviction would not be utilized as a
“strike” conviction in a future case, and that defendant would be placed on five
years’ probation, subject to the condition he serve the first 365 days in county jail.
Defendant executed the printed form recording the parties’ plea agreement,
placing his initials in appropriate boxes indicating he understood and agreed to
waive his constitutional rights related to trial, and understood that if he was not a
citizen of the United States, he “must expect” that his plea of no contest would
result in deportation, exclusion from admission to the United States, and denial of
citizenship or naturalization.
At the hearing held on that date, and prior to defendant’s entry of his plea,
the prosecutor reviewed and obtained defendant’s waiver of his trial-related
constitutional rights, and also explained the collateral consequences of defendant’s
plea. During the latter review, the prosecutor advised defendant: “Sir, if you’re
2
All further statutory references are to the Penal Code unless otherwise
indicated.
3
not a citizen of the United States, this plea will have the consequences of
deportation, exclusion from admission and denial of naturalization.” After
explaining an additional consequence of the plea applicable if defendant was then
on probation or parole in another matter, the prosecutor stated: “Do you
understand the possible consequences of your plea?” Defendant, who is not a
citizen of the United States, responded “Yes.”
Having found that defendant freely, knowingly, and voluntarily had waived
his constitutional rights and entered his plea, the trial court accepted defendant’s
plea, dismissed the prior conviction allegation, and placed defendant on probation
subject to the terms of the plea agreement, which specified that defendant serve
365 days in county jail. The court imposed various other conditions, including
that defendant not contact the victim and that he participate in domestic violence
counseling.
When released from jail, defendant promptly was detained by federal
immigration authorities. On January 6, 2006, defendant’s attorney filed in the
superior court an “ex parte motion to reduce sentence” seeking an “emergency”
nunc pro tunc order or a writ of error coram nobis to modify defendant’s
probationary jail term to 360 days. 3 The motion was based upon the following
information. The United States Department of Homeland Security (which
3
In the superior court and the Court of Appeal, defense counsel indicated
that defendant completed his one-year jail term prior to filing this motion early in
2006. The offense occurred on May 29, 2005, and defendant was arrested on July
27, 2005. The parties’ plea agreement dated September 14, 2005 notes: “[One]
year county jail; credit time served; [five] year probation . . . .” Both the hearing
record and the minute orders for that date reflect that defendant received credit for
time served of 75 days, comprised of 50 days actually served and 25 days for good
conduct. Even taking into account the credit defendant received for time served, it
is evident he gained early release from jail, and his answer brief confirms that he
served less than four months of the one-year term. Neither the briefing nor the
record provides an explanation of the circumstances leading to his early release.
Nonetheless, the People do not object or refer to this circumstance, and it does not
appear to have any bearing on the legal issues before us.
4
encompasses the former United States Immigration and Naturalization Service)
had commenced deportation proceedings against defendant pursuant to section
237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C.
§ 1227(a)(2)(A)(iii)) because he had been convicted of an “aggravated felony,”
defined as a “crime of violence . . . for which the term of imprisonment [is] at least
one year.” (Immig. & Nat. Act, § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).) That
agency had set a hearing on his deportation for January 13, 2006. Defendant had
been a “lawful permanent legal resident” of the United States for more than 15
years, owned a residence, and was the sole means of support for his wife and three
children. Notice of the pending action of the federal authorities had been provided
to the deputy district attorney who had participated in the plea agreement.
At the January 6 hearing on defendant’s motion, the prosecutor argued that
the one-year sentence was a term of the plea agreement, that defendant had
obtained “a good deal,” that the prosecutor had agreed to dismiss defendant’s 1990
prior strike conviction as remote, but that since 1990 defendant had been
convicted of a number of misdemeanor offenses and had been identified as being
involved in gang activity. The superior court denied defendant’s motion, finding
that the 365-day sentence was an integral part of the parties’ plea agreement and as
such was not subject to subsequent modification by the court. Defendant
appealed.4
4
In his opening brief filed in the Court of Appeal, defendant provided a
“statement of appealability” asserting that the trial court’s order denying his
motion was appealable as an order made after judgment affecting his substantial
rights. (§ 1237, subd. (b).) Defendant stated that by failing to avert his imminent
deportation, the trial court’s order denying reduction of his jail sentence affected
defendant’s right to remain in this country with his family as a “lawful permanent
resident.” Neither the respondent’s brief filed by the Attorney General, nor the
decision of the Court of Appeal, commented upon the appealability of the trial
court’s order.
We requested that the parties provide supplemental briefing regarding the
appealability of the order. Defendant reiterates that the order is appealable as an
(Footnote continued on next page)
5
The Court of Appeal reversed, agreeing with the argument, newly advanced
by defendant, that section 1203.3 authorized the trial court to modify, by means of
an order entered nunc pro tunc, any imposed condition of probation — including
the negotiated requirement that defendant serve one year in the county jail —
without obtaining the prior approval of both parties. The appellate court remanded
the case, reasoning the trial court failed to recognize that the plea agreement did
not preclude it from exercising its discretion to reduce the jail term during the
period of probation. We granted the People’s petition for review.
II
The People contend the trial court correctly determined that the plea
agreement, requiring defendant as a condition of his probation to serve one year in
county jail, precluded the court from subsequently reducing the prescribed term of
(Footnote continued from previous page)
order made after judgment affecting his substantial rights. (§ 1237, subd. (b);
People v. Romero (1991) 235 Cal.App.3d 1423, 1425-1426 [holding that an order
denying the defendant’s motion seeking early termination of probation and release
from penalties is appealable].) The Attorney General, on the other hand, asserts
that the order is not appealable, because the appeal would bypass or duplicate an
appeal taken from the judgment itself (People v. Thomas (1959) 52 Cal.2d 521,
527; People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981 (Gallardo)), and is
not appealable as an order denying a petition for writ of coram nobis, because the
purported petition for writ of coram nobis does not state a prima facie case for
relief based upon newly discovered evidence. (People v. Totari (2002) 28 Cal.4th
876, 885, fn. 4; Gallardo, supra, at p. 982.)
Nonetheless, the Attorney General requests that we treat the purported
appeal as a petition for writ of habeas corpus and, in the interest of judicial
economy and because the issue is a matter of concern to many persons other than
defendant, decide the case on its merits. (See generally People v. Banks (1959) 53
Cal.2d 370, 379-381 & fn. 5.) The Attorney General points out that a probationer
in constructive custody may petition for a writ of habeas corpus (In re Stier (2007)
152 Cal.App.4th 63, 82), and in analogous circumstances appeals have been so
treated. (Gallardo, supra, 77 Cal.App.4th at p. 986). We do so here in the interest
of judicial economy and because the issue is of general concern.
6
incarceration in order to avert defendant’s deportation.5 The People urge that
when a trial court has accepted the terms of a negotiated plea, determined the
defendant has validly waived his or her constitutional rights, and entered and
imposed sentence, the court lacks statutory or inherent authority thereafter to
“unilaterally alter a material term of the plea agreement” to render it more
favorable to the defendant. The People also suggest the Court of Appeal
misconstrued the trial court’s general statutory authority to modify probation
conditions by interpreting that authority to permit alteration of a material term of
the parties’ plea agreement, failed adequately to distinguish Borja, supra, 95
Cal.App.4th 481, and erroneously viewed the trial court’s discretionary authority
to issue an order nunc pro tunc as encompassing the modification of a completed
sentence.
In deciding whether the trial court was authorized in its discretion to
modify the condition of defendant’s probation requiring a one-year county jail
term, notwithstanding the parties’ plea agreement that expressly incorporated that
condition, we briefly consider the nature and purpose of a plea agreement. Plea
negotiations and agreements are an accepted and “integral component of the
criminal justice system and essential to the expeditious and fair administration of
our courts.” (People v. Alvernaz (1992) 2 Cal.4th 924, 933; People v. Panizzon
(1996) 13 Cal.4th 68, 79-80 (Panizzon).) Plea agreements benefit that system by
promoting speed, economy, and the finality of judgments. (Panizzon, supra, at p.
80; People v. Vargas (1993) 13 Cal.App.4th 1653, 1658; see also In re Chavez
(2003) 30 Cal.4th 643, 654, fn. 5 [noting judgments based upon plea agreements
5
In requesting that the trial court reduce his jail term to avoid deportation,
defendant relied upon In re Cota-Vargas (2005) 23 I. & N. Dec. 849. In that case,
the federal Board of Immigration Appeals afforded full faith and credit to the state
trial court’s nunc pro tunc reduction of the defendant’s probationary jail sentence
from 365 days to 240 days, an order intended to prevent his deportation. (Id. at
pp. 851-853.) As defendant recognizes, no plea agreement was at issue in that
decision, which, in any event, is not controlling in this court.
7
“represent the vast majority of felony and misdemeanor dispositions in criminal
cases,” and citing statistics indicating that less than 5 percent of felony cases are
disposed of through felony convictions resulting from a court or jury trial].)
As we previously have explained, the process of plea negotiation
“contemplates an agreement negotiated by the People and the defendant and
approved by the court. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970)
3 Cal.3d 595, 604-608.) Pursuant to this procedure the defendant agrees to plead
guilty [or no contest] in order to obtain a reciprocal benefit, generally consisting of
a less severe punishment than that which could result if he were convicted of all
offenses charged. (People v. West, supra, 3 Cal.3d at p. 604.) This more lenient
disposition of the charges is secured in part by prosecutorial consent to the
imposition of such clement punishment (§ 1192.5), by the People’s acceptance of
a plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or
kind (People v. West, supra, 3 Cal.3d at p. 608), or by the prosecutor’s dismissal
of one or more counts of a multi-count indictment or information. Judicial
approval is an essential condition precedent to the effectiveness of the ‘bargain’
worked out by the defense and prosecution. (§§ 1192.1, 1192.2, 1192.4, 1192.5;
People v. West, supra, 3 Cal.3d at pp. 607-608.) But implicit in all of this is a
process of ‘bargaining’ between the adverse parties to the case — the People
represented by the prosecutor on one side, the defendant represented by his
counsel on the other — which bargaining results in an agreement between them.
(See People v. West, supra, 3 Cal.3d at pp. 604-605.)” (People v. Orin (1975) 13
Cal.3d 937, 942-943 (Orin); see 4 Witkin & Epstein, Cal. Criminal Law (3d ed.
2000) Pretrial Proceedings, §§ 303-304, pp. 522-525.)
We further clarified in Orin that only the prosecutor is authorized to
negotiate a plea agreement on behalf of the state. “[T]he court has no authority to
substitute itself as the representative of the People in the negotiation process and
under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over
prosecutorial objection. Such judicial activity would contravene express statutory
8
provisions requiring the prosecutor’s consent to the proposed disposition, would
detract from the judge’s ability to remain detached and neutral in evaluating the
voluntariness of the plea and the fairness of the bargain to society as well as to the
defendant, and would present a substantial danger of unintentional coercion of
defendants who may be intimidated by the judge’s participation in the matter.
[Citation.]” (Orin, supra, 13 Cal.3d at p. 943, fn. omitted; see People v. Turner
(2004) 34 Cal.4th 406, 417-418; People v. Weaver (2004) 118 Cal.App.4th 131,
148-150; 4 Witkin & Epstein, Cal. Criminal Law, supra, §§ 305-306, pp. 525-
527.)
Because a “negotiated plea agreement is a form of contract,” it is
interpreted according to general contract principles. (People v. Shelton (2006) 37
Cal.4th 759, 767, citing Civ. Code, § 1635 et seq.) Acceptance of the agreement
binds the court and the parties to the agreement. (See, e.g., People v. Armendariz
(1993) 16 Cal.App.4th 906, 910-911; People v. Woodard (1982) 131 Cal.App.3d
107, 110.) “ ‘When a guilty [or nolo contendere] 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.’ ” (Panizzon, supra, 13 Cal.4th at p. 80, quoting People v. Walker
(1991) 54 Cal.3d 1013, 1024 (Walker); see In re Troglin (1975) 51 Cal.App.3d
434, 438.)6
For its part, of course, the trial court may decide not to approve the terms of
a plea agreement negotiated by the parties. (See Orin, supra, 13 Cal.3d at pp. 942-
943.) If the court does not believe the agreed-upon disposition is fair, the court
“need not approve a bargain reached between the prosecution and the defendant,
6
A negotiated plea of guilty or no contest requires the defendant to waive his
or her constitutional rights related to trial. (Panizzon, supra, 13 Cal.4th at p. 80.)
Prior to accepting the plea, the trial court must inform the defendant of the
constitutional rights being waived and the direct consequences of the plea.
(Panizzon, supra, at p. 80; Walker, supra, 54 Cal.3d at p. 1022.)
9
[but] it cannot change that bargain or agreement without the consent of both
parties.” (People v. Godfrey (1978) 81 Cal.App.3d 896, 903; cf. People v.
Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338-1339 (Gifford) [by
statute the trial court may withdraw its approval prior to sentencing, permitting
withdrawal of the negotiated plea].)
Although a plea agreement does not divest the court of its inherent
sentencing discretion, “a judge who has accepted a plea bargain is bound to
impose a sentence within the limits of that bargain. [Citation.] ‘A plea agreement
is, in essence, a contract between the defendant and the prosecutor to which the
court consents to be bound.’ [Citation.] Should the court consider the plea
bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or
indirectly. [Citation.] Once the court has accepted the terms of the negotiated
plea, ‘[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes
more favorable to a defendant unless, of course, the parties agree.’ [Citation.]”
(People v. Ames (1989) 213 Cal.App.3d 1214, 1217 (Ames); see People v. Tang
(1997) 54 Cal.App.4th 669, 681-682; Gifford, supra, 53 Cal.App.4th at pp. 1337-
1338; People v. Armendariz, supra, 16 Cal.App.4th 906, 910-911; People v.
Godfrey, supra, 81 Cal.App.3d at p. 904.)7
As we have seen, in the context of a negotiated plea the trial court may
approve or reject the parties’ agreement, but the court may not attempt to secure
such a plea by stepping into the role of the prosecutor, nor may the court
effectively withdraw its approval by later modifying the terms of the agreement it
had approved. Because the trial court’s role in the plea-negotiation process is thus
circumscribed, the People assert the court below lacked authority to modify the
7
Section 1192.5 provides in part: “Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant,
except as otherwise provided in this section, 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.”
10
one-year jail term that had been made a condition of defendant’s probation by the
parties’ plea agreement. The People rely upon Gifford, supra, 53 Cal.App.4th at
pages 1337-1339 (trial court lacked authority to modify a plea agreement that
included a specified prison term by substituting a probationary jail sentence;
instead it was within the court’s authority to withdraw its approval of the
agreement before imposing sentence) and Ames, supra, 213 Cal.App.3d at pages
1217-1218 (trial court lacked discretion to dismiss a special circumstance
allegation admitted by the defendant pursuant to the parties’ plea agreement, in
exchange for which the prosecutor had dismissed a second special circumstance
allegation and promised not to seek the death penalty).
The Court of Appeal in the present case concluded Gifford and Ames were
“distinguishable in that they involve situations in which the trial court modified or
contemplated modification of a negotiated prison term.” The Court of Appeal
discerned in section 1203.3 the authority to modify any probationary condition,
including a fixed jail term, whether probation has been granted by the court on its
own initiative or negotiated by the parties and accepted by the court. Thus, we
next consider the extent of the trial court’s statutory authority to modify or revoke
probation.
A trial court grants probation by suspending the imposition of a sentence or
imposing a sentence and suspending its execution. (People v. Howard (1997) 16
Cal.4th 1081, 1092-1093.) During the period of probation, the court may revoke,
modify, or change its order suspending imposition or execution of the sentence, as
warranted by the defendant’s conduct. (§§ 1203.2, 1203.3.)8
8 Section
1203.3
provides
in relevant part: “(a) The court shall have
authority at any time during the term of probation to revoke, modify, or change its
order of suspension of imposition or execution of sentence. The court may at any
time when the ends of justice will be subserved thereby, and when the good
conduct and reform of the person so held on probation shall warrant it, terminate
the period of probation, and discharge the person so held. [¶] (b) The exercise of
the court’s authority in subdivision (a) to revoke, modify, change, or terminate
(Footnote continued on next page)
11
In holding that section 1203.3 authorized the trial court to modify its order
granting defendant probation conditioned upon his serving a one-year jail term,
despite the inclusion of that condition in the plea agreement, the Court of Appeal
in this case relied upon People v. Allen (1975) 46 Cal.App.3d 583 (Allen), in
which the same appellate division held that a plea agreement encompassing
probation with conditions implicitly includes “the possibility that probation may
later be modified, revoked, or terminated, in accordance with section 1203.3.”9
(Allen, supra, at p. 589.) We undertake a review of Allen in some detail.
In Allen, the parties’ plea agreement provided that on each of three counts,
the defendant would be placed on probation, subject to a one-year consecutive
probationary jail term. In view of the defendant’s exemplary conduct as a prisoner
(Footnote continued from previous page)
probation is subject to the following: [¶] (1) Before any sentence or term or
condition of probation is modified, a hearing shall be held in open court before the
judge. The prosecuting attorney shall be given a two-day written notice and an
opportunity to be heard on the matter . . . . [¶] (A) If the sentence or term or
condition of probation is modified pursuant to this section, the judge shall state the
reasons for that modification on the record.”
9
The Court of Appeal in the present case also distinguished Borja, supra, 95
Cal.App.4th 481, in which the appellate court set aside the trial court’s nunc pro
tunc order reducing, by one day, the defendant’s 365-day probationary jail term,
several years after the completion of probation, to forestall the mandatory-
deportation consequences of postconviction changes in immigration law. In
Borja, the Court of Appeal held that the trial court could not modify nunc pro tunc
a disposition correct when made, that changes in federal law did not provide a
valid ground upon which to alter the record of conviction and sentence, and that
the modification violated the intent of state and federal laws to make prior
convictions available for future use, including consideration in immigration
proceedings. (Id. at pp. 486-487.) In the present case, the appellate court held that
the trial court was statutorily authorized to modify the terms of probation at the
time defendant sought modification of his sentence, and that a nunc pro tunc order
was appropriate to achieve that end. Because we hold that the trial court was not
authorized by section 1203.3 to modify the jail term that was included within the
terms of the negotiated plea agreement, and correctly denied defendant’s motion,
we need not engage in any further analysis of Borja.
12
during the first one-year term, a hearing was held to consider his request to modify
the terms of probation (§ 1203.3), and the trial court reduced one of the three one-
year jail terms to nine months. The People appealed. In upholding the trial court,
the Court of Appeal initially emphasized the rehabilitative purpose of probation
and the breadth of the statutory language that conferred upon the trial court the
authority “ ‘at any time during the term of probation to revoke, modify, or change
its order of suspension of imposition or execution of sentence,’ ” and “ ‘at any
time when the ends of justice will be subserved thereby’ ” to terminate the period
of probation and discharge the probationer. (Allen, supra, 46 Cal.App.3d at
pp. 588-589, italics added in Allen.)
The decision in Allen concluded that in view of the importance of the trial
court’s authority to modify probation, “no plea bargain can be construed as calling
for the abdication of that power without express language making it a condition of
the prosecutor’s approval and permitting the prosecution to require the entire
bargain be withdrawn in the event the court should decline to accept such
limitation.” (Allen, supra, 46 Cal.App.3d at p. 589.) Because the record did not
suggest the trial court was asked to “surrender its inherent power subsequently to
modify probation if conditions warranted,” the reviewing court held that the trial
court “complied with the statutory requirement that, having approved the plea, it
‘may not proceed as to such plea other than as specified in the plea.’ (Pen. Code,
§ 1192.5.) Defendant received probation under the precise conditions ‘specified in
the plea,’ and to the extent that the analogy of a plea bargain to a contract with the
court is apt, the court fulfilled its responsibilities.” (Allen, at p. 590.)
Allen also reasoned that “[a] court is prohibited from giving a defendant a
sentence more severe than that bargained for (Pen. Code, § 1192.5; People v.
West, supra, 3 Cal.3d at pp. 607-608); on the other hand, having granted
probation, the court can immediately revoke it on any ground stated in Penal Code
section 1203.2, subdivision (a). [Citation.] If defendant violated probation, he
could be sentenced accordingly [citations] notwithstanding the terms of any plea
13
bargain. Thus despite West, post-judgment modification of probation can make
the ultimate disposition of the case more onerous to defendant than originally
bargained for. [¶] So despite the fact that the defendant, by a plea bargain, can
‘specify the exercise of the court’s power to grant probation or suspend sentence’
(People v. West, supra, 3 Cal.3d at p. 607), the court’s power to make adverse
post-judgment adjustments is unaffected. Conversely, if the prosecutor can
bargain for minimum conditions of probation, the court may also make post-
judgment adjustments favoring the probationer.” (Allen, supra, 46 Cal.App.3d at
p. 590, fn. omitted.)
It is evident the court in Allen conflated the trial court’s asserted authority
to modify probation conditions that have been imposed pursuant to the stipulation
of the parties and accepted by the court, with the court’s actual authority to revoke
probation based upon the defendant’s subsequent violation of one or more
conditions of probation. In the latter situation, it is well established that when “a
defendant granted probation as part of a plea bargain violates that probation,
subsequent sentencing is not limited by the terms of the original plea.” (People v.
Martin (1992) 3 Cal.App.4th 482, 487, italics added, citing People v. Bookasta
(1982) 136 Cal.App.3d 296, 299-300, People v. Jones (1982) 128 Cal.App.3d 253,
262, Allen, supra, 46 Cal.App.3d at p. 590, and People v. Turner (1975) 44
Cal.App.3d 753, 757.) “ ‘A consummated plea bargain is not a perpetual license
to a defendant to violate his probation. The plea bargain does not insulate a
defendant from the consequences of his future misconduct. “A defendant gets the
benefit of his bargain only once. Like time, a plea bargain once spent is gone
forever.” ’ ” (People v. Martin, supra, 3 Cal.App.4th at p. 487.)
Finally, the court in Allen emphasized that the trial court’s authority to
modify the probationary jail term is a function of its “exclusive exercise of judicial
power” with regard to a probationer’s status after judgment has been imposed.
(Allen, supra, 46 Cal.App.3d at p. 591.) Noting that “the decision to grant
probation is a judicial act [citation], the exercise of which ‘cannot constitutionally
14
be subordinated to a veto of the prosecutor,’ ” the court in Allen cited our cases
invalidating, “as violative of the constitutional separation of powers,” statutes
prohibiting the court (except with the prosecutor’s consent) from striking prior-
conviction allegations, trying certain charges as misdemeanors, or finding certain
persons eligible for narcotics treatment. (Ibid.) The court observed, “A judge
cannot be required to bargain for retention of his [or her] independent judicial
power. [Citations.]” (Ibid.)
The circumstance that a plea agreement stipulates the defendant will be
granted probation conditioned upon a specified term of incarceration does not
deprive the trial court of all of its authority in matters of probation. We
recognized in Walker, supra, 54 Cal.3d at page 1024, in considering a deviation
from the terms of a plea agreement that assertedly violated the defendant’s due
process rights, that when probation is granted in the context of a plea agreement,
“[a] punishment or related condition that is insignificant relative to the whole,
such as a standard condition of probation, may be imposed whether or not it was
part of the express negotiations.” (Id. at p. 1024.)
But when, as in the present case, the parties negotiate a plea agreement that,
among other express provisions, grants probation incorporating and conditioned
upon the service of a specified jail term, the resulting term of incarceration is
not — and may not be treated as — a mere standard condition of probation.
Rather, the term of incarceration is in the nature of a condition precedent to, and
constitutes a material term of, the parties’ agreement.10 As such, the jail term is
not subject to subsequent modification without the consent of both parties, and
cannot be altered solely on the basis of the trial court’s general statutory authority
to modify probation during the probationary period. It follows that in the present
10
We need not determine as a general matter what constitutes a material term
of a plea agreement, because the one-year term in the present case clearly was a
material term.
15
case, the trial court correctly determined that under the circumstances it lacked
authority to grant defendant’s request to modify his probationary jail term, and the
appellate court erred in concluding otherwise. To the extent it is inconsistent with
our decision in the present case, we disapprove People v. Allen, supra, 46
Cal.App.3d 583.11
As we have discussed, following entry of the judgment, the trial court
retained its authority pursuant to section 1203.3 to revoke, modify, or change
probation or modify conditions that were not made a part of the parties’ plea
agreement. Nonetheless, as the trial court recognized, it was not at liberty to
modify a condition integral to the granting of probation in the first place — a
negotiated condition included within the plea agreement entered into by the
parties, accepted by the court, and incorporated into the judgment.
11
The People further contend the trial court could not, by means of an order
made nunc pro tunc, “rewrite history” to modify the jail term originally included
in the judgment, even assuming the court possessed statutory authority to modify a
probationary jail term set forth in a plea agreement. Because we have concluded
that the trial court was not authorized by section 1203.3 to modify the
probationary jail term expressly made part of the parties’ plea agreement and
accepted by the court, we need not, and therefore do not, decide this issue.
16
III
The judgment of the Court of Appeal is reversed.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Segura
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 144 Cal.App.4th 200
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S148536Date Filed: August 4, 2008
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Wade D. Olson, Commissioner
__________________________________________________________________________________
Attorneys for Appellant:
Esperanza V. Bada, under appointment by the Supreme Court, and Mark P. LaScola for Defendant andAppellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,Chief Assistant Attorneys General, Pamela C. Hamanka, Assistant Attorney General, Victoria B. Wilson,
Kristofer Jorstad and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Esperanza V. BadaLaw Offices of Esperanza V. Bada
1240 North Hacienda Boulevard, Suite 106
La Puente, CA 91744-1663
(626) 917-6822
Steven D. Matthews
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2367
Petition for review after the Court of Appeal reversed a judgment of conviction of a criminal offense. This case presents the following issues: (1) Did the trial court have the power, over the People's objection, to rewrite and reduce an agreed-upon material term of a plea agreement that imposed a probationary term on defendant? (2) Did the trial court have the power to reduce the one-year term in county jail imposed pursuant to the plea agreement after defendant had already served the term?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 08/04/2008 | 44 Cal. 4th 921, 188 P.3d 649, 80 Cal. Rptr. 3d 715 | S148536 | Review - Criminal Appeal | closed; remittitur issued | PEOPLE v. FEYRER (S154242) |
| 1 | Segura, Luis Gregorio (Defendant and Appellant) 13417 Moccasin Street La Puente, CA 91746 Represented by Esperanza Ventus Bada Attorney at Law 1240 N. Hacienda Boulevard, Suite 106 La Puente, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Steven D. Matthews Office of the Attorney General 300 South Spring Street Los Angeles, CA |
| Opinion Authors | |
| Opinion | Chief Justice Ronald M. George |
| Disposition | |
| Aug 4 2008 | Opinion: Reversed |
| Dockets | |
| Nov 30 2006 | Petition for review filed Respondent The People Supervising Deputy A.G. Steven D. Matthews |
| Dec 5 2006 | Record requested |
| Dec 13 2006 | Received Court of Appeal record |
| Jan 19 2007 | Time extended to grant or deny review to and including February 28, 2007, or the date upon which review is either granted or denied. |
| Feb 14 2007 | Petition for review granted (criminal case) Votes: George, C.J., Baxter, Werdegar, Moreno, and Corrigan, JJ. |
| Mar 12 2007 | Opening brief on the merits filed Respondent People Supervising Deputy Attorney General Steven D. Matthews |
| Apr 13 2007 | Answer brief on the merits filed Appellant Luis Gregorio Segura |
| Apr 20 2007 | Reply brief filed (case fully briefed) Respondent People Supervising Deputy Attorney General Steven D. Matthews |
| Mar 18 2008 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Esperanza V. Bada is hereby appointed to represent appellant on the appeal now pending in this court. |
| Mar 26 2008 | Supplemental briefing ordered The parties are directed to submit letter briefs, to be filed concurrently no later than the close of business on Friday, April 4, 2008, in the San Francisco office, and to submit any reply briefs, to be filed concurrently no later than the close of business on Friday, April 11, 2008 in that office. The parties are requested to address the following questions: (1) Is the underlying order of this case an appealable order? (See Pen. Code, section 1237; People v. Gallardo (2000) 77 Cal.App.4th 971.) (2) If not, is the order subject to discretionary writ review and, if so, what kind of writ? (3) If the order is not appealable but is reviewable by a discretionary writ, may and should this court treat the purported appeal as the appropriate writ and exercise its discretion to decide the merits of the issue that has been briefed? |
| Apr 3 2008 | Filed: Letter Brief Respondent People ~Supervising Deputy Attorney General Steven D. Matthews |
| Apr 4 2008 | Letter brief filed Luis G. Segura, appellant Esperanza V. Bada, counsel |
| Apr 30 2008 | Case ordered on calendar to be argued on Tuesday, May 27, 2008, at 1:30 p.m., in San Francisco |
| May 27 2008 | Cause argued and submitted |
| Jul 30 2008 | Compensation awarded counsel Atty Bada |
| Aug 1 2008 | Notice of forthcoming opinion posted |
| Aug 4 2008 | Opinion filed: Judgment reversed Majority Opinion by George, C.J. joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
| Sep 9 2008 | Remittitur issued (criminal case) |
| Sep 15 2008 | Received: Receipt for remittitur from the Court of Appeal, Second Appellate District, Division Three |
| Briefs | |
| Mar 12 2007 | Opening brief on the merits filed |
| Apr 13 2007 | Answer brief on the merits filed |
| Apr 20 2007 | Reply brief filed (case fully briefed) |
| Brief Downloads | |
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| May 16, 2011 Annotated by laura jacobsen | FACTS: On September 14, 2005, defendant entered into a plea agreement whereby he agreed to plead no contest to the charge that he inflicted corporal injury upon his spouse. Defendant agreed to be placed on five years’ probation provided that he serve the first 365 days in county jail. Prior to entering the plea, defendant waived his constitutional rights and acknowledged that if he was not a United States citizen, the one-year jail term would qualify the offense as an aggravated felony pursuant to federal law and he would be deported. Defendant was not a United States citizen. Upon his early release from county jail, defendant was immediately detained by federal immigration authorities. Defendant’s attorney filed an emergency motion requesting that the trial court reduce his jail term to 360 days, effective nunc pro tunc. PROCEDURAL POSTURE: The trial court denied the defendant’s request to reduce his jail term to 360 days in order to avoid triggering federal deportation proceedings on the ground that the court was not authorized to modify a sentence set out in a parties’ plea agreement. The Court of Appeal reversed, holding that the trial court possessed continuing jurisdiction during the period of probation, as well as the authority to modify or revoke probation, including the power to change the condition of probation, the term of confinement. ISSUE(S): Whether a trial court may modify a prescribed jail term that constitutes a material provision of a plea agreement as an exercise of its authority to modify or revoke probation during the probationary period. HOLDING: The Supreme Court held that the trial court’s statutory authority to modify conditions of probation during the probationary period did not include the authority to modify a material term of a plea agreement that granted probation subject to defendant’s service of a specified jail term. Therefore, the jail term is not subject to modification without the consent of both parties. The judgment rendered by the Court of Appeal is reversed. ANALYSIS: The Court first held that went parties negotiate a plea agreement that grants probation conditioned upon service of a specified jail term, the jail term is not a standard condition of probation. Instead, the jail term constitutes a material term of the plea agreement and is therefore not subject to modification by the trial court without the consent of both parties. A plea agreement constitutes a contract between a defendant and the prosecutor to which the trial court consents to be bound. Therefore, if the trial court find the plea bargain unacceptable, the court should reject it, not violate it. Once the trial court accepts the terms of a plea agreement, it lacks jurisdiction to alter the terms unless both parties agree. Pursuant to section Penal Code section 1203.3 , the trial court may revoke, modify, or change is order suspending imposition or execution of the sentence during the period of probation, as warranted by the defendant’s conduct. However, the trial court’s statutory authority pursuant to section 1203.3 to modify conditions of probation during the probationary period does not include the authority to modify a negotiated condition included within the plea agreement which was entered into by both parties, accepted by the trial court, and incorporated into the judgment. A negotiated plea agreement is a contract between the prosecutor and the defendant approved by the trial court. Only a prosecutor is authorized to negotiate a plea agreement on behalf of the state. If a trial court finds the plea agreement acceptable, it may reject the agreement, but it cannot change the agreement without the consent of both parties. Once the court has accepted the plea agreement, it lacks jurisdiction to alter the terms of a plea bargain so that it comes more favorable to the defendant without the consent of both parties. In reversing the trial court, the Court of Appeal relied upon its previous decision in People v. Allen, 46 Cal.App.3d 583, 589 (1975), where it held that a plea agreement encompassing probation with conditions implicitly includes the possibility that probation may later be modified, revoke, or terminated by the trial court pursuant to section 1203.3. But the Court of Appeal in Allen conflated the trial court’s authority to modify probation conditions with the court’s authority to revoke probation based upon the defendant’s subsequent probation violation. It is true that when a plea bargain grant probation, a condition that is insignificant relative to the whole, like a standard condition of probation, may be imposed whether or not it was part of the expression negotiations. However, when the parties negotiate a plea agreement that grants probation conditioned upon the service of a specified jail term, the jail term is not a mere standard condition of probation and may not be treated like one. Instead, the jail term constitutes a material term of the agreement and cannot be altered solely on the basis of the trial court’s general authority to modify probation during the probationary period. For these reasons, the trial court in this case correctly determined that it lacked authority to grant defendant’s request to modify his jail term, and the appellate court erred in concluding otherwise. To the extent it is inconsistent with this decision, People v. Allen is disapproved. KEY RELATED CASES: TAGS: plea agreement, probation, collateral consequences, nunc pro tunc, Cal. Penal Code § 1203.3 Annotation by Laura Jacobsen |
| Jan 9, 2009 Annotated by diana teasland | Written by Sonia Valdez Defendant Luis Gregorio Segura was charged with the commission of a felony and was alleged to have suffered a prior felony conviction, with both the prior and the current offenses qualifying as “strikes” within the meaning of the “Three Strikes” law. He negotiated with the prosecutor a plea of no contest to the present charge in exchange for which the prior conviction allegation was to be dismissed and he was to be placed on probation on the condition, among others, that he serve 365 days in county jail. Prior to entering his plea, defendant waived his constitutional rights and acknowledged that if he was not a citizen of the United States, the one-year jail term would qualify the offense as an “aggravated felony” under federal law and require his deportation. When the federal authorities initiated deportation proceedings after defendant was released from jail, he applied to the trial court to “reduce” his jail term to 360 days, effective nunc pro tunc. The trial court denied defendant’s request on the ground the court was not authorized to modify a sentence prescribed pursuant to the parties’ plea agreement. On appeal, the reviewing court reversed, concluding the trial court possessed continuing jurisdiction during the period of probation and the authority to modify or revoke probation, including a change in the agreed-upon term of confinement that was imposed as a condition of probation. We granted review to determine whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify or revoke probation during the probationary period. As we shall explain, in this matter defendant was granted probation, for which he otherwise was ineligible in view of the prior conviction allegation, in exchange for entering into a plea agreement comprised of various terms, including confinement in the county jail for a specified number of days. He knowingly and voluntarily accepted those terms of the agreement. The trial court’s statutory authority to modify conditions of probation in the exercise of its jurisdiction over a probationer did not extend to modifying a material term of a plea agreement that bestowed the privilege of probation subject to defendant’s service of a specified jail term. Accordingly, we reverse the judgment rendered by the Court of Appeal. I On September 14, 2005, the parties entered into a plea agreement pursuant to which defendant agreed to plead no contest to the charge he inflicted corporal injury upon his spouse. The prosecutor agreed that the prior conviction allegation would be dismissed, that defendant’s present conviction would not be utilized as a “strike” conviction in a future case, and that defendant would be placed on five years’ probation, subject to the condition he serve the first 365 days in county jail. Defendant executed the printed form recording the parties’ plea agreement, placing his initials in appropriate boxes indicating he understood and agreed to waive his constitutional rights related to trial, and understood that if he was not a citizen of the United States, he “must expect” that his plea of no contest would result in deportation, exclusion from admission to the United States, and denial of citizenship or naturalization. At the hearing held on that date, and prior to defendant’s entry of his plea, the prosecutor reviewed and obtained defendant’s waiver of his trial-related constitutional rights, and also explained the collateral consequences of defendant’s plea. During the latter review, the prosecutor advised defendant: “Sir, if you’re not a citizen of the United States, this plea will have the consequences of deportation, exclusion from admission and denial of naturalization.” After explaining an additional consequence of the plea applicable if defendant was then on probation or parole in another matter, the prosecutor stated: “Do you understand the possible consequences of your plea?” Defendant, who is not a citizen of the United States, responded “Yes.” When released from jail, defendant promptly was detained by federal immigration authorities. On January 6, 2006, defendant’s attorney filed in the superior court an “ex parte motion to reduce sentence” seeking an “emergency” nunc pro tunc order or a writ of error coram nobis to modify defendant’s probationary jail term to 360 days. The motion was based upon the following information. The United States Department of Homeland Security (which encompasses the former United States Immigration and Naturalization Service) had commenced deportation proceedings against defendant pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) because he had been convicted of an “aggravated felony,” defined as a “crime of violence . . . for which the term of imprisonment [is] at least one year.” (Immig. & Nat. Act, § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).) That agency had set a hearing on his deportation for January 13, 2006. Defendant had been a “lawful permanent legal resident” of the United States for more than 15 years, owned a residence, and was the sole means of support for his wife and three children. Notice of the pending action of the federal authorities had been provided to the deputy district attorney who had participated in the plea agreement. At the January 6 hearing on defendant’s motion, the prosecutor argued that the one-year sentence was a term of the plea agreement, that defendant had obtained “a good deal,” that the prosecutor had agreed to dismiss defendant’s 1990 prior strike conviction as remote, but that since 1990 defendant had been convicted of a number of misdemeanor offenses and had been identified as being involved in gang activity. The superior court denied defendant’s motion, finding that the 365-day sentence was an integral part of the parties’ plea agreement and as such was not subject to subsequent modification by the court. Defendant appealed. The Court of Appeal reversed, agreeing with the argument, newly advanced by defendant, that section 1203.3 authorized the trial court to modify, by means of an order entered nunc pro tunc, any imposed condition of probation — including the negotiated requirement that defendant serve one year in the county jail —without obtaining the prior approval of both parties. The appellate court remanded the case, reasoning the trial court failed to recognize that the plea agreement did not preclude it from exercising its discretion to reduce the jail term during the period of probation. We granted the People’s petition for review. II In deciding whether the trial court was authorized in its discretion to modify the condition of defendant’s probation requiring a one-year county jail term, notwithstanding the parties’ plea agreement that expressly incorporated that condition, we briefly consider the nature and purpose of a plea agreement. Plea negotiations and agreements are an accepted and “integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.” (People v. Alvernaz (1992) 2 Cal.4th 924, 933; People v. Panizzon (1996) 13 Cal.4th 68, 79-80 (Panizzon).) Plea agreements 13 Cal.4th 68benefit that system by promoting speed, economy, and the finality of judgments. (Panizzon, supra, at p. 80; People v. Vargas (1993) 13 Cal.App.4th 1653, 1658; see also In re Chavez (2003) 30 Cal.4th 643, 654, fn. 5 [noting judgments based upon plea agreements “represent the vast majority of felony and misdemeanor dispositions in criminal cases,” and citing statistics indicating that less than 5 percent of felony cases are disposed of through felony convictions resulting from a court or jury trial].) As we previously have explained, the process of plea negotiation “contemplates an agreement negotiated by the People and the defendant and approved by the court. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604-608.) Pursuant to this procedure the defendant agrees to plead guilty [or no contest] in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. (People v. West, supra, 3 Cal.3d at p. 604.) This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People’s acceptance of a plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or kind (People v. West, supra, 3 Cal.3d at p. 608), or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the ‘bargain’ worked out by the defense and prosecution. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West, supra, 3 Cal.3d at pp. 607-608.) But implicit in all of this is a process of ‘bargaining’ between the adverse parties to the case — the People represented by the prosecutor on one side, the defendant represented by his counsel on the other — which bargaining results in an agreement between them. (See People v. West, supra, 3 Cal.3d at pp. 604-605.)” (People v. Orin (1975) 13 Cal.3d 937, 942-943 (Orin); see 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, §§ 303-304, pp. 522-525.) We further clarified in Orin that only the prosecutor is authorized to negotiate a plea agreement on behalf of the state. “[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor’s consent to the proposed disposition, would detract from the judge’s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge’s participation in the matter. [Citation.]” (Orin, supra, 13 Cal.3d at p. 943, fn. omitted; see People v. Turner (2004) 34 Cal.4th 406, 417-418; People v. Weaver (2004) 118 Cal.App.4th 131, 148-150; 4 Witkin & Epstein, Cal. Criminal Law, supra, §§ 305-306, pp. 525-527.) Because a “negotiated plea agreement is a form of contract,” it is interpreted according to general contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767, citing Civ. Code, § 1635 et seq.) Acceptance of the agreement binds the court and the parties to the agreement. (See, e.g., People v. Armendariz (1993) 16 Cal.App.4th 906, 910-911; People v. Woodard (1982) 131 Cal.App.3d 107, 110.) “ ‘When a guilty [or nolo contendere] 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.’ ” (Panizzon, supra, 13 Cal.4th at p. 80, quoting People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker); see In re Troglin (1975) 51 Cal.App.3d 434, 438.) For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. (See Orin, supra, 13 Cal.3d at pp. 942-943.) If the court does not believe the agreed-upon disposition is fair, the court “need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.” (People v. Godfrey (1978) 81 Cal.App.3d 896, 903; cf. People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338-1339 (Gifford) [by statute the trial court may withdraw its approval prior to sentencing, permitting withdrawal of the negotiated plea].) Although a plea agreement does not divest the court of its inherent sentencing discretion, “a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] ‘A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.’ [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, ‘[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.’ [Citation.]” (People v. Ames (1989) 213 Cal.App.3d 1214, 1217 (Ames); see People v. Tang (1997) 54 Cal.App.4th 669, 681-682; Gifford, supra, 53 Cal.App.4th at pp. 1337-1338; People v. Armendariz, supra, 16 Cal.App.4th 906, 910-911; People v. Godfrey, supra, 81 Cal.App.3d at p. 904.) As we have seen, in the context of a negotiated plea the trial court may approve or reject the parties’ agreement, but the court may not attempt to secure such a plea by stepping into the role of the prosecutor, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved. Because the trial court’s role in the plea-negotiation process is thus circumscribed, the People assert the court below lacked authority to modify the one-year jail term that had been made a condition of defendant’s probation by the parties’ plea agreement. The People rely upon Gifford, supra, 53 Cal.App.4th at pages 1337-1339 (trial court lacked authority to modify a plea agreement that included a specified prison term by substituting a probationary jail sentence; instead it was within the court’s authority to withdraw its approval of the agreement before imposing sentence) and Ames, supra, 213 Cal.App.3d at pages 1217-1218 (trial court lacked discretion to dismiss a special circumstance allegation admitted by the defendant pursuant to the parties’ plea agreement, in exchange for which the prosecutor had dismissed a second special circumstance allegation and promised not to seek the death penalty). The Court of Appeal in the present case concluded Gifford and Ames were “distinguishable in that they involve situations in which the trial court modified or contemplated modification of a negotiated prison term.” The Court of Appeal discerned in section 1203.3 the authority to modify any probationary condition, including a fixed jail term, whether probation has been granted by the court on its own initiative or negotiated by the parties and accepted by the court. Thus, we next consider the extent of the trial court’s statutory authority to modify or revoke probation. A trial court grants probation by suspending the imposition of a sentence or imposing a sentence and suspending its execution. (People v. Howard (1997) 16 Cal.4th 1081, 1092-1093.) During the period of probation, the court may revoke, modify, or change its order suspending imposition or execution of the sentence, as warranted by the defendant’s conduct. (§§ 1203.2, 1203.3.) In holding that section 1203.3 authorized the trial court to modify its order granting defendant probation conditioned upon his serving a one-year jail term, despite the inclusion of that condition in the plea agreement, the Court of Appeal in this case relied upon People v. Allen (1975) 46 Cal.App.3d 583 (Allen), in which the same appellate division held that a plea agreement encompassing probation with conditions implicitly includes “the possibility that probation may later be modified, revoked, or terminated, in accordance with section 1203.3.” (Allen, supra, at p. 589.) We undertake a review of Allen in some detail. In Allen, the parties’ plea agreement provided that on each of three counts, the defendant would be placed on probation, subject to a one-year consecutive probationary jail term. In view of the defendant’s exemplary conduct as a prisoner during the first one-year term, a hearing was held to consider his request to modify the terms of probation (§ 1203.3), and the trial court reduced one of the three one-year jail terms to nine months. The People appealed. In upholding the trial court, the Court of Appeal initially emphasized the rehabilitative purpose of probation and the breadth of the statutory language that conferred upon the trial court the authority “ ‘at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence,’ ” and “ ‘at any time when the ends of justice will be subserved thereby’ ” to terminate the period of probation and discharge the probationer. (Allen, supra, 46 Cal.App.3d at pp. 588-589, italics added in Allen.) The decision in Allen concluded that in view of the importance of the trial court’s authority to modify probation, “no plea bargain can be construed as calling for the abdication of that power without express language making it a condition of the prosecutor’s approval and permitting the prosecution to require the entire bargain be withdrawn in the event the court should decline to accept such limitation.” (Allen, supra, 46 Cal.App.3d at p. 589.) Because the record did not suggest the trial court was asked to “surrender its inherent power subsequently to modify probation if conditions warranted,” the reviewing court held that the trial court “complied with the statutory requirement that, having approved the plea, it ‘may not proceed as to such plea other than as specified in the plea.’ (Pen. Code, § 1192.5.) Defendant received probation under the precise conditions ‘specified in the plea,’ and to the extent that the analogy of a plea bargain to a contract with the court is apt, the court fulfilled its responsibilities.” (Allen, at p. 590.) It is evident the court in Allen conflated the trial court’s asserted authority to modify probation conditions that have been imposed pursuant to the stipulation of the parties and accepted by the court, with the court’s actual authority to revoke probation based upon the defendant’s subsequent violation of one or more conditions of probation. In the latter situation, it is well established that when “a defendant granted probation as part of a plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea.” (People v. Martin (1992) 3 Cal.App.4th 482, 487, italics added, citing People v. Bookasta (1982) 136 Cal.App.3d 296, 299-300, People v. Jones (1982) 128 Cal.App.3d 253, 262, Allen, supra, 46 Cal.App.3d at p. 590, and People v. Turner (1975) 44 Cal.App.3d 753, 757.) “ ‘A consummated plea bargain is not a perpetual license to a defendant to violate his probation. The plea bargain does not insulate a defendant from the consequences of his future misconduct. “A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever.” ’ ” (People v. Martin, supra, 3 Cal.App.4th at p. 487.) Finally, the court in Allen emphasized that the trial court’s authority to modify the probationary jail term is a function of its “exclusive exercise of judicial power” with regard to a probationer’s status after judgment has been imposed. (Allen, supra, 46 Cal.App.3d at p. 591.) Noting that “the decision to grant probation is a judicial act [citation], the exercise of which ‘cannot constitutionally be subordinated to a veto of the prosecutor,’ ” the court in Allen cited our cases invalidating, “as violative of the constitutional separation of powers,” statutes prohibiting the court (except with the prosecutor’s consent) from striking prior-conviction allegations, trying certain charges as misdemeanors, or finding certain persons eligible for narcotics treatment. (Ibid.) The court observed, “A judge cannot be required to bargain for retention of his [or her] independent judicial power. [Citations.]” (Ibid.) The circumstance that a plea agreement stipulates the defendant will be granted probation conditioned upon a specified term of incarceration does not deprive the trial court of all of its authority in matters of probation. We recognized in Walker, supra, 54 Cal.3d at page 1024, in considering a deviation from the terms of a plea agreement that assertedly violated the defendant’s due process rights, that when probation is granted in the context of a plea agreement, “[a] punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations.” (Id. at p. 1024.) But when, as in the present case, the parties negotiate a plea agreement that, among other express provisions, grants probation incorporating and conditioned upon the service of a specified jail term, the resulting term of incarceration is not — and may not be treated as — a mere standard condition of probation. Rather, the term of incarceration is in the nature of a condition precedent to, and constitutes a material term of, the parties’ agreement. As such, the jail term is not subject to subsequent modification without the consent of both parties, and cannot be altered solely on the basis of the trial court’s general statutory authority to modify probation during the probationary period. It follows that in the present case, the trial court correctly determined that under the circumstances it lacked authority to grant defendant’s request to modify his probationary jail term, and the appellate court erred in concluding otherwise. To the extent it is inconsistent with our decision in the present case, we disapprove People v. Allen, supra, 46 Cal.App.3d 583. As we have discussed, following entry of the judgment, the trial court retained its authority pursuant to section 1203.3 to revoke, modify, or change probation or modify conditions that were not made a part of the parties’ plea agreement. Nonetheless, as the trial court recognized, it was not at liberty to modify a condition integral to the granting of probation in the first place — a negotiated condition included within the plea agreement entered into by the parties, accepted by the court, and incorporated into the judgment. III After being released from jail, federal immigration authorities immediately initiated removal proceedings. In response, petitioner requested that the court retroactively modify the plea agreement and recognize a reduced jail term of 360 days so that his sentence no longer warranted deportation. The prosecutor who negotiated the plea agreement did not approve of this modification. Upon review, the Supreme Court agreed with the trial court below. In its decision, the Court first reviewed law relating to the nature and process of plea agreements. Relying on People v. West and People v. Orin, the Court conceived of a plea agreement as the result of bargaining between the adverse parties to the case, the substance of which is then approved by the court. The court further stated that the prosecutor is the only party permitted to negotiate a plea agreement on behalf of the state, quoting Orin in noting that “the court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over prosecutorial objection.” At the core of Orin’s argument was that court’s recognition that a judge should “remain detached and neutral in evaluating the voluntariness of the plea agreement and the fairness of the bargain to society as well as to the defendant.” The Court then moved on to a discussion of the plea agreement as a “form of contract.” Relying on People v. Pannizon, the Supreme Court emphasized the duty of the parties and the state to abide by the terms of the plea agreement. Though, as per Orin, the state may choose not to approve the terms of the agreement, the Supreme Court here ruled that a court may not withdraw its approval by later modifying the terms of an accepted plea agreement. Turning to prior judgments regarding a trial court’s ability to modify terms of probation, the Supreme Court addressed People v. Allen in detail. In Allen, the Court of Appeal ruled that “no plea bargain can be construed as calling for the abdication of [the trial court’s power to revoke, modify, or change terms of probation] without express language making it a condition of the prosecutor’s approval and permitting the prosecution to require the entire bargain be withdrawn in the event the court should decline to accept such limitation.” The Supreme Court recognized the trial court’s authority to unilaterally revoke its grant of probation on any ground stated in Penal Code § 1203.2(a), as noted in Allen. However, Allen wrongly expanded the trial court’s authority to unilaterally revoke mere standard conditions of probation and ruled that this authority also applied to material terms of the agreement. Accordingly, the Supreme Court overturned Allen in part and held that a material term of a plea bargain may not be modified without the consent of both parties. |
