THE PEOPLE, Plaintiff and Respondent, v. WILLIE CALLOWAY, Defendant and Appellant. In re WILLIE CALLOWAY on Habeas Corpus, 29 Cal. 3d 666

Opinion THE COURT. Defendant appeals from a judgment sentencing him to state prison after his probation was revoked upon his admission of a violation of probation conditions. He also seeks relief from this judgment by writ of habeas corpus. In both actions relief is sought on the ground that defendant’s prison sentence contravened a plea bargain expressly precluding such a disposition. The People concede that the plea bargain was so violated and that the judgment must therefore be reversed. Accordingly, the only matter in dispute is the nature of the relief to which defendant is entitled.

Defendant contends he is entitled to specific performance of the plea bargain. We reject this contention. As we recently reiterated, a defendant is not entitled to specific performance of a plea bargain “absent very special circumstances.” (People v. Kaanehe (1977) 19 Cal.3d 1, 13 [136 Cal.Rptr. 409, 559 P.2d 1028].) There being no such circumstances here, the judgment must be reversed with directions to restore the status quo ante by permitting defendant to withdraw his admission of probation violation and to enter a new plea to that charge.

Defendant also contends he should be resentenced by a judge other than the one who approved the bargain and imposed the present sentence. We do not reach this contention, as Judge Robert H. London, who sentenced defendant, has retired from the bench. Accordingly, the matter is moot. We first examine the factual circumstances underlying this case. On November 2, 1976, defendant pleaded guilty to endangering the life or health of a child. (Pen. Code, § 273a, subd. (1); all further statutory references are to this code.) Proceedings were suspended and defendant was granted probation.

On February 21, 1978, a desertion hearing was held and probation was revoked. Defendant failed to appear at this hearing and a bench warrant was issued. On September 15, 1978, defendant was arraigned in municipal court on a misdemeanor battery charge. (§§ 242, 243.) On September 26, 1978, the bench warrant was recalled and probation was reinstated. A supplemental probation report was ordered. On December 21, 1978, the supplemental probation report was filed and probation was revoked. Defendant again failed to appear at this hearing and a bench warrant was again issued.

On February 21, 1979, defendant pleaded nolo contendere to the battery charge, proceedings were suspended and he was granted probation. On March 14, 1979, the bench warrant was recalled. Supplemental probation reports were ordered on that date and on April 26, 1979, and June 6, 1979.

The supplemental probation reports of September 26, 1978, March 14, 1979, April 26, 1979, and June 6, 1979, all recommended that probation remain revoked and that sentence be pronounced because of defendant’s drug and alcohol abuse, serious psychiatric problems, continued assaultive behavior, lack of cooperation with probation officer, repeated failures to report to probation officer and desertion from probation.

On August 9, 1979, pursuant to a plea bargain approved by Judge London, defendant admitted violating the terms of his probation, based on the battery conviction, in return for the following agreement by Judge London: No finding would be made as to other allegations of probation violation, namely, failure to obey instructions of probation officer, failure to report to probation officer and desertion from probation. Pursuant to

section 1203.03, defendant would be committed to the Department of Corrections for a period not to exceed 90 days for preparation of a diagnostic study. Defendant would not be sentenced to prison. On September 24, 1979, the

section 1203.03 report was filed, setting forth the diagnostic staff's unanimous opinion that a prison sentence was the most appropriate disposition. On November 21, 1979, Judge London, having read and considered the

section 1203.03 report, as well as the supplemental probation reports, ordered defendant’s probation to remain revoked and sentenced him to state prison for the term prescribed by law, with the observation that under the determinate sentencing law, defendant would have been sentenced to the middle term of two years. The judge also awarded defendant credit for 281 days actually served in custody and 93 days conduct credit.

The parties failed to remind Judge London that the prison sentence was contrary to the plea bargain; neither the deputy district attorney nor the deputy public defender attending the sentencing proceedings had appeared at the time the original bargain was struck. On November 28, 1979, defendant wrote a letter to Judge London asking for a new sentence hearing and calling his attention for the first time to the plea bargain. The letter was treated as an ex parte request for rehearing and denied. On May 27, 1980, defendant was released on bail pending appeal. We next review relevant case authority. In People v.

Johnson (1974) 10 Cal.3d 868 [112 Cal.Rptr. 556, 519 P.2d 604], the defendant, pursuant to a court-approved bargain, pleaded guilty to credit card forgery (§ 484f, subd. (2)) in return for a misdemeanor sentence, suspension of sentence, and a grant of probation. However, upon discovering that defendant had concealed his true name and past criminal record, the court sentenced him to state prison, contrary to the bargain. Because the court failed to advise defendant of his right under

section 1192.5 to withdraw his plea, we reversed the judgment. Stressing our “reluctance to create a right to specific performance of a plea bargain” in such a case, we held it sufficient to require the court to provide defendant with an opportunity to withdraw his plea. (10 Cal.3d at p. 873.) In People v. Kaanehe, supra, 19 Cal.3d 1, it was the People who sought specific performance.

Having obtained defendant’s guilty plea to grand theft (§ 487) and petty theft with a felony prior (§ 484, former § 667) in return for an agreement from the People to refrain from taking a position on sentencing, the prosecutor violated that agreement by arguing in favor of a state prison sentence by letter and during a conference in chambers. Upon being sentenced to prison, defendant appealed, contending, inter alia, that the trial court erred in refusing to permit him to withdraw his guilty plea after the prosecutor breached the plea bargain agreement.

The People responded that the plea bargain should be specifically enforced by rearraigning defendant, striking the prosecutor’s letter from the record, and ordering the People to comply with the agreement. Finding specific enforcement to be an inappropriate remedy under the circumstances, we noted that in Johnson we held that “a defendant should not be entitled to enforce an agreement between himself and the prosecutor calling for a particular disposition against the trial court absent very special circumstances.

The preferred remedy in that context is to permit a defendant to withdraw his plea and to restore the proceedings to the original status quo.” (19 Cal.3d at pp. 13-14.) We explained the rationale of Johnson: “Specific enforcement of a particular agreed upon disposition must be strictly limited because it is not intended that a defendant and prosecutor be able to bind a trial court which is required to weigh the presentence report and exercise its customary sentencing discretion.” (Id., at p. 14.) Because the remedy sought by the People in Kaanehe would not have bound the trial judge and thus did not raise the same concerns, Johnson was not controlling in that case.

Nevertheless, other factors—the apparently wilful and deliberate nature of the breach and the substantial possibility that specific performance would not completely repair the harm caused by the breach—led us to conclude that the defendant in Kaanehe should be permitted an opportunity to withdraw his guilty plea. Johnson does control in the present case, because ordering specific performance would prevent the trial court from exercising its sentencing discretion, forcing the court to impose a sentence it expressly rejected as inappropriate.

Defendant and amicus Los Angeles County Public Defender’s office nevertheless seek to distinguish Johnson on a number of grounds. Amicus’ argument proceeds as follows: Johnson was predicated upon

section 1192.5, a statute which sets forth the procedure to be followed in accepting or rejecting a plea bargain specifying punishment or exercise of sentencing power. That

section is, by its terms, applicable when a defendant enters a plea of “guilty or nolo contendere to an accusatory pleading charging a felony.” The

section is thus not applicable, amicus asserts, to admission of a probation violation. Therefore, amicus concludes, Johnson does not control this case. We disagree. Whether or not

section 1192.5 is applicable to plea bargains involving admission of probation violations, the principles underlying both that

section and Johnson itself apply here. We conceive of no reason why it would be more appropriate for an appellate court to interfere with a trial court’s exercise of its sentencing discretion in a case involving admission of probation violation than it would be in one involving a guilty plea to a felony. Amicus does not suggest such a reason. Defendant points out that in Kaanehe we did not address ourselves to a situation in which “the trial court itself limited its discretionary power, and then changed its mind,” as happened here.

Yet, if Kaanehe may be distinguished on this ground, Johnson cannot be, for in Johnson the trial court approved the bargain specifying punishment, and then, upon learning the defendant’s true name and criminal record, imposed a more severe sentence than had been agreed upon. Finally, recalling our statement in Kaanehe that a defendant is not entitled to specific performance of a plea bargain “absent very special circumstances,” defendant contends this case presents such circumstances.

Defendant asserts in favor of specific performance that he has spent approximately six months in state prison in violation of the plea bargain. However, this circumstance does not serve to distinguish Johnson, for in that case the defendant, who was promised he would be granted probation, apparently spent far more time in prison than defendant served in this case. In light of defendant’s inadequate performance on probation, fairness demands no more than that he be permitted an opportunity to withdraw his admission of probation violation and to plead anew to that charge.

The dissent stresses the fact that in the present case the trial court has violated its own “personal commitment” to defendant not to send him to prison. (Post, p. 674.) The record shows that the bargain was first negotiated between the People and defendant and was presented to the trial court for its approval. The trial court’s “personal commitment” merely constituted approval of the negotiated bargain. As we stated in Johnson, “the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea.” (P. 873.) That is precisely what occurred in the present case.

The authorities relied on by the dissent are inapposite. People v. Flores (1971) 6 Cal.3d 305, 309 [98 Cal.Rptr. 822, 491 P.2d 406], preceded our Johnson and Kaanehe decisions wherein we expressed our reluctance to order specific performance of repudiated plea bargains. Flores assumed without analysis that specific performance (by striking a sentence enhancement not previously explained to the defendant) was the only appropriate remedy in that case. Nor is Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433, 92 S.Ct. 495], and its progeny (e.g., Correale v.

United States (1st Cir. 1973) 479 F.2d 944, 949) controlling. Although the court in Santobello acknowledged that specific performance was an alternative remedy to withdrawal of the plea, the court further explained that “The ultimate relief to which petitioner is entitled we leave to the discretion of the state court . ...” (P. 263 [30 L.Ed.2d at p. 433].) Thus, due process principles do not invariably demand that specific performance be ordered; the state courts retain wide discretion to fashion an appropriate remedy.

In the present case, although defendant has served some prison time in violation of the original bargain, he will receive an appropriate credit for that time in the event he ultimately is sentenced to a term of incarceration following his withdrawal of his guilty plea. We believe that this alternative is a more appropriate one in light of the unanimous recommendation of the diagnostic staff favoring imposition of a prison sentence based upon defendant’s violation of probation, and the trial court’s ultimate acceptance of that recommendation as a proper one in this case.

The judgment is reversed with directions to permit defendant to withdraw his admission of probation violation and to enter a new plea to that charge. For any sentence imposed involving a period of incarceration defendant is entitled to appropriate credit for time served. The writ of habeas corpus is denied as unnecessary in light of reversal of the judgment. Before Bird, C. J., Tobriner, J., Mosk, J., Richardson, J., Newman, J., Stephens, J., and Woods, J.† Assigned by the Chairperson of the Judicial Council.