Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC077189
Premo, J.
This, the second appeal arising from proceedings against defendant Dave Bautista (Dave) on charges brought in 2000 alleging that he possessed marijuana for sale (Health & Saf. Code, § 11359), was brought by the People after the trial court dismissed the action on remand. Dave’s conviction was affirmed in the first appeal, No. H024442 (formerly printed at People v. Bautista (2004) 115 Cal.App.4th 229), and we ordered a reference hearing on Dave’s contemporaneously brought writ petition. (No. H026395, Bautista I, collectively.) After the reference hearing, a second opinion in In re Bautista (H026395 (Sept. 22, 2005) [nonpub. opn] (Bautista II)), granted Dave’s petition for a writ of habeas corpus. We determined that Dave, who had been born in Mexico, suffered ineffective assistance of counsel in pleading guilty in 2002 to the charge in a plea bargain in which he was not advised that federal law required his mandatory deportation and exclusion from the United States. We remanded the matter to the superior court for withdrawal of the guilty plea and further proceedings consistent with our opinion in Bautista II.
Convenience, not disrespect is intended by use of first names (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 280) and in this opinion, the usage is consistent with that in Bautista I and Bautista II.
Further unspecified statutory references are to the Health and Safety Code.
Bautista II, No. H026395, dissent by Bamattre-Manoukian, J., was filed on September 22, 2005. We have taken judicial notice of the records in Bautista I and II.
“Deportation” means removal from the United States and does not necessarily preclude readmission. In contrast, “exclusion” means permanent removal and banishment, i.e., denial of reentry into the United States at any time or for any purpose. (See Barber v. Gonzales (1954) 347 U.S. 637, 640-642.) “Aliens subject to deportation, however, are not automatically or indefinitely subject also to exclusion. An alien in the United States becomes subject to exclusion only if actually deported; some deportable persons who agree to depart the United States at their own expense may have available a voluntary departure remedy not entailing exclusion from reentry.” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 208.)
Back in the superior court, defendant withdrew his previously entered plea to violation of section 11359. If Dave could plead to offering to transport, furnish, or sell marijuana, a violation of section 11360 (section 11360), the crime would not necessarily require Dave’s mandatory deportation (8 U.S.C. § 1227(a)(2)(A)(iii)), exclusion from the United States (8 U.S.C. § 1182(a)(9)(A)(i)), and preclusion from naturalization in the future (8 U.S.C. § 1101(f)(8)), although it would require him to serve more time in prison than the 16 months he served on the section 11359 conviction. The prosecutor, however, refused to offer Dave the opportunity to plead to a violation of section 11360. The trial court determined that this court had decided in Bautista II that there was a factual basis in the record for a plea to transporting marijuana in violation of section 11360, that the district attorney’s policy was to offer a marijuana defendant the choice of charges if there was evidence of both section 11359 and 11360 in the police reports, and that the district attorney’s refusal to give Dave the benefit of this policy violated his constitutional rights. The trial court dismissed the case and the People have appealed.
Section 11360 provides: “[e]xcept as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.” (Italics added.)
United States v. Rivera-Sanchez (9th Cir. 2001) 247 F.3d 905 held that a conviction of Health and Safety Code section 11360, subdivision (a), is not an aggravated felony under immigration law if the record of conviction (the complaint or amended complaint, plea, sentence and any admissions made at the time of plea but not the police report) shows that the defendant was convicted of “offering” to transport, sell, furnish, or give away a controlled substance. The basis for the decision is that “offering” to sell, etc., is equivalent to “solicitation” to commit that offense, and Congress did not make “solicitation” to commit an “aggravated felony” an “aggravated felony.” Coronado-Durazo v. I.N.S. (9th Cir. 1997) 123 F.3d 1322, 1324, held that solicitation to commit an offense relating to controlled substances in violation of a generic solicitation statute is not even a deportable offense of a crime related to a controlled substance offense. Notwithstanding, title 8 of the United States Code section 1182(a)(2)(C) makes inadmissible and requires the deportation of “[a]ny alien who the consular officer or the Attorney General knows or has reason to believe-- [¶] (i) is or has been an illicit trafficker in any controlled substance . . . or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance . . . .” A conviction is not required for inadmissibility or deportation; inadmissibility or deportation for controlled substances offenses may be established by the admission to the commission of such an offense. (See, e.g., Alarcon-Serrano v. I.N.S. (9th Cir. 2000) 220 F.3d 1116, 1119; Pondoc Hernaez v. I.N.S. (9th Cir. 2001) 244 F.3d 752, 756.) Hence, Dave’s future in the United States would remain in the hands of the immigration authorities.
FACTS
The facts are taken from the records of Bautista I and II and this appeal. In July 2000, Drug Enforcement Administration (DEA) agent Joseph Muenchow was in a San Jose storage facility with United States Army Sergeant James Harris and Harris’s narcotics-trained dog Rocko on an unrelated investigation. Rocko alerted on a hitherto unsuspected storage locker which was rented by Dave’s brother, Michael Bautista, and to which Dave had authorized access. A warrant search of the locker yielded about 100 pounds of marijuana. With the brothers’ consent, Muenchow searched their home. A small bag of marijuana was found in Michael’s bedroom and none in Dave’s bedroom. Dave admitted he and Michael shared the locker. Both defendants were charged with and pled guilty to violating section 11359, and both served 16-month prison terms. On their release, Michael, a citizen, went his own way; Dave was taken to El Centro by Immigration and Naturalization Service (INS) agents (now Immigration Control and Enforcement (ICE)) for deportation.
In his petition for a writ of habeas corpus, Dave contended that his lawyer’s representation fell below the standards for effective assistance of counsel because his counsel failed to advise him that deportation and exclusion from readmission to the United States were mandatory (8 U.S.C. § 1227(a)(2)(A)(iii)) for possession of marijuana for sale, an “aggravated felony” under federal law. (8 U.S.C. § 1101(a)(43)(B).) Trial counsel also failed to attempt to negotiate a plea bargain to a nonaggravated felony such as offering to sell, transport, or furnish marijuana. (§ 11360.) We affirmed the conviction but remanded the matter to the superior court for a factual reference hearing on the writ petition. When we received that record and the referee’s factual findings, and the referee’s clarification that the headings under which the factual findings were organized were not themselves factual findings, and briefs from the parties, we issued the writ of habeas corpus and remanded for further proceedings.
Back in the superior court in 2006, the district attorney’s office, believing there was no factual basis for the plea Dave requested, refused to offer a plea to a charge other than section 11359. The trial court found that Dave’s rights to equal protection and due process of law were violated by the refusal and dismissed the case.
ISSUES ON APPEAL
The People assert (1) that the trial court engaged in illegal plea bargaining with Dave; (2) the dismissal order was in excess of the trial court’s jurisdiction; and (3) the trial court “erred in holding that [this court] found factual basis [sic] to support transportation charge [sic] as a matter of fact and law that mandated a nunc pro tunc amendment to allow [Dave] to plead to that charge.”
ILLEGAL PLEA BARGAINING AND ACT IN EXCESS OF JURISDICTION
The People claim the trial court engaged in illegal plea bargaining because the People “did not agree to the arrangement by which the charge would be dismissed unless the People offered the [d]efendant to ‘plead up’ to a charge of transportation of marjuana [sic]. The trial court erred by entering into an illegal plea bargain and dismissing the information without the People’s consent.”
In plea bargaining, “the defendant agrees to plead guilty 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. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the People’s acceptance of a plea to a lesser offense than that charged, either in degree [citations], or kind [citation], or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information. . . . [I]mplicit 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. [Citation.] [¶] However, 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.” (People v. Orin (1975) 13 Cal.3d 937, 942-943.)
Here, there was no “arrangement” between the trial court and Dave. The trial judge did not substitute himself as the representative of the state in a negotiation process nor did he agree to a disposition of the case over prosecutorial objection. The trial court stated as much when it ruled on defendant’s motion to dismiss the charges: “I cannot mandate, issue the charges in this case, but I am empowered to dismiss the charges that are present . . . in the event of a violation of due process or equal protection or the appearance of unfair prosecution.” There was no amended information in this case; the original information charging a violation of section 11359 was the information before the court for trial. Thus, there was no “amendment” over the prosecution’s objection, nor was there a plea of guilty to a violation of section 11360. No guilty or nolo contendere plea was offered or entered and no “agreed upon” sentence was imposed.
Since there was no illegal plea bargain, the trial court did not dismiss the information as part of it. No obfuscation surrounded the trial court’s declaration that it was empowered to dismiss the charges for a violation of due process or equal protection or the appearance of unfair prosecution. That is what the trial court found as bases for the dismissal. The People’s refusal to apply to Dave its policy of allowing a marijuana defendant to choose whether to plead to a violation of either section 11359 or 11360 when, as the trial court determined, it was the law of the case after Bautista II that there was a factual basis for a section 11360 plea in the record was the reason for the dismissal. The dismissal was not an act in excess of the trial court’s jurisdiction.
“FACTUAL BASIS” AND “SOME EVIDENCE”
The People also contend the trial court erred in holding that this court had concluded in Bautista II that, as a matter of fact and law, that there was a factual basis to support a transportation charge and that an amendment to allow Dave to plead to the charge was, therefore, mandated by Bautista II.
In Bautista II, we adopted the referee’s finding of “some evidence” of transportation in the July 7, 2000 report written by Agent Levey, which consisted of codefendant Michael’s statement, after being told that his and Dave’s fingerprints were all over “the stuff” in the locker, that he and Dave had obtained it from some individuals on San Carlos Street and that he and Dave had moved it to the storage locker.
In fact, Ms. Hamilton, the deputy district attorney, commented at the more recent remand hearing that the statement about the fingerprints “was a lie the police used.” The only evidence in the record besides Levey’s report was Dave’s testimony at the reference hearing, “I think I remember that at the beginning they said that--I believe they questioned in court they said they didn’t have any fingerprints.” The reference hearing clerk’s transcript contained a “Report of Drug Property Collected, purchased or seized” stamped “FINGERPRINT ANALYSIS REQUESTED.” The referee made no mention of reviewing the preliminary hearing transcript after Dave’s testimony, however it contains Agent Muenchow’s testimony that latent fingerprints found on the containers of marijuana or the packaging material taken from the lockers did not match those of Dave or Michael.
The district attorney’s marijuana plea policy was also spelled out at the reference hearing. Sam Giammona, the deputy district attorney in charge of the case in 2002, and Stacie Lawson, the supervisor of the Major Narcotics Vendor Program (MNVP) in 2002 and in 2006, testified that in marijuana cases, if both possession for sale and transportation are alleged, a defendant may choose to plead guilty to either charge. Giammona testified that in Dave’s case, since Dave was in custody, Giammona had to file charges within 48 hours of the arrest and had access only to the police reports generated within that time. He did not necessarily have access to reports of the special agents. Based on the reports he had, he did not believe there was a factual basis for a transportation charge, and that is what he communicated to Lawson. Giammona testified that if he had believed there was a factual basis for a section 11360 violation in Dave’s case, he would have considered it if defense counsel asked him.
The search pursuant to a warrant of the locker took place on July 6; the consent search of the Bautista home and codefendants’ arrests took place on July 7, and Levey’s report was written on July 7.
In Bautista II, we stated that there was “some evidence” of “transportation” in Levey’s report; that the MNVP’s practice in marijuana cases was to allow the defendant to choose between sections 11359 and 11360 provided there was evidence of both offenses, and Giammona had testified that if trial counsel had called to his attention some evidence of transportation he would have considered a section 11360 offer in line with the MNVP practice. (Bautista II, supra, atpp. 15-16.)
At the remand hearing called for by Bautista II, Ms. Hamilton stuck to her office’s position by refusing to offer to allow Dave to plead to a violation of section 11360. Part of the People’s adhesiveness seems to be based on their view of Dave’s criminal record. In their brief, the People write: “As will be shown, this court was misled by the petition which falsely stated that Defendant had no prior convictions, when in fact, he has a lengthy criminal history with numerous convictions for drunk driving and driving on a suspended license.” In the original appeal and habeas petition, there was no information on any convictions except for a mention in an affidavit in the writ petition of two arrests (possibly only one) in Fresno County in 1994. Dave’s criminal record in its entirety is set out in footnote 9 infra. Dave’s list of Vehicle Code convictions which occurred between 1994 to 1999, appeared to be relatively minor to Michael Mehr, the immigration expert witness, and are neither lengthy nor numerous when compared to those of the population of defendants whose cases have passed through this court and therefore the district attorney’s office.
Dave’s prior record of Vehicle Code violations was not in the record in Bautista I. Dave’s expert witness on immigration law, Michael Mehr, referred to Dave’s lack of a record during the habeas proceedings. Finding no probation report in the record on appeal, we stated in Bautista I that Dave had no convictions except the one we had just affirmed and had only two arrests in 1994 in Fresno and Coalinga (both cities in Fresno County) for using a false compartment. (Health & Saf. Code, § 11366.8.) No disposition was listed for the Fresno case and the Coalinga case was dismissed. Marijuana and $4,000 were seized in the Coalinga case. (The People say now in their brief that defendant’s criminal record “reflects only one such arrest in 1994.”) After the opinion was filed, the People appended Dave’s rap sheet to their opposition to the writ petition for consideration at the reference hearing.
Furthermore, in assessing the comparability of the conduct of Dave and Michael from the police reports and the affidavits and testimony in the record, it appears that Dave was a minor participant compared to Michael. Giammona admitted mixing up Dave’s activities with Michael’s and Lawson stated she got her knowledge of the facts from Giammona. It was Michael who made the contacts and conducted negotiations with Guadalupe Lenu of Tijuana who owned the marijuana and, through Michael, paid for its storage. Michael rented the storage locker. Michael dealt with Jose Barragan, whom Giammona identified as “a person of great interest” in the narcotics prosecution unit. Dave testified his dealings with Barragan were limited to taking phone messages for Michael if he was not home. Giammona recognized Barragan’s modus operandi in using individuals who knew very little about anything other than their own tasks to carry out Barragan’s schemes. (Bautista II, supra, p. 5, fn. 3.) When codefendants’ home was searched, Dave had no marijuana in his bedroom; Michael did.
Dave signed the storage unit rental application apparently at Michael’s request, was named as a person with access to the unit but apparently never individually accessed it, received $1,000 from Lenu via Michael for his trouble, and, according to Michael, helped move the “stuff” into the unit.
The prosecutors made much of their “fairness” in denying a noncitizen an immigration accommodation which would be valueless to a citizen because “[i]f [Dave] . . . asked [for a plea] that had more attractive prospects in terms of immigration consequences I could not have accommodated him because then I would be . . . giving a noncitizen the benefit that a citizen would have and that’s not fair.” In fact, a state prosecutor cannot “give” a noncitizen defendant discretionary immigration relief of “Cancellation of Removal”; removal proceedings under section 240 of the Immigration and Nationality Act are held in Immigration Court.
The prosecutors did not explain why insisting on treating unequally-situated defendants identically with catastrophic collateral consequences to one of them would not be unfair. More concretely, citizen Michael, from appearances more culpable in this case, could accept the benefit of the shortest term in prison (16 months for section 11359) with no immigration aftereffects while the same bargain offered to less-culpable noncitizen Dave carried with it the certainty of banishment and exile, and loss of home, adopted country, and family. (See In re Resendiz (2001) 25 Cal.4th 230, 250-251.) Exacting a longer term in prison from a noncitizen for the benefit of possibly (not probably) avoiding deportation and exclusion has been used as a fair accommodation based on individualized consideration of the circumstances of each defendant and each defendant’s involvement in the given crime.
Ms. Hamilton was also adamant that Michael’s statement in the police report could not provide a factual basis for a plea to a section 11360 violation since Michael’s statement inculpating his codefendant would not have been admissible in the original trial of the case. As for the admissibility into evidence of Michael’s statement on retrial, although the People had Michael on their witness list, Ms. Hamilton stated he had not been served, and she believed that Michael’s statement would still be inadmissible in the retrial although defense counsel thought it would.
See Bruton v. United States (1968) 391 U.S. 123 [violation of defendant’s Sixth Amendment rights by admitting nontestifying codefendant’s statement implicating defendant]; People v. Aranda (1965) 63 Cal.2d 518 [court must sever trials of codefendants if codefendant’s statement implicating defendant cannot be excised]; People v. Brown (1978) 79 Cal.App.3d 649 [Aranda rule applies even if the codefendant testifies]; People v. Song (2004) 124 Cal.App.4th 973 [nontestifying codefendant’s extrajudicial statement violates defendant’s Bruton and Aranda right of cross-examination].
The trial court, after spirited debate, ruled that Bautista II had held that there was a factual basis in the record for transportation and that the court and parties were bound by the holding as law of the case. The trial court added, “absent some explanation other than that the district attorney believes the Court of Appeal was wrong, and there really isn’t a factual basis at all. . . . [¶] . . . [¶] . . . I find that the defendant’s equal-protection and due-process rights have been violated.”
“ ‘The doctrine of the law of the case is this: That where, upon an appeal, the [S]upreme [C]ourt, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’ [¶] The principle applies to criminal as well as civil matters [citations], and to decisions of intermediate appellate courts as well as courts of last resort. . . . Application of the rule is now subject to the qualifications that ‘the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision.’ [Citations.] [¶] The doctrine, as the name implies, is exclusively concerned with issues of law and not fact.” (People v. Shuey (1975) 13 Cal.3d 835, 841-842, overruled on another point as recognized by People v. Bennett (1998) 17 Cal.4th 373, 389.)
Our discussion in Bautista II evidently misled the trial court and the parties concerning the issues of law it decided. Bautista II misled the court by slipping into the use of “transportation” as a shorthand designation for section 11360, rather than “offering to transport.” In so doing, Bautista II misdirected the participants in the remand hearing to focus upon the existence of a factual basis for a charge of transportation and to emphasize the content of the police reports. But as Bautista II stated in explaining Dave’s desperation for a section 11360 plea bargain, a plea to offering to transport is what would give him at least a chance to avoid deportation and exclusion. (Bautista II, supra, at pp. 10-11.)
Moreover, Bautista II does not hold that there is factual basis for an offering-to-transport plea in the record. Bautista II discussed whether the requirement of Penal Code section 1192.5 for “the taking of a bargained-for plea” could be complied with in this case, namely, whether “ ‘an inquiry . . . [could] be made of the defendant to satisfy [the court] that the plea is freely and voluntarily made, and that there is a factual basis for the plea.’ ” We quoted People v. Watts (1977) 67 Cal.App.3d 173, 179-180 (Watts) and People v. McGuire (1991) 1 Cal.App.4th 281, 283 (McGuire) on development of a factual basis, “for example, by having the accused describe the conduct that gave rise to the charge, or by making specific reference to those portions of the grand jury transcript or preliminary hearing transcript which provide a factual basis for the plea, or by eliciting information from the defense attorney or the district attorney” (Watts, supra, 67 Cal.App.3d at pp. 179-180) or by a general stipulation of the parties that there is a factual basis for the plea. (McGuire, supra, 1 Cal.App.4th at p. 283.)
The Supreme Court in People v. Holmes (2004) 32 Cal.4th 432, 441, footnote 8, specifically declined to address whether McGuire was correct in concluding that counsel’s stipulation, without reference to a specified document, was sufficient to satisfy the trial court’s duty to inquire into the factual basis.
We then considered whether a factual basis could have been (or could in the future be) stated for the record. Bearing in mind that no plea was taken and that no offer of proof as to a factual basis for a plea was actually in the record, we applied the facts of this case to the procedures mentioned in Watts and McGuire. As examples of what could be done, not as what had been done, we stated that Dave could have stated a factual basis for the plea, the parties could have referred to Levey’s DEA report containing Michael’s statement and the fact that Dave’s and Michael’s fingerprints were “all over” the “stuff,” the parties could have stipulated, or the parties could have agreed on another technique as suggested by Watts. “[T]he law ‘does not require the trial court to interrogate a defendant personally in an element by element manner about the factual basis for his guilty plea. . . . He may, in fact, enter a plea of guilty even though he protests his innocence.’ ” (People v. Calderon (1991) 232 Cal.App.3d 930, 935.) In Calderon,the trial court asked the defendant if he intended to kill the victim. The defendant’s affirmative response was held to be a sufficient factual basis. If an offering-to-transport plea was offered to Dave, the authority of Calderon would allow the court to establish a factual basis by questioning him about offering to move the marijuana. (Ibid.)
We recognize that the reference to Michael’s statement in Levey’s DEA report was misleading since it would not provide a factual basis for offering to do any of the acts the statute proscribes.
Giammona and Lawson applied charging principles to this case. However, after the original charges are filed, when negotiating a plea bargain, “[t]he parties to a plea agreement are free to make any lawful bargain they choose” (People v. Buttram (2003) 30 Cal.4th 773, 785), keeping in mind that “it is desirable that in a plea bargain the lesser offense to which a defendant pleads be one ‘reasonably related to defendant’s conduct.’ (ABA Standards, standard 3.1(b)(ii).) ‘In this way, the defendant’s record . . ., while not a completely accurate portrayal of his criminal history, will not be grossly misleading and thus will not likely result in inappropriate correctional treatment or police suspicion.’ (ABA Standards, p. 68.) In common practice and under the ABA standard a reasonable relationship between the charged offense and the plea obtains when (1) the defendant pleads to the same type of offense as that charged (the ABA Standards refer to this as a ‘categoric similarity’), or (2) when he pleads to an offense which he may have committed during the course of conduct which led to the charge.” (People v. West (1970) 3 Cal.3d 595, 613.) As we stated in Bautista II,section 11360 is reasonably related to section 11359. No authority has come to our attention that states that in plea bargaining, the prosecution may not in good faith negotiate a plea to an offense unless it could have been charged in the first 48 hours of the investigation.
Dave suggests vindictive prosecution motivated the district attorney’s office in refusing to apply to him its policy of allowing a marijuana defendant a choice of pleas. Dave also believes that the prosecution’s immoveable stance was adopted to punish him for exercising his rights to seek (and obtain) relief in the appellate court. He states that meting out a different treatment among equally situated defendants for no apparent reason also offends a defendant’s right to equal protection (cf. Myers v. Ylst (9th Cir. 1990) 897 F.2d 417) and constitutes prosecutorial misconduct.
It must be established that Dave is not asserting the usual type of prosecutorial vindictiveness (which is also known as discriminatory prosecution). “[A] defendant’s claim of discriminatory prosecution goes not to the nature of the charged offense, but to a defect of constitutional dimension in the initiation of the prosecution. [Citation.] The defect lies in the denial of equal protection to persons who are singled out for a prosecution that is ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ [Citation.] . . . [¶] Unequal treatment which results simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement.” (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 831-832.)The familiar settings for vindictiveness claims are singling out select groups or persons for prosecution (e.g., Murgia v. Municipal Court (1975) 15 Cal.3d 286 [harassing prosecution of UFW members]) or increasing the charges after the defendant either rejects a plea bargain (Bordenkircher v. Hayes (1978) 434 U.S. 357) or invokes a statutory remedy (Blackledge v. Perry (1974) 417 U.S. 21 [after defendant convicted of misdemeanor and asks for trial de novo, prosecutor gets felony indictment for same conduct]; In re Bower (1985) 38 Cal.3d 865 [after defendant charged with second degree murder successfully moves for mistrial, prosecutor retries for first degree murder]). Defendant does not claim that any of these categories apply to him.
Considering that the proceedings on remand were based on the misconception that existence of a factual basis for transportation was determined by this court and was therefore the law of the case, we cannot say that the district attorney’s office was acting other than out of conviction that this court’s ruling in Bautista II was erroneous. The United States Supreme Court “has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.” (Bordenkircher v. Hayes, supra, 434 U.S. at p. 364.)Nevertheless, “as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas.” (Corbitt v. New Jersey (1978) 439 U.S. 212, 223.) Whether a prosecuting agency approaching this case with an unjaundiced eye would consider Dave’s level of participation and immigration status to be worthy of individualized consideration in comparison to Michael’s is not within the purview of this appeal.
DISPOSITION
The judgment is reversed and the matter is remanded for proceedings consistent with this opinion.
WE CONCUR: Rushing, P.J., Elia, J.
At the reference hearing, Dave’s original defense counsel, Victor Vertner, testified, “I know he had a prior criminal record that consisted of misdemeanors, which by the way this, because this whole thing is, of course I’ve been named in the Court of Appeals decision [Bautista I] I guess I have a dog in the hunt so to speak, but the petition for writ of habeas corpus either intentionally or recklessly misled the Court of Appeals. You read that petition for writ of habeas corpus and on page 21 [and page 33] appellate counsel indicates David had no prior record except for the instant conviction. . . .” Appellate counsel objected to this statement as nonresponsive and the referee sustained the objection.
The rap sheet showed convictions of Vehicle Code violations for the period 1994 to 1999. Dave had three driving under the influence convictions (Veh. Code, § 23152, subds. (a), (b)) in 1996, 1997, and 1999, and two driving with a suspended license and one driving without a valid license (id., §§ 14601.5, 12500, subd. (a), 14601.2, 14601, subd. (a)). Going chronologically, there was a September 1994 open container infraction (id., § 23222, subd. (b)); a guilty plea in 1996 to driving on a suspended license with the dismissal of possession of a deadly or dangerous weapon and being under the influence of a controlled substance (Pen. Code, § 12020; Health & Saf. Code, § 11550); and in 1997, besides the driving under the influence conviction and driving without a valid license, defendant failed to prove financial responsibility (Veh. Code, § 16028, subd. (a)). In 1998, he drove on a suspended license; and in 1999 as previously stated, he drove under the influence and also had a conviction for driving on a suspended license with a prior. According to Mehr’s testimony, Dave’s convictions for the Vehicle Code violations were not serious enough to make him ineligible for cancellation proceedings in the immigration case. This information is taken from Bautista II, pages 2 through 3, and footnote 2, and pages 6 through 7.
Even now, aside from Vertner’s accusation, there is nothing in the record to support a conclusion that appellate counsel either intentionally or recklessly misled this court in filing the petition for a writ of habeas corpus. Nor did the referee make this finding. The referee stated in answer to Dave’s letter requesting clarification of the “bold, solid capitalized language,” that the report’s headings, including the fourth one stating, “THE APPELLATE COURT MAY HAVE BEEN MISLED,” were not findings of fact but were meant as descriptive headings for organizing the findings actually made.
Vertner’s and the district attorney’s suggestion we were misled resurfaced in the People’s opening brief in this appeal. Appellate counsel wrote: “As will be shown, this court was misled by the petition which falsely stated that Defendant had no prior convictions, when in fact, he has a lengthy criminal history with numerous convictions for drunk driving and driving on a suspended license.” “Numerous” drunk driving convictions turn out to be three, and “numerous” driving on a suspended license convictions turn out to be two with one driving without a valid license conviction. This court recounted these facts in Bautista II on pages 2 through 3, footnote 2.