Opinion
D041764.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. JIM LEE COMSTOCK, Defendant and Appellant.
Jim Lee Comstock was ordered to perform 30 days of public service work and pay restitution of $38,403 as conditions of probation after he pled guilty to burglary (Pen. Code,[] § 459). Comstock appeals, contending the trial court coerced him into abandoning a motion to withdraw his plea. We reverse and remand to allow Comstock to file a motion to withdraw his plea.
All statutory references are to the Penal Code unless otherwise specified.
PROCEDURAL AND FACTUAL BACKGROUND
On March 19, 2002, Channon Mendenhall reported her unit at a self storage facility had been burglarized. Mendenhall observed some of her missing property in Comstocks storage unit. Police asked Comstock, who the day before had reported a burglary of his storage unit, to come to the facility. When Comstock opened his unit, Mendenhall identified some of her property inside the unit. Pawn tickets were found during a search of the residence of Comstocks girlfriend. The items that were pawned belonged to Mendenhall.
As part of a negotiated plea, Comstock pled guilty to burglary. In exchange, the prosecution agreed to dismiss charges of grand theft and receiving stolen property and to not oppose local time. The trial court indicated on the record it would suspend imposition of sentence and place Comstock on three years probation on condition that he complete 30 days of public service work, and pay restitution to the victim. Additionally, the court said it would reduce the burglary conviction to a misdemeanor (§ 17, subd. (b)(3)) if restitution had been established and paid at sentencing.
At the sentencing hearing, Comstock, through his attorney, sought to have his guilty plea withdrawn. The court told defense counsel:
"Why dont you tell him one thing from me right now. I take you off the case, I put someone else on the case, I deny the motion, hes going to jail. Simple. We can cut out this crap and we can do this today and he gets his 30 days public work service. If he walks out that door today, the deal is off the table.
"You may want to talk with him a little bit, because its staying here. I dont want to tell you how its going to go down on that motion no matter who gets appointed, but I would want [you] to talk to your client a little bit."
A recess was taken, and Comstock did not make a motion to withdraw his plea. The court suspended imposition of sentence, placed Comstock on probation for three years, on condition he serve seven days in local custody (time served), perform 30 days of volunteer work in the public service program, pay a $200 fine, pay a $200 restitution fine and pay restitution to the victim in an amount to be determined after a hearing.
At the hearing, Mendenhall presented evidence that the value of her stolen property was $38,403, but she was willing to settle the matter for $13,000. The court set the restitution judgment at $38,403, subject to the condition that the difference of $25,403 ($38,403 - $13,000) would be satisfied upon payment of $ 13,000 if Comstock complied with a monthly payment schedule of $350 through December 2003 and $500 thereafter.
DISCUSSION
This case is governed by the following law and legal principles.
The right to trial by jury in criminal cases is constitutionally protected under federal and state law. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) "[O]nly the most compelling reasons can justify any interference, however slight, with an accuseds prerogative to personally decide whether to stand trial or waive his rights by pleading guilty." (People v. Hill (1974) 12 Cal.3d 731, 768; overruled on other grounds in People v. DeVaughn)
A defendant may be permitted to withdraw a guilty plea upon a showing of good cause. (§ 1018.) A defendant also has the "established right to withdraw his or her guilty plea if [a] plea bargain is not honored." (People v. Casillas (1997) 60 Cal.App.4th 445, 450.)[]
"`"A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound."" (People v. Armendariz (1993) 16 Cal.App.4th 906, 911.)
A sentencing court may not increase a defendants sentence to punish him for asserting his constitutional or statutory procedural rights. (See In re Lewallen (1979) 23 Cal.3d 274, 278-281.) In Lewallen, the defendant rejected the prosecutors offer of a reduced sentence on one count in exchange for a guilty plea on the count. The defendant was acquitted on that count but convicted on other counts. The defendants sentence exceeded the one offered under the rejected plea bargain. The Supreme Court vacated the sentence, concluding the trial courts remarks indicated the sentence was improperly based on the defendants rejection of the plea bargain and election to go to trial.[] (Id. at pp. 279-281.) "Appellate courts in California and in other jurisdictions have vacated sentences when the trial court has apparently used its sentencing power, either more severely or more leniently than the norm, in order to expedite the resolution of criminal matters." (Id. at p. 279.) "A court may not . . . impose a sentence that conflicts with a defendants exercise of his constitutional right to a jury trial." (Id . at p. 281.)
At the sentencing hearing, the trial court in Lewallen said, among other things: "`I think I want to emphasize theres no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybodys time, and whats he got to lose. And as far as Im concerned, if a defendant wants a jury trial and hes convicted, hes not going to be penalized with that, but on the other hand hes not going to have the consideration he would have had if there was a plea." (Id. at p. 277.)
In this case, the trial courts troublesome remark was made when Comstock said he wanted to withdraw his guilty plea. In essence, the trial court expressly told Comstock that if he proceeded to make the motion to withdraw the plea, the motion would fail and the court would sentence him to jail time rather than volunteer public service work. The courts successful effort to dissuade Comstock from making a motion to withdraw his plea was improper; the courts action was "at odds with its judicial obligation to remain neutral and detached." (People v. Collins (2001) 26 Cal.4th 297, 309.) The courts comment presented a "substantial danger of unintentional coercion." (People v. Orin (1975) 13 Cal.3d 937, 943.)
Furthermore, as the Attorney General points out, there was no basis for the trial courts comment because the court was without power to impose a jail term if Comstock unsuccessfully sought to withdraw the guilty plea. Generally, a defendant cannot be sentenced to a punishment more severe than that agreed upon. (See § 1192.5; People v. Masloski (2001) 25 Cal.4th 1212, 1217.)[]
We reject Comstocks alternative argument that he was entitled to withdraw his plea because he did not receive the benefit of having his conviction reduced to a misdemeanor upon payment of restitution. (See People v. Walker (1991) 54 Cal.3d 1013, 1024.) The imposed sentence did not represent a substantial change in the bargain.
As the Attorney General concedes, the case must be reversed and remanded to superior court to allow Comstock to make a motion to withdraw his guilty plea under section 1018. We express no opinion on whether such a motion will be successful. To avoid the appearance of unfairness or impropriety, we will exercise our power to remand the matter to a different judicial officer. (Code Civ. Proc., § 170.1, subd. (c).)
DISPOSITION
The judgment is reversed and the case is remanded to a different judicial officer of the superior court to allow Comstock an opportunity to move to withdraw his plea. If (1) Comstock does not file a motion to withdraw his plea within 30 days after the remittitur has been issued or (2) Comstocks motion to withdraw his plea is denied, the court is directed to reinstate the judgment.
WE CONCUR: OROURKE, J., AARON, J.