Aggravation of sentence based on dismissed priors convictions
In People v. Harvey (1979) 25 Cal.3d 754, the California Supreme Court held that a trial court could not impose an upper term sentence based upon the facts of an unrelated count dismissed as part of a plea bargain.
Harvey pleaded guilty to two counts of robbery in return for the prosecution's agreement to dismiss a third count charging an unrelated robbery. (Id. at p. 757.)
In sentencing Harvey to the upper term, however, the trial court expressly relied on a probation report containing an extensive discussion of the facts of the dismissed robbery count. (Id. at pp. 757-758.)
The high court reversed Harvey's sentence on the ground that the trial court's use of the facts of the dismissed robbery charge was prohibited by the plea agreement. (Id. at p. 758.)
The court reasoned:
"Under the circumstances of this case, it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant's sentence. Count three was dismissed in consideration of defendant's agreement to plead guilty to counts one and two. Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (People v. Harvey, supra, 25 Cal.3d at p. 758.)
In In re Knight (1982) 130 Cal.App.3d 602, the court applied Harvey's reasoning in holding that a trial court could not impose an upper term sentence based upon allegations of prior convictions dismissed as part of a plea bargain. Knight was charged with robbery and two firearm violations. The information alleged four prior felony convictions. Two of the prior felony allegations were dismissed as part of a plea bargain. (Id. at p. 603.)
In sentencing Knight to the upper term for the robbery, however, the trial court expressly relied on the two dismissed priors. (Id. at p. 604.)
The Court of Appeal vacated Knight's sentence on the ground that the trial court's use of the two dismissed prior felony allegations was prohibited by the plea agreement. (Id. at p. 605.)
Citing the Supreme Court's reasoning in Harvey, the court concluded that "the same implicit understanding exists in a bargain to dismiss prior convictions. We find no material distinction between a bargain to dismiss another substantive offense and a bargain to dismiss a charged prior." (In re Knight, supra, 130 Cal.App.3d at p. 605, fn. omitted.)
In People v. Haney (1989) 207 Cal.App.3d 1034, the court distinguished Harvey and Knight in holding that the trial court properly imposed an upper term sentence based upon priors that were not charged pursuant to a plea agreement.
In People v. Haney (1989) 207 Cal.App.3d 1034, the only express condition of the plea bargain relating to the defendant's priors was "that the prosecution would not charge any prior prison terms as enhancements . . . ." (Id. at p. 1036.)
The agreement did not expressly prohibit the use of the uncharged priors in sentencing.
The court rejected the defendant's argument that the plea agreement contained an implied term precluding the use of the priors as aggravating factors.
"Nothing before us suggests that the instant plea bargain impliedly contains a term precluding use of defendant's prior prison terms for aggravation. Such a term is unnecessary to give the agreement reasonable meaning, since, as we have noted, the defendant already received a significant benefit from the lack of pleaded enhancements. Nor can we think of any public policy requiring such a construction of the agreement. Nor are we aware of any 'custom' or 'usage' that would require us to find the implied term urged by defendant." (Id. at pp. 1039-1040.)
The court acknowledged that People v. Harvey (1979) 25 Cal.3d 754 and In re Knight (1982) 130 Cal.App.3d 602had held that an agreement to dismiss counts or priors contained an implicit understanding that the dismissed charges would not be resurrected at sentencing. Those cases were distinguishable, the court reasoned, because they "presumably relied on the custom and usage surrounding the use of dismissed charges" while Haney involved the use of uncharged priors. (Id. at p. 1040.)