If the government breaches the plea agreement, it violates the defendant’s right to due process and renders the plea involuntary.  See § 7.97, infra.[366]  The issue of breach of plea bargain is reviewed de novo.[367] 

 

            Due process requires the government to honor its agreements:

[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.[368]

 

            “Plea bargains are ‘contractual in nature and must be measured by contract law standards.’”[369]  As a result, when the agreement could be said to be ambiguous, it must be construed against the drafter — the government.[370]  The government is to be held to the literal terms of the agreement, and must bear responsibility for any lack of clarity.[371]  Construing ambiguities in favor of the defendant makes sense in light of the parties’ respective bargaining power and expertise.[372]

 

            A negotiated guilty plea is a “bargained-for quid pro quo,” so that either party will be in breach if it fails to live up to its obligations under the agreement.[373]  “When a guilty 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.”[374]  Where a defendant has breached a plea agreement, courts have found the government to be free from its obligations.[375]  The government may move to vacate a plea agreement upon the defendant’s breach.[376]

 

            The prosecution’s failure to comply with the essence of the plea bargain renders the defendant’s plea involuntary, and undermines the constitutional validity of the conviction.[377]  Under these circumstances, the conviction should be reversed, and the defendant should be allowed to enter a new plea.  The harmless error rule does not apply to the law of contractual plea agreements.  Where the government is in breach, there are several available remedies, including allowing the defendant to withdraw his guilty plea or ordering “specific performance” by the government.[378]

 

            When the prosecution offers a defendant a plea bargain, and the defendant timely accepts, the prosecution may not withdraw its offer absent exceptional circumstances.[379]  When the defendant has detrimentally relied on the contract, specific performance may be the only just remedy.[380]

 

            If the court, however, refuses to honor the plea bargain, it is obligated to offer the defendant an opportunity to withdraw the plea.[381]

[366] United States v. Franco-Lopez, 312 F.3d 984 (9th Cir. November 27, 2002) (government breached plea agreement by recommending against “safety valve” departure without independent finding by Probation Department that safety valve was not applicable).

[367] United States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994) (reversal for prosecution breach of plea agreement by failure to recommend a low-end sentence).

[368] Santobello v. New York, 404 U.S. 257, 262 (1971).

[369] United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988) (quoting United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir. 1986)).

[370] United States v. De la Fuente, 8 F.3d 1333, 1338 (9th Cir. 1993).

[371] United States v. Anderson, 970 F.2d 602, 607 (1992), amended, 990 F.2d 1163 (9th Cir. 1993) (citing United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986); United States v. Herrera, 928 F.2d at 772; United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988)).

[372] United States v. De La Fuente, 8 F.3d 1333, 1338 (9th Cir. 1993).

[373] United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988).

[374] “When a guilty 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.”  People v. Walker, 54 Cal.3d 1013, 1024 (1991).

[375] See, e.g., id. (citing United States v. Verrusio, 803 F.2d 885, 887-89 (7th Cir. 1986); United States v. Reardon, 787 F.2d 512, 516 (10th Cir. 1986)).

[376] People v. Vargas, 91 Cal.App.4th 506 (2001).

[377] See United States v. Corsentino, 685 F.2d 48, 51 (2d Cir. 1982); cf. United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985); see also Mabry v. Johnson, 467 U.S. 504 (1984).

[378] United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988) (citing United States v. Herrera, 640 F.2d 958, 960 (9th Cir. 1981)); see generally Fed. R. Crim. P. 32(e) (governing plea withdrawals); United States v. Anderson, supra, 970 F.2d at 608; People v. Mancheno, 32 Cal.3d 855 (1982).

[379] People v. Williams, 45 Cal.3d 1268 (1988).

[380] Brown v. Poole, 337 F.3d 1155 (9th Cir. August 4, 2003) (defendant entered into plea agreement upon prosecutor’s false promise on the record that with good behavior in prison, defendant would be released in half the time; the responsibility for the false promise lies with the prosecutor who made the offer and the judge who could have clarified that prosecutor had no power to make such a commitment; specific performance was the only remedy, since the petitioner had served 17 years, and “paid in a coin that the state cannot refund.”).

[381] Ellis v. U.S. Dist. Court for the W. Dist of Washington, 294 F.3d 1094 (9th Cir. June 21, 2002), opinion vacated by, 313 F.3d 1094 (9th Cir. December 5, 2002) (if trial court, after accepting  plea to lower charge, subsequently disapproves plea agreement, judge must give the defendant opportunity to withdraw plea; court is not ‘stuck’ with charge in plea agreement).

POST CON RELIEF - GROUNDS - BREACH OF PLEA BARGAIN - KEY CASES
   Santabello v. New York, 404 U.S. 257 (1971) (any promise by the prosecutor which is part of the inducement or consideration for a plea must be fulfilled).    United States v. Kramer, 781 F.2d 1380 (9th Cir. 198) (whether something is a "promise" for plea agreement breach purposes is to be viewed by an objective standard).    United States v. Revis, 969 F.2d 985 (11th Cir. 1992) (central question in determining whether plea agreement has been breached is how the terms of the agreement were "reasonably understood by the defendant.").    United States v. Giorgi, 840 F.2d 1022 (1st Cir. 1988) (government bears burden of clarifying any ambiguity in a plea agreement); United States v. McQueen, 108 F.3d 64 (4th Cir. 1997) (same).    United States v. Swineheart, 614 F.2d 853 (3d Cir. 1980) (Governments plea agreement promises still enforceable even when the promises are couched in terms of the Governments "sole discretion").

Ninth Circuit

POST CON RELIEF " GROUNDS " BREACH OF PLEA AGREEMENT " STANDARD OF REVIEW
United States v. Alcala-Sanchez, 666 F.;3d 571 (9th Cir. Jan. 10, 2012) (We have not been entirely consistent in our standards for reviewing a claim that the government breached a plea agreement.); citing United States v. Ellis, 641 F.3d 411, 417 (9th Cir.2011); United States v. Mondragon, 228 F.3d 978, 979"80 (9th Cir.2000). Compare, e.g., United States v. Schuman, 127 F.3d 815, 817 (9th Cir.1997) (de novo standard), with United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir.1996) (clearly erroneous standard).

POST CON RELIEF - GROUNDS - PLEA BARGAIN - BREACH IN LATER TRIAL
Davis v. Woodford, __ F.3d __ (9th Cir. Apr. 27, 2006) (in 1986 the state expressly agreed to treat the robbery conviction (which was based on 8 robberies) as only one "strike" for purposes of later recidivist sentencing, so counting that conviction as eight "strikes" violated the terms of defendants plea agreement; California Supreme Courts denial of Petitioners state habeas petition was based on an unreasonable determination of the facts in the light of the evidence presented in state court, 28 U.S.C. 2254(d)(2), and involved an unreasonable application of clearly established Supreme Court precedent, Santobello v. New York, 404 U.S. 257 (1971), within the meaning of 28 U.S.C. 2254(d)(1)).                 Use Note: interesting procedural move on the defendants part. He raised the issue in one habeas petition, apparently filed directly with the California Supreme Court, which, not surprisingly, denied it without comment. So there was no "reasoned state-court decision addressing" his claims, and the Ninth Circuit undertakes independent review of the record. This case emphasizes the absolute importance of obtaining the complete record of a prior conviction, including the transcript of the guilty plea. You never know!

POST CON RELIEF - GROUNDS - BREACH OF PLEA AGREEMENT
Davis v. Woodford, __ F.3d __ (9th Cir. Apr. 27, 2006) (petition for a writ of habeas corpus from a sentence for being a felon in possession of a firearm and evading a peace officer is granted pursuant to a claim that the use of one of defendants convictions as eight separate "strikes" for purposes of Californias Three Strikes Law breached a plea agreement).
http://caselaw.lp.findlaw.com/data2/circs/9th/0555164p.pdf

GUILTY PLEAS - RESCISSION OF PLEA AGREEMENT BY GOVERNMENT
United States v. Transfiguracion, 442 F.3d 1222 (9th Cir. Apr. 5, 2006) (government could not back out of plea agreement in drug case where the defendant has complied with the agreement by cooperating, even though the charges were ultimately dismissed; under rule that ambiguities in contracts "are to be construed unfavorably to the drafter," Blacks Law Dictionary 328 (7th ed. 1999)), the government was stuck with the results of its sloppy plea drafting).

POST-CON - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO ADVISE - WAIVERS OF POST-CONVICTION RELIEF
Washington v. Lampert, 422 F.3d 864 (9th Cir. Sept. 6, 2005) (ineffective assistance where trial counsel failed to explain consequences of the stipulated sentencing agreement, and the effect of waivers of post-conviction relief)
http://caselaw.lp.findlaw.com/data2/circs/9th/0435381p.pdf

Lower Courts of Ninth Circuit

POST-CON - JUDICIAL RECOMMENDATION AGAINST DEPORTATION
People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008) (agreement of state to JRAD does not constitute an express or implied promise that the conviction will not render the noncitizen deportable; the fact that the federal immigration laws changed retroactively to make 1987 manslaughter conviction deportable as an aggravated felony not sufficient to show that the original 1987 plea agreement had been violated).

CAL POST CON - GROUNDS - BREACH OF PLEA AGREEMENT
People v. Toscano, ___ Cal.App.4th ___ (2d App. Dist. Nov. 22, 2004) (guilty plea to spousal abuse reversed where trial court breached plea agreement by not permitting defendant to move to strike a prior conviction).
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/b172387.html