(F)

Breach of Plea Agreement at Sentencing.   A breach of a plea agreement may occur at sentencing, as, for example, where the prosecution has agreed to stand silent or take or refrain from certain positions at the sentencing hearing.  

 

            While the government is to be held to the literal terms of its agreement, with all doubts construed in the defendant’s favor,[174] certain obstacles have been erected to gaining relief on this basis.  First, it has been held that when the government agrees to recommend a sentence pursuant to a plea bargain, it need not explain its reasons nor make the recommendation enthusiastically.[175]  Moreover, despite a plea agreement to make certain recommendations, the government has a duty to ensure that the court has complete and accurate information, enabling the court to impose an appropriate sentence.[176]  Thus, even if the prosecution has promised not to make any recommendation at sentencing, it can permissibly provide information regarding the offender’s background to the probation office.[177] 

 

            Upon a breach of the plea bargain at sentencing, one remedy is to invalidate the plea.  It has been noted that enforcement of the government’s promises made in the plea agreement is so fundamental that due process mandates that the sentence be vacated for breach of plea agreement, even if the breach may have been inadvertent.[178]  Another remedy is to grant specific performance of the plea bargain, which implies vacating the erroneous sentence, and re-sentencing the defendant in accordance with the plea bargain.  The remedy in this latter situation would eliminate the original sentence for immigration purposes (as well as criminal purposes).  This ground would suffice to resolve the immigration problem only where the sentence promised in the plea bargain itself avoided the immigration damage.

 

            The prohibition against ex post facto application of the law was violated by retroactive application of California's one-strike provision to the defendant's crimes, which were committed prior to its enactment.[179]

 

            Due process is violated by police conduct that amounts to sentencing manipulation whereby the police have discretion in the amount of drugs to use in a sting operation and select an amount for no other reason than to maximize the defendant's sentence.[180] 

[174] United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986).   The government ordinarily must bear responsibility for any lack of clarity.  United States v. Herrera, supra, 928 F.2d at 772; United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988); United States v. Anderson, 970 F.2d 602, 607 (9th Cir. 1992), amended, 990 F.2d 1163 (9th Cir. 1993).  Even if the agreement could be said to be ambiguous, it must still be construed against the government.  United States v. De La Fuente, 8 F.3d 1333, 1338 (9th Cir. 1993).

[175] See United States v. Benchimol, 471 U.S. 453, 455  (1985).

[176] See, e.g., United States v. Read, 778 F.2d 1437, 1441-42 (9th Cir. 1986) (prosecutor is obligated to reveal to sentencing judge facts concerning defendant’s activities between conviction and sentencing despite government’s plea agreement to “take no position on what sentence would be imposed” because parties could not have reasonably understood plea agreement to include a promise to withhold such information).

[177] United States v. Moldonado 215 F.3d 1046 (9th Cir. 2000).

[178] United States v. Hayes, 946 F.2d 230, 233 (3d Cir. 1991).

[179] People v. Alvarez (2002) 100 Cal.App.4th 1170, 122 Cal.Rptr.2d 859.

[180] People v. Smith (2002) 99 Cal.App.4th 138, 120 Cal.Rptr.2d 831. 

Other

CAL POST CON " SENTENCE " GROUNDS " SENTENCE MAY NOT BE BASED ON FACT FOUND NOT TRUE BY JURY
People v Lopez, 208 Cal.App.4th 1049, 146 Cal.Rptr.3d 113 (Aug. 22, 2012) (sentence cannot be based on a fact not found true by the jury).