912 F.2d 468
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Richard VAN BLANCHARD, Petitioner-Appellant,
v.
THE PEOPLE OF THE STATE OF CALIFORNIA, et al., Respondent-Appellee.
No. 89-55831.
United States Court of Appeals, Ninth Circuit.
Submitted July 12, 1990.*
Decided Aug. 29, 1990.
Before REINHARDT and CYNTHIA HOLCOMB HALL, Circuit Judges, and RE**, Chief Judge.
MEMORANDUM***
Richard Van Blanchard appeals pro se the district court's denial of his writ of habeas corpus. Blanchard sought the writ on the ground that the state court in which he was convicted, by granting the prosecution's motion to set aside his plea bargain, (a) deprived him of his liberty without due process, and (b) placed him in jeopardy twice for the same crime. Blanchard seeks specific performance of the plea bargain. We affirm.
The state court's denial of Blanchard's plea bargain at the time of sentencing conformed with California Penal Code Sec. 1192.5. The judge's initial acceptance of the plea was on the express condition that if, after reviewing the probation report on Blanchard's background, the bargain did not appear to be a fair one for everyone involved, the acceptance could be revoked. This reservation of final approval is explicitly sanctioned by section 1192.5. See People v. Stringham, 206 Cal.App.3d 184, 195 (1988); People v. Arbuckle, 22 Cal.3d 749, 754 (1978). Since section 1192.5 and cases interpreting it make plea agreements unenforceable prior to final judicial approval, it is not necessary to resolve the parties' dispute about whether Blanchard misled the prosecution in such a way that the prosecution would have an independent right to rescind the bargain. Section 1192.5 was properly applied and, as applied, is constitutional. See Mabry v. Johnson, 467 U.S. 504, 509 (1984); Santobello v. New York, 404 U.S. 257, 262 (1971).
The state court's rejection of the plea bargain and Blanchard's subsequent trial did not constitute double jeopardy. Jeopardy does not attach in plea-bargain cases until the plea is unconditionally accepted by the court. Since Blanchard's plea was never unconditionally accepted, jeopardy did not attach prior to his trial. See Mabry v. Johnson, 467 U.S. 504, 507-508 (1984).
Finally, because the rejection of Blanchard's plea agreement was proper, we need not decide whether a federal court may grant the specific performance of a state-court plea bargain, which is the relief which Blanchard seeks. See Santobello, 404 U.S. at 263.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4
Hon. Edward D. Re, Chief Judge, United States Court of International Trade, sitting by designation