Filed 7/1/13




       IN THE SUPREME COURT OF CALIFORNIA


JOHN DOE,                               )
                                        )
              Plaintiff and Respondent, )
                                        )                           S191948
              v.                        )
                                        )                    9th Cir. No. 09-17362
KAMALA D. HARRIS, as Attorney           )
General, etc.                           )             N.D.Cal. No. 3:07-cv-03585-JL
                                        )
              Defendant and Appellant.  )
____________________________________)


        The federal Ninth Circuit Court of Appeals, which is considering a claim
by plaintiff that his plea agreement would be violated by requiring him to comply
with postconviction amendments to California‟s Sex Offender Registration Act,
Penal Code section 290 et seq.,1 requested an answer to the following question:
“Whether, under California law, the default rule of contract interpretation is
(a) that the law in effect at the time of a plea agreement binds the parties, or
(b) that the terms of a plea agreement may be affected by changes in law.” We
accepted the request and slightly rephrased the question as: “Under California law
of contract interpretation as applicable to the interpretation of plea agreements,
does the law in effect at the time of a plea agreement bind the parties or can the
terms of a plea agreement be affected by changes in the law?” We respond that


1       Except as indicated, all statutory references are to the Penal Code.




                                           1
the general rule in California is that the plea agreement will be “ „deemed to
incorporate and contemplate not only the existing law but the reserve power of the
state to amend the law or enact additional laws for the public good and in
pursuance of public policy. . . .‟ ” (People v. Gipson (2004) 117 Cal.App.4th
1065, 1070 (Gipson).) That the parties enter into a plea agreement thus does not
have the effect of insulating them from changes in the law that the Legislature has
intended to apply to them.
                                 BACKGROUND
       In 1991, plaintiff, who is proceeding under the pseudonym “John Doe,”
was charged with six counts of lewd and lascivious acts upon a child under the age
of 14 (former § 288, subd. (a)), an offense subject to the registration requirements
of former section 290 (as amended by Stats. 1989, ch. 1407, § 4, pp. 6191-6195).
In August of that year, Doe entered into a plea agreement under which he agreed
to plead nolo contendere to a single count in exchange for the dismissal of the
others. The written change of plea form, which Doe signed, recited that the
maximum penalties for Doe‟s conviction would be probation, participation in a
work furlough program, fines, testing as required by former section 290.2, and
registration as a sex offender under section 290. The superior court accepted the
plea, entered judgment convicting Doe of a single count of committing a lewd and
lascivious act on a child under the age of 14, and sentenced him in accordance
with the plea agreement.
       Doe registered as required by section 290. The statute at that time required
persons convicted of specified sex offenses, including former section 288,
subdivision (a), to register and to provide their fingerprints and photographs.
(Former § 290, subd. (e).) It also recited: “[T]he statements, photographs, and
fingerprints herein required shall not be open to inspection by the public or by any
person other than a regularly employed peace or other law enforcement officer.”

                                          2
(Former § 290, subd. (i).) But the Legislature later adopted “Megan‟s Law”
(§ 290.46, added by Stats. 2004, ch. 745, § 1, pp. 5798-5803), which among other
things, provides a means by which the public can obtain the names, addresses, and
photographs of the state‟s registered sex offenders. The Legislature further
specifically and expressly mandated that the public notification provisions of the
law are “applicable to every person described in this section, without regard to
when his or her crimes were committed or his or her duty to register pursuant to
Section 290 arose, and to every offense described in this section, regardless of
when it was committed.” (§ 290.46, subd. (m).) The Legislature accordingly
made the public notification provisions retroactive and thus applicable to Doe‟s
conviction.
       In 2007, Doe filed a civil complaint in the United States District Court,
asserting that requiring him to comply with the amended law‟s public notification
provisions would violate his plea agreement. As explained to us by the Ninth
Circuit, the district court, after hearing the testimony of the prosecutor, the defense
attorneys involved in the case and Doe, found the parties had not discussed section
290 during their plea negotiations except to acknowledge Doe was required to
comply with its requirements. In addition, the written change of plea form,
executed when Doe changed his plea from not guilty to nolo contendere, although
including a reference to Doe‟s obligation to register in accordance with section
290, did not state what the sex registration requirements were or what section 290
required Doe to do. And finally, neither the parties‟ plea negotiations, nor the
change of plea form, nor the plea agreement considered or addressed the
possibility future legislation might change the sex registration requirements.
       The district court nonetheless concluded that publicly disclosing any of
Doe‟s previously confidential sex offender registration information would violate
the terms of Doe‟s plea agreement, explaining, “one cannot reasonably interpret

                                          3
the language of the plea agreement, which reads „P.C. 290,‟ to mean [anything]
other than compliance with that section of the Penal Code, as it was written at the
time of the plea.” It found, further, that allowing Doe to withdraw his plea at “this
late point in time” would be “a useless exercise.” It therefore issued an injunction
barring the Attorney General from disclosing Doe‟s information, ruling Doe was
not subject to postconviction amendments to the registration requirements.
        The Attorney General appealed to the Ninth Circuit, which directed its
request to us, asserting that as a result of perceived inconsistencies between the
decisions in Swenson v. File (1970) 3 Cal.3d 389 (Swenson) and People v. Arata
(2007) 151 Cal.App.4th 778 and those in In re Lowe (2005) 130 Cal.App.4th
1405, Gipson, supra, 117 Cal.App.4th 1065, and People v. Acuna (2000) 77
Cal.App.4th 1056, the action presents an unsettled question of California law
which could determine the outcome of the case. (Doe v. Harris (2011) 630 F.3d
972.)
                                   DISCUSSION
                                          I.
        Our task is limited. We are not here concerned with the restrictions
imposed by the federal and state Constitutions on the Legislature‟s power to
legislate retroactively. (See, e.g., In re Marriage of Buol (1985) 39 Cal.3d 751,
756 [“[R]etrospective application of a statute may be unconstitutional if it is an ex
post facto law, if it deprives a person of a vested right without due process of law,
or if it impairs the obligation of a contract.”].) For present purposes, we assume
the Legislature‟s decision to make the amendments to the sex registration
requirements retroactive comports with federal and state constitutional
requirements, including due process, the prohibition against ex post facto laws,
and the federal and state contract clauses that prohibit states from passing laws
impairing the obligation of contracts.

                                          4
       We also do not assess the merits of the parties‟ factual assertions or
consider whether the district court‟s factual findings, as explained to us by the
Ninth Circuit, are supported by the evidence. (See Pooshs v. Philip Morris USA,
Inc. (2011) 51 Cal.4th 788, 793.) We accordingly accept as true the Ninth
Circuit‟s representation that neither the parties‟ negotiations nor the express terms
of the plea agreement addressed whether Doe‟s identity would remain forever
confidential or included an affirmative promise that Doe would be exempt from
changes in the law affecting persons convicted of his offense.
       Doe argues we must also accept as true what he characterizes as the district
court‟s factual determination that the plea bargain contained an implied promise
that the privacy protections contained in the law in effect at the time of his plea
would govern his future obligations. But although the district court‟s
determination of what the parties said, did, and subjectively believed are factual
findings, its determination of the legal effect of the parties‟ communications and
beliefs presents an issue of law. (See Garcia v. Truck Ins. Exchange (1984) 36
Cal.3d 426, 439; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866.)
Moreover, as we understand the situation, the Ninth Circuit intends to review the
district court‟s conclusion that the plea agreement‟s reference to section 290 was
in effect a promise that Doe would not be required to comply with any later
amendments to that section. It has requested our guidance on a rule of contract
interpretation to ensure its decision on that point is consistent with California law.
                                          II.
       We turn now to the issue that does concern us: whether the rule in
California is that the terms of a plea agreement incorporate existing law to the
exclusion of any retroactive amendments to the law or whether, as asserted by the
court in Gipson, supra, 117 Cal.App.4th at page 1070, plea bargains in California
are “ „deemed to incorporate and contemplate not only the existing law but the

                                          5
reserve power of the state to amend the law or enact additional laws for the public
good and in pursuance of public policy. . . .‟ ”
       The Ninth Circuit cited a possible tension between the rule stated in
Gipson, supra, 117 Cal.App.4th at page 1070, and our explanation in Swenson,
supra, 3 Cal.3d at page 394, that “[t]he parties are presumed to have had existing
law in mind when they executed their agreement [citation]; to hold that subsequent
changes in the law which impose greater burdens or responsibilities upon the
parties become part of that agreement would result in modifying it without their
consent, and would promote uncertainty in commercial transactions.” As we will
explain, the rules stated in those cases are compatible.
       The parties in Swenson had negotiated a covenant not to compete that
exceeded the scope then permitted by Business and Professions Code section
16602 and was thus, by operation of that section, “void” to the extent it exceeded
statutory limitations. (Swenson, supra, 3 Cal.3d at pp. 392-394.) We rejected a
claim by the plaintiffs that the scope of the covenant not to compete in the parties‟
agreement expanded when section 16602 was later amended to increase the
permissible scope of such covenants, applying the rule that “ „ “a bargain that is
illegal and void by reason of a statute existing at the time of making is not
validated and made enforceable by the subsequent repeal of the statute.” ‟ ”
(Swenson, at p. 393.)
       Swenson considered the effect of a change of the law on a commercial
contract. Nonetheless, a negotiated plea agreement is a form of contract and is
interpreted according to general contract principles. (People v. Segura (2008) 44
Cal.4th 921, 930.) Our explanation of the law in Swenson therefore cannot be
dismissed merely because it was stated in the context of a commercial transaction.
For purposes of the Ninth Circuit‟s inquiry, we assume without deciding that the
law stated in that case may be applied in the context of a plea agreement, although

                                          6
the specific policy identified there—avoiding uncertainty in commercial
transactions—is not an issue. But Swenson, unlike the other cases cited to us by
the Ninth Circuit, and unlike the present case, considered the effect on a
contractual agreement of a change in the law that was not intended to apply
retroactively. Our explanation there that the parties to a contract generally do not
contemplate that subsequent law will be incorporated into their agreement must be
understood in that context; it does not compel the further conclusion the parties
also understand or agree that by entering into the contract they have averted the
effect of retroactive legislation.
       Gipson, unlike Swenson, responded to a claim that the terms of a plea
agreement could not be altered through retroactive legislation. The defendant in
that case pleaded guilty at a time when section 667 provided a recidivist penalty of
five years for each prior serious felony conviction and a one-year enhancement for
each prior prison term served. The defendant committed a felony nine years later,
by which time section 667 had been amended to require the doubling of the base
term for every prior serious felony conviction. The defendant, asserting that
section 667 as it existed at the time of his plea had been incorporated into his plea
agreement, argued that sentencing him under the amended section violated federal
and state constitutional provisions prohibiting the impairment of contracts (U.S.
Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9). (Gipson, supra, 117 Cal.App.4th
at p. 1068.) The court rejected that argument, applying the rule stated in In re
Marriage of Walton (1972) 28 Cal.App.3d 108, 112: “When persons enter into a
contract or transaction creating a relationship infused with a substantial public
interest, subject to plenary control by the state, such contract or transaction is
deemed to incorporate and contemplate not only the existing law but the reserve
power of the state to amend the law or enact additional laws for the public good
and in pursuance of public policy . . . .” (See Gipson, at p. 1070.)

                                           7
       Both Swenson and Gipson recognize that the Legislature, for the public
good and in furtherance of public policy, and subject to the limitations imposed by
the federal and state Constitutions, has the authority to modify or invalidate the
terms of an agreement. Our explanation in Swenson that, as a general rule,
contracts incorporate existing but not subsequent law, does not mean that the
Legislature lacks authority to alter the terms of existing contracts through
retroactive legislation. Nor should it be interpreted to mean that the parties,
although deemed to have existing law in mind when executing their agreement,
must further be deemed to be unaware their contractual obligations may be
affected by later legislation made expressly retroactive to them, or that they are
implicitly agreeing to avoid the effect of valid, retroactive legislation. Gipson
explains that the parties to a plea agreement—an agreement unquestionably
infused with a substantial public interest and subject to the plenary control of the
state—are deemed to know and understand that the state, again subject to the
limitations imposed by the federal and state Constitutions, may enact laws that
will affect the consequences attending the conviction entered upon the plea. The
holdings in the cases are not inconsistent; both reflect California law. Gipson,
however, applies here, while Swenson does not.
                                          III.
       The remaining cases cited by the Ninth Circuit address a related but not
identical question: whether, despite the general rule, the facts and circumstances
of a particular plea agreement might give rise to an implicit promise that the
defendant will be unaffected by a change in the law. Thus, even though, as we
have explained, California law does not hold that the law in effect at the time of a
plea agreement binds the parties for all time, it is not impossible the parties to a
particular plea bargain might affirmatively agree or implicitly understand the
consequences of a plea will remain fixed despite amendments to the relevant law.

                                           8
(See, e.g., People v. Harvey (1979) 25 Cal.3d 754, 758; People v. Arbuckle (1978)
22 Cal.3d 749, 756.)
       Whether such an understanding exists presents factual issues that generally
require an analysis of the representations made and other circumstances specific to
the individual case. As explained previously, we interpret the Ninth Circuit‟s
question to reserve to itself the question whether some representation or
circumstance besides those presented to us provides support for the district court‟s
determination that an implied promise or understanding existed here. However, in
light of the nature of the Ninth Circuit‟s inquiry, the cases it cited, and its careful
explanation that there was no affirmative agreement between the parties that Doe
could avoid the effect of legislative changes to the sex registration requirements,
we consider whether, as Doe contends, California law holds that prosecutorial and
judicial silence coupled with a reference to a specific statute necessarily creates an
implicit promise or understanding the defendant will be unaffected by
amendments to that statute.
       As we have said, the general rule in California is that plea agreements are
deemed to incorporate the reserve power of the state to amend the law or enact
additional laws for the public good and in pursuance of public policy. As an
adjunct to that rule, and consistent with established law holding that silence
regarding a statutory consequence of a conviction does not generally translate into
an implied promise the consequence will not attach,2 prosecutorial and judicial



2      See, e.g., People v. Villalobos (2012) 54 Cal.4th 177, 185-186 (failure to
address the amount of a restitution fine in plea negotiations or during the plea
colloquy does not make the imposition of such a fine a violation of the plea
agreement); People v. McClellan (1993) 6 Cal.4th 367, 379 (trial court‟s failure to
advise the defendant of his statutory obligation to register as a sex offender,
                                                             (footnote continued on next page)


                                            9
silence on the possibility the Legislature might amend a statutory consequence of a
conviction should not ordinarily be interpreted to be an implied promise that the
defendant will not be subject to the amended law.
        The decision in In re Lowe, supra, 130 Cal.App.4th 1405, is consistent with
this rule. The court in that case rejected a defendant‟s argument that section
3041.2, which confers authority on the Governor to review parole decisions, did
not apply to him because that authority did not exist at the time of his plea
agreement. (Lowe, at p. 1425.) The court, finding no affirmative promises had
been made to the defendant about the person or persons who would determine his
parole suitability, concluded there had been “no violation of general contract law,
no violation of the plea bargain, and no violation of due process on the basis the
Governor was permitted to exercise his discretionary review power in this case.”
(Ibid.) The court thus concluded that the plea agreement‟s silence on the matter
did not translate into an implied promise the defendant would be unaffected by a
change in the law.
        In People v. Acuna, supra, 77 Cal.App.4th 1056, the defendant pleaded
guilty to committing a lewd act on a child under the age of 14 (§ 288, subd. (a))
and was sentenced to probation. At the time of the plea, a person found guilty of
that offense was entitled to the benefit conferred by former section 1203.4, which
allowed a defendant sentenced to probation, and who successfully completed that
probation, to withdraw the plea and have the case dismissed, thus expunging the
offense from his or her record. The defendant successfully completed probation,
but by that time section 1203.4 had been amended to make expungement

(footnote continued from previous page)

although error, did not transform the court‟s error into a term of the parties‟ plea
agreement).




                                          10
unavailable to persons who had been convicted of the defendant‟s offense. The
court rejected the defendant‟s claim that application of the amended statute to him
deprived him of the benefit of his plea bargain: “Acuna points to no express
provision in his plea bargain that mentions expungement. He cites Sharpe v.
Arabian American Oil Co. (1952) 111 Cal.App.2d 99, 102 [244 P.2d 83] for the
proposition that a missing portion of an agreement will be implied where the
missing portion was „so clearly a part of [the parties‟] understanding that the
agreement would be unworkable without it . . . .‟ But expungement was neither
clearly part of the parties‟ understanding nor was the agreement unworkable
without it. Even without expungement Acuna received a substantial benefit from
his plea bargain by avoiding a prison sentence.” (Acuna, at p. 1062.) The court‟s
holding, like the holding in In re Lowe, supra, 130 Cal.App.4th at page 1425, is
consistent with a rule that the absence of any discussion during plea negotiations
of the possibility of changes to the law does not translate into an agreement the
defendant will be unaffected by statutory amendments.
       In the last of the cases cited by the Ninth Circuit, People v. Arata, supra,
151 Cal.App.4th 778, the defendant, like the defendant in Acuna, had pleaded
guilty to committing a lewd act on a child under the age of 14 on the
understanding he would receive probation. He successfully completed probation
and, like the defendant in Acuna, sought expungement of his conviction under the
version of section 1203.4 existing at the time he entered his plea, arguing that
denying him the relief provided by that section would violate his plea bargain.
The court, observing that this court in People v. Harvey, supra, 25 Cal.3d 754, and
People v. Arbuckle, supra, 22 Cal.3d 749, recognized plea agreements may
include implied terms, found: “Section 1203.4 relief is part of the bargain made
with a probationer. [Citation.] By agreeing to give defendant probation, the plea
bargain implicitly included the promise of section 1203.4 relief as part of

                                         11
probation.” (Arata, at p. 787.) The court distinguished Acuna, finding that unlike
the situation there, the circumstances attending Arata‟s plea established that the
promise of expungement was a part of the parties‟ understanding and had provided
a significant inducement for the plea. (Arata, at p. 788.)
       The court in Arata did not find that as a general rule any law in effect at the
time of a plea agreement becomes a term of the agreement, nor did it find that the
parties to a plea agreement implicitly agree or understand the defendant will be
unaffected by changes in the law. After considering the circumstances present
there, the court reasoned that the parties understood that the defendant‟s decision
to plead guilty was motivated by a specific statutory benefit available only to
persons sentenced to probation, and thus had implicitly agreed the defendant
would receive that benefit. (People v. Arata, supra, 151 Cal.App.4th at p. 787.)
We are not called upon here to review the merits of the court‟s reasoning, as the
situation here is not the same. Unlike the statute at issue in Arata, section 1203.4,
section 290 has at all relevant times treated probationers and nonprobationers
alike. It therefore could not have provided Doe an inducement to plead nolo
contendere as a means of obtaining a benefit available only to persons receiving
probation.
       In sum, the rule in California is that a plea agreement‟s reference to a
statutory consequence attending a conviction, even when coupled with
prosecutorial and judicial silence on the possibility the Legislature might amend
the statute, does not give rise to an implied promise that the defendant, by pleading
guilty or nolo contendere, will be unaffected by a change in the law.




                                         12
                                  CONCLUSION
       For the reasons we have explained, the general rule in California is that a
plea agreement is “ „deemed to incorporate and contemplate not only the existing
law but the reserve power of the state to amend the law or enact additional laws
for the public good and in pursuance of public policy. . . .‟ ” (Gipson, supra, 117
Cal.App.4th at p. 1070.) It follows, also as a general rule, that requiring the
parties‟ compliance with changes in the law made retroactive to them does not
violate the terms of the plea agreement, nor does the failure of a plea agreement to
reference the possibility the law might change translate into an implied promise
the defendant will be unaffected by a change in the statutory consequences
attending his or her conviction. To that extent, then, the terms of the plea
agreement can be affected by changes in the law.

                                                  WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




                                         13
                  DISSENTING OPINION BY KENNARD, J.



       The United States Circuit Court of Appeals for the Ninth Circuit has asked
this court to answer a question of California law. As rephrased by this court, the
question is this: “Under California law of contract interpretation, as applicable to
the interpretation of plea agreements, does the law in effect at the time of a plea
agreement bind the parties or can the terms of a plea agreement be affected by
changes in the law?”
       Today, this court‟s majority holds that “requiring the parties‟ compliance
with changes in the law made retroactive to them does not violate the terms of the
plea agreement.” (Maj. opn., ante, at p. 13.) This broad language means that new
changes in the law must be followed even though they were not contemplated by
the parties when they negotiated the terms of their agreement, which is a form of
contract. I do not share the majority‟s view. I would hold that only if the new
legislation does not materially affect the plea agreement‟s terms can the parties be
required to comply with the new law. Put differently, a legislative change in the
applicable law binds the parties unless the new law so alters the plea agreement
that, had the parties known of it at the time of the plea, one or both would not have
entered into the agreement. Because I would answer the Ninth Circuit‟s question
differently than the majority, I dissent.




                                            1
                                           I
       In 1991, John Doe was charged with six counts of lewd and lascivious acts
on a child younger than 14 years. (Pen. Code, § 288, subd. (a) (all further
statutory references are to this code).) Later that year, he pled guilty to one of the
counts in exchange for dismissal of the other five. Under the agreement, Doe was
placed on probation and required to register as a sex offender. (§ 290.) At the
time of the plea, Doe‟s counsel correctly advised him that, under then existing law,
the registration information would be available only to law enforcement officers,
not the general public. (See former § 290, subd. (i), as amended by Stats. 1989,
ch. 1407, § 4, pp. 6191-6195.) The parties did not discuss the possibility of any
future law altering the confidentiality of the registration information.
       In 1994, three years after the plea negotiations here, the California Legislature
required the state Department of Justice to maintain a telephone number that members
of the public could call to find out whether a particular person was registered as a sex
offender. (Former § 290.4, added by Stats. 1994, ch. 867, § 4, p. 4396.) And in 2004,
the Legislature required the state Attorney General to create a publicly accessible
Web site containing the name, address, and photograph of anyone who, having been
convicted of certain sex crimes (including the one to which plaintiff Doe pled guilty),
had to register as a sex offender. (§ 290.46, added by Stats. 2004, ch. 745, § 1,
pp. 5798-5803.) The latter statute, by its express terms, applies retroactively to
anyone who, like plaintiff Doe here, had to register as a sex offender before enactment
of the new law. (§ 290.46, subd. (m).)
       Doe filed a complaint in federal district court, alleging that public
disclosure of his status as a convicted sex offender breached the terms of his plea
bargain, thereby violating his right to due process under the federal Constitution‟s
Fourteenth Amendment. (See 42 U.S.C. § 1983.) After the court enjoined the
state Attorney General from disclosing to the public plaintiff‟s status as a sex

                                           2
offender, the Attorney General appealed to the Ninth Circuit, which, before
deciding the case, asked this court to determine the applicable state law.
                                                II
       A plea agreement negotiated in a criminal case is a form of contract, and
therefore it is interpreted according to general contract principles. A trial court‟s
acceptance of the agreement binds the court as well as the parties to the
agreement. (People v. Segura (2008) 44 Cal.4th 921, 930-931 (Segura).)
       Helpful here is this court‟s decision in Swenson v. File (1970) 3 Cal.3d 389
(Swenson). At issue there was whether the enforceability of a covenant not to
compete, contained in a partnership agreement signed by partners in an accounting
firm, should be determined by the law in effect when the agreement was executed,
or when a departing partner breached it. The former, Swenson held, was the
proper answer. “[L]aws enacted subsequent to the execution of an agreement,”
Swenson said, “are not ordinarily deemed to become part of the agreement unless
its language clearly indicates this to have been the intention of the parties.”
(Swenson, supra, 3 Cal.3d at p. 393.) The court explained: “The parties are
presumed to have had existing law in mind when they executed their agreement
[citation]; to hold that subsequent changes in the law which impose greater
burdens or responsibilities upon the parties become part of that agreement would
result in modifying it without their consent, and would promote uncertainty in
commercial transactions.” (Id. at p. 394; see also Alpha Beta Food Markets v.
Retail Clerks Union (1955) 45 Cal.2d 764, 771 [“ „[A]ll applicable laws in
existence when an agreement is made . . . necessarily enter into the contract and
form a part of it . . . as if they were expressly referred to and incorporated.‟ ”].)
       The holding in Swenson that laws enacted after a contract is signed
ordinarily do not become part of the contract reflects the views of other state
courts. (See 11 Williston on Contracts (4th ed. 2012) § 30:23, pp. 289-290 [citing

                                            3
numerous cases holding that “as a rule of construction, changes in the law
subsequent to the execution of a contract are not deemed to become part of [the]
agreement unless its language clearly indicates such to have been the intention of
the parties”]; 17A Am.Jur.2d. (2004) Contracts, § 372, p. 360 [stating the
generally accepted view that “statutes . . . enacted subsequent to the execution of a
contract, which add burdens or impair the obligations of the contract, may not be
deemed to be a part of the agreement unless the language of the agreement clearly
indicates this to have been the intention of the parties”].) That general principle of
contract law is equally applicable to a plea agreement in a criminal case, as such
an agreement is a contract and therefore governed by general principles of contract
law. (See p. 3, ante.) Like the parties to any other contract, the parties to a plea
agreement are, to borrow a phrase from Swenson, “presumed to have had existing
law in mind when they executed their agreement.” (Swenson, supra, 3 Cal.3d at
p. 394.) Thus, “to hold that subsequent changes in the law which impose greater
burdens or responsibilities upon the parties become part of that agreement would
result in modifying it without their consent . . . .” (Ibid.)
       The majority here distinguishes Swenson, supra, 3 Cal.3d 389: “Swenson,
unlike . . . the present case, considered the effect on a contractual agreement of a
change in the law that was not intended to apply retroactively. Our explanation
there that the parties to a contract generally do not contemplate that subsequent
law will be incorporated into their agreement must be understood in that context
. . . .” (Maj. opn., ante, at p. 7, italics added.) Retroactive legislative changes, the
majority concludes, bind the parties to a contract, and hence also bind the parties
to a plea agreement. I disagree.
       Central to the holding in Swenson, supra, 3 Cal.3d 389, is the recognition
that because parties to a contract generally do not contemplate that later law will
be incorporated into their agreement, the new law should not become part of the

                                            4
earlier executed agreement. (See 11 Williston on Contracts, supra, § 30:19, p. 274
[“ „[T]he courts, in construing the existing law as part of the express contract . . .
are merely construing the contract in accordance with the intent of the parties.‟ ”].)
That general principle applies to any contract, irrespective of whether a later
change in the applicable law is prospective or retroactive.
       According to the majority here: “Our explanation in Swenson[, supra, 3 Cal.3d
389,] that, as a general rule, contracts incorporate existing but not subsequent law,
does not mean that the Legislature lacks authority to alter the terms of existing
contracts through retroactive legislation.” (Maj. opn., ante, at p. 8.) But the question
here is not whether the Legislature has such authority; rather, the question presented is
whether such a change will “ „bind the parties‟ ” (see p. 1, ante). It may well be that
the Legislature‟s retroactive alteration of a term of a contract will invalidate that
contract. For example, if two lawyers enter into an agreement that includes a fee-
splitting provision, and the Legislature thereafter retroactively makes such provisions
illegal, the entire agreement may become unenforceable. Similarly, if retroactive
legislation significantly alters the terms in a plea agreement, the alteration may
invalidate the entire agreement. (In that case, the guilty plea should be vacated and
any dismissed charges should be reinstated.)1
                                          III
       When a new law alters the terms of an executed plea agreement, the
continuing enforceability of the agreement depends, in my view, on whether the
alteration is material. As this court recently said, once a plea agreement has been
accepted by the trial court, “material terms of the agreement cannot be modified

1       Here, the federal district court ordered the California Attorney General not
to disclose plaintiff Doe‟s status as a registered sex offender to the general public.
The propriety of that remedy is not before this court, and I express no view on it.



                                           5
without the parties‟ consent.” (People v. Martin (2010) 51 Cal.4th 75, 80; see also
Segura, supra, 44 Cal.4th at p. 935 [because “the term of incarceration . . .
constitutes a material term of[] the parties‟ agreement . . . the jail term is not
subject to subsequent modification without the consent of both parties”].) But
when is a term in a plea agreement “material”? That question has so far not been
addressed by this court. (See Segura, supra, 44 Cal.4th at p. 935, fn. 10 [“We
need not determine as a general matter what constitutes a material term of a plea
agreement . . . .”].)
       In my view, a term in a plea agreement is material if it is essential to a
party‟s decision to enter into the agreement. Likewise, a criminal defendant who
is misadvised as to the consequences of a guilty plea can obtain relief only by
showing “that the defendant would not have entered the [bargained - for] plea of
guilty had the trial court given a proper advisement.” (In re Moser (1993) 6
Cal.4th 342, 352; see also Williams v. Puccinelli (1965) 236 Cal.App.2d 512, 516
[A contract is subject to rescission “ „where there is a harmful mistake as to some
basic or material fact which induced the plaintiff to enter into it. [Citations.] . . .
It must affect in some material way one of the essential elements of the contract,
. . . so that . . . the complaining party would not have entered into it except for his
mistaken belief.‟ ”].) My definition of materiality also reflects a standard legal
dictionary‟s definition of “material” as meaning “[o]f such a nature that
knowledge of the item would affect a person‟s decision-making; significant;
essential.” (Black‟s Law Dict. (9th ed. 2009) p. 1066, col. 1.) I would therefore
answer the Ninth Circuit‟s question by saying that a change in the law binds the
parties to a plea agreement unless the change is so significant that, had the parties
known of it at the time of the plea, one or both parties would not have entered into
the agreement.
                                                    KENNARD, J.

                                            6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Doe v. Harris
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX on request pursuant to rule 8.548, Cal. Rules of Court
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S191948
Date Filed: July 1, 2013
__________________________________________________________________________________

Court:
County:
Judge:

__________________________________________________________________________________

Counsel:

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, Michael Romano and Gary Dubcoff for
Plaintiff and Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Laurence K. Sullivan and Peggy S. Ruffra, Deputy Attorneys General, for
Defendant and Appellant.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Dennis P. Riordan
Riordan & Horgan
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472

Peggy S. Ruffra
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1362
