People v. Superior Court (Felmann)

59 Cal. App. 3d 270, 130 Cal. Rptr. 548, 1976 Cal. App. LEXIS 1642

• Court: California Court of Appeal
• Decided: June 18, 1976
• Docket: Civ. 48302
• Status: Published

Opinions

Opinion

THOMPSON, J.

This petition for writ of review, prohibition, or mandate asserts that Penal Code section 1192.5 precludes a trial judge from entering into a sentence bargain dispositive of a criminal proceeding unless the prosecuting attorney consents, We conclude that: (1) section 1192.5 does preclude the trial judge from entering into a bargain in the sense of negotiating a more lenient sentence than would be imposed after trial in return for a plea of guilty or nolo contendere; (2) Penal Code section 1192.5 cannot constitutionally be construed to prevent a trial judge from indicating what sentence he will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by a plea; and (3) the record here is equivocal as to which of those procedures was followed by the trial court. Accordingly, we order that a peremptory writ of mandate issue directing the trial court to clarify its record and proceed as the clarification dictates.

Defendant, real party in interest, was charged with four counts of grand theft and four counts of forgery. Defendant entered his plea of not guilty to the charges and the matter was set for trial. On the day of trial, defendant requested the court to entertain a plea of no contest pursuant to Penal Code section 1192.5. He conditioned his plea upon suspension of proceedings and the grant of probation conditioned upon restitution and a fine of $1,000 with no time in jail. Defendant’s counsel described his understanding of the prosecution’s evidence disclosing the details of the crimes charged; he represented that defendant was married and lived with his children in the area, that his only prior conviction was for soliciting customers from the sidewalk into a jewelry store, that defendant had a cardiac condition, and that he was in the jewelry business. Defendant specified that, if after reviewing the probation report the court were not inclined to impose sentence in the terms outlined, the nolo contendere plea could be withdrawn and the matter proceed to trial.

Citing the portion of Penal Code section 1192.5 which requires the prosecutor’s consent to a conditional plea, the prosecuting attorney challenged the power of the court to accept the plea in the form it was offered. The district attorney also objected to the trial court’s ordering a pre-plea probation report pursuant to Code of Civil Procedure section 131.3. He noted that crimes similar to those with which defendant was charged were being committed in all parts of California so that any sentence imposed would have a deterrent effect and hence a significance beyond the particular case.¹

The trial judge commented that accepting defense counsel’s representation of the defendant’s record, background, and heart condition, “this is not a proper case for the defendant to be sentenced to the state prison.” The court indicated it would accept the conditional plea, stating “I am not accepting this to save court time, but as a practical application of the law.”

After appropriate Tahl waivers, defendant’s plea of no contest was accepted as to all counts. The prosecution sought a prerogative writ from this court to prevent the trial court from proceeding further on the conditional plea. Because of the importance to the administration of the criminal law of the issues here raised, we issued our alternative writ and stayed proceedings in the trial court.

Penal Code section 1192.5, as pertinent, states: “Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, the plea may specify the punishment . . . and may specify the exercise by the court ... of other powers legally available to it. [¶] Where such plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced ... to a punishment more severe than that specified in the. plea and the court may not proceed as to such plea other than as specified in the plea.” The section specifies that the court’s approval of the plea is not binding and that approval may be withdrawn if at the hearing on probation or time for pronouncement of judgment the court’s further consideration indicates a different disposition. If the approval of the court is withdrawn, the defendant may withdraw his plea and enter any other plea available by law.

Application of Penal Code section 1192.5 to the situation presented by the case at bench requires the accommodation of two sets of California Supreme Court doctrine. Both sets deal with separation of powers (Cal. Const., art. Ill, § 3). One doctrine defines the scope of exclusive judicial authority in the area of sentencing and disposition of charges, while the other delineates the sweep of executive power in the filing of criminal charges and the negotiation of their disposition with a defendant willing to negotiate.

While the legislative branch of government bears the responsibility and power to define criminal offenses and to prescribe punishment in mandatory or alternatively permissible forms, the imposition of sentence within the legislatively determined limits is exclusively a judicial function. (People v. Navarro (1972) 7 Cal.3d 248, 258 [102 Cal.Rptr. 137, 497 P.2d 481].) Hence, the exercise of sentencing power cannot be made subject to the consent of the district attorney because the requirement of that consent is an injection of the executive into the province of the judicial branch of government. (People v. Tenorio (1970) 3 Cal.3d 89, 95 [89 Cal.Rptr. 249, 473 P.2d 993].) Similarly, once the executive power has been exercised by the filing of a criminal charge “the process which leads to acquittal or to sentencing is fundamentally judicial in nature.” (People v. Tenorio, supra, at p. 94; People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 65 [113 Cal.Rptr. 21, 520 P.2d 405].) Thus, separation of powers mandates that a statute may not constitutionally require the consent of the prosecuting attorney to judicial action striking prior convictions to mitigate the sentence imposed (People v. Tenorio, supra, at p. 94), determining that a charged offense should be tried as a misdemeanor rather than a felony (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127 [95 Cal.Rptr. 524, 485 P.2d 1140]), civilly committing a defendant to a narcotics rehabilitation program (People v. Navarro, supra, 7 Cal.3d 248, 259), granting probation in an unusual case where, except in unusual cases, probation may not be granted after conviction of a defined offense under particular circumstances (People v. Clay (1971) 18 Cal.App.3d 964 [96 Cal.Rptr. 213]), or ordering a defendant charged with a narcotics offense to be “diverted” into a pretrial program of treatment and rehabilitation (People v. Superior Court (On Tai Ho), supra, 11 Cal.3d 59, 61).

As the process which leads to acquittal or sentencing is a function exclusively vested within the judicial branch of government, the charging function of the criminal process is the sole province of the executive. (People v. Sidener (1962) 58 Cal.2d 645, 650 [25 Cal.Rptr. 697, 375 P.2d ]; overruled on other grounds in People v. Tenorio, supra, 3 Cal.3d at p. 91.) It is equally the function of the executive to engage in any negotiation with the defense by which a lenient disposition of the charge made is secured without trial. (People v. Orin (1975) 13 Cal.3d 937, 942 [120 Cal.Rptr. 65, 533 P.2d 193].) “[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over prosecutorial objection.” (People v. Orin, supra, at p. 943.) The “plea bargaining” process foreclosed to the judicial branch of government includes the acceptance of a plea of guilty in return for “clement punishment.” (People v. Orin, supra, at p. 942.)

The exclusive authority of the judiciary in the matter of sentencing and process on the one hand, and the equally exclusive authority of the executive with respect to charging of crimes and negotiating the disposition of charges on the other, are not inherently inconsistent. Accommodation is possible while preserving both principles.

A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right. Leniency in return for a plea of guilty or no contest must be negotiated by the defendant with the prosecutor. If then a bargain is struck, the court has the power to approve or disapprove it.

But a court may indicate to a defendant what its sentence will be on a given set of facts withoht interference from the prosecutor except for the prosecutor’s inherent right to challenge the factual predicate and to argue that the court’s intended sentence is wrong. If the prosecutor’s argument does not persuade and if the facts as developed are as assumed for the purpose of indicating the sentence, that sentence may then be imposed. If not, then defendant has the option of going to trial or accepting harsher treatment on a guilty or nolo contendere plea. Unless form is exalted over substance, the facts which are the assumed basis of sentence may be expressed in the form of the basis of a conditional plea reserving the defendant’s right to withdraw the plea and go to trial in the event the court determines that the facts recited are not confirmed in a fashion which enables it to sentence the defendant in accord with the condition. Substance and not form must control. Hence, any construction of Penal Code section 1192.5 which requires prosecutorial consent to the permissible scope of judicial power in sentencing rather than consent to the defendant’s offer of a bargain of a plea for lenient treatment is an unconstitutional invasion by the executive of power reserved to the judicial branch. (See People v. Orin, supra, 13 Cal.3d 937, 949.)²

Thus, in the case at bench, we must determine whether the trial judge determined to proceed on defendant’s conditional plea of no contest solely in the exercise of his sentencing discretion or whether the judge determined to accept an offer of the defendant to enter his plea in return for more lenient treatment than he otherwise would have received. In the first instance, the judge would be exercising a judicial power with which the executive could not interfere. In the second, he would unconstitutionally be invading the province of the executive branch which had not accepted defendant’s offer.

The record is ambiguous on the key factual issue.³ The judge stated that if the facts were as represented by defendant a state prison sentence was inappropriate, but did not address the matter of county jail incarceration as a condition of probation uninfluenced by the plea of no contest. We cannot, on the record before us, determine whether the trial court’s acquiescence in defendant’s proposal that there be no jail time was based upon an exercise of sentencing discretion or was in consideration of defendant’s plea. The matter must be returned to the trial court to correct the ambiguity.⁴

The alternative writ and stay order are discharged. Let a peremptory writ of mandate issue directing the trial court to rehear and reconsider defendant’s conditional plea and to accept it only if to do so involves no consideration of more lenient treatment solely because of the plea.

Lillie, Acting P. J., concurred.

1 The dissent’s language concerning a situation in which a court denies the prosecutor the right to argue the severity of sentence to be imposed discusses an issue not involved here. The trial court permitted prosecutorial comment at the hearing.

2 “[Sentencing discretion wisely and properly exercised should not capitulate to rigid prosecutorial policies manifesting an obstructionist position toward all plea bargaining irrespective of the circumstances of the individual case. As the calendars of trial courts become increasingly congested, the automatic refusal of prosecutors to consider plea bargaining as a viable alternative to a lengthy trial may militate against the efficient administration of justice, impose unnecessary costs upon taxpayers, and subject defendants to the harassment and trauma of avoidable trials. [Citation.] A court may alleviate this burden placed upon our criminal justice system if this can be accomplished by means of a permissible exercise of judicial sentencing discretion in an appropriate case.”

3 Contrary to the dissenting opinion, the trial court did not enter into a “bargain” agreeing to impose a particular sentence irrespective of the truth or falsity of defendant’s representations of fact. Sentence has not yet been imposed.

4 We do not imply that magic words are required to record a trial judge’s refusal to enter the bargaining arena. In the usual case, the presumption is that the judge acted as required by law. The case at bench is unusual in that its institutional importance required that we issue an alternative writ. The alternative writ requires Our detailed examination of the record.