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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Shirley Diane SILVA, Defendant and Appellant.

No. A066322.

Decided: June 16, 1995

Charles H. James, Public Defender, Contra Costa County, David C. Coleman, III, Chief Asst. Public Defender, Contra Costa County, Martinez, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Office of the Atty. Gen., San Francisco, for respondent.

Shirley Diane Silva appeals from a judgment of conviction, following submission of the matter on the preliminary hearing transcript, arguing that the sentence imposed is an unconstitutional burden on the exercise of her right to a preliminary hearing.   Her argument involves consideration of Contra Costa County's “pre-preliminary hearing” procedure, previously discussed in our opinion in Breedlove v. Municipal Court (1994) 27 Cal.App.4th 60, 32 Cal.Rptr.2d 400.1  Although we disapproved of the practice challenged in Breedlove,2 on the facts of this case, we affirm.


Appellant was charged in a complaint with being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)), a misdemeanor, and possession for sale of methamphetamine, a felony (Health & Saf.Code, § 11378).   The charges were based on a traffic stop, during which the officer suspected that appellant was under the influence of drugs and obtained her consent to search her car.   He found methamphetamine.   At the police station, appellant told the officer there was more methamphetamine at her house.   A search of the house pursuant to a search warrant yielded 6.6 grams of methamphetamine and sales paraphernalia.

On January 19, 1993, appellant's counsel and the district attorney appeared for a pre-preliminary hearing before a superior court judge.   The public defender objected to any discussion of a possible disposition of the case prior to the preliminary hearing.   Counsel told the court that he was aware of the police reports and believed that Fourth Amendment issues were possibly meritorious.   Counsel indicated that if certain elements of the charges were not sustained, the magistrate could reduce the matter to a misdemeanor.   Counsel expressly objected to any plea bargaining prior to the opportunity to dispose of Fourth Amendment issues and to allow the magistrate to exercise discretion under Penal Code section 17 to reduce the matter to a misdemeanor.   The court overruled the objection but read the probation report and stated that, in consideration of counsel's representations, the indicated sentence at that time would be two years probation with the minimum permissible sentence on the misdemeanor charge, which was ninety days in jail.

Appellant proceeded to a preliminary hearing, at which time only the results of a urine test were suppressed.   The court declined to find probable cause to proceed on the misdemeanor charge of being under the influence of a controlled substance, but held appellant to answer on the charge of felony possession for sale.   On March 8, 1994, an information was filed charging appellant with possession for sale and adding another felony charge of transporting methamphetamine.  (Health & Saf.Code, § 11379, subd. (a).)  The superior court denied her motion to suppress.

Following the preliminary hearing and prior to trial, the same judge that had presided over the pre-preliminary hearing offered appellant an indicated sentence of three years probation and one hundred twenty days in county jail.   Appellant declined and filed a motion to reinstate the previously indicated sentence of two years probation and ninety days in jail.   The motion was denied, and appellant petitioned this court seeking to compel the lower court to impose the lesser sentence.  (A065771.)  We denied the petition on May 18, 1994, and appellant thereafter submitted the matter on the transcript of the preliminary hearing.3  She was found guilty of the charged offenses and sentenced to three years probation and one hundred twenty days in jail.   This appeal followed.


 In this appeal, appellant argues that the superior court's increase of the indicated sentence is an unconstitutional burden on her exercise of the right to a preliminary hearing.   Although we agree with several of the legal propositions argued by appellant, we do not find error on the facts of this case.

 Appellant first discusses cases which hold that a court may not punish or reward a criminal defendant for exercising a constitutional or statutory right.   This is, of course, correct.   Thus, a trial court may not use its sentencing power to punish an accused for refusing to plead guilty.   (In re Lewallen (1979) 23 Cal.3d 274, 279, 152 Cal.Rptr. 528, 590 P.2d 383.)   Neither may the court reward a defendant for giving up the right to a jury trial.  (People v. Colds (1981) 125 Cal.App.3d 860, 863, 178 Cal.Rptr. 430 [waiver of jury trial not a basis for mitigation of punishment].)   Respondent concedes the validity of these statements.

Citing People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193 and North Carolina v. Pearce (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, appellant asserts that although a prosecutor may plea bargain with a defendant, the court itself is prohibited from offering bargains.   This is not quite accurate, for Orin reviewed a case in which the court usurped the position of the prosecutor by agreeing to a plea offer that involved dismissing two of the three charged offenses over the prosecutor's objection.  (People v. Orin, supra, 13 Cal.3d. at pp. 940–941, 120 Cal.Rptr. 65, 533 P.2d 193.)   The Orin court stated that the court's action might be permissible in some circumstances, such as where the prosecutor manifested an obstructionist policy toward all plea bargaining.  (Id. at p. 949, 120 Cal.Rptr. 65, 533 P.2d 193.)  Orin did not ban all judicial participation in plea bargaining, but even if it had, the instant case is distinguishable in that the court did not offer to dismiss any charges and the prosecutor did not object to the court's indicated sentence.  People v. Williams (1969) 269 Cal.App.2d 879, 75 Cal.Rptr. 348, cited in Orin, and by appellant, does not announce a ban on judicial participation in pretrial sentencing as appellant infers.   The Williams court noted possible issues raised by such participation but also stated that when the court does participate in plea negotiations, it should not employ any threatening tactics.  (People v. Williams, supra, 269 Cal.App.2d 879, 884, 75 Cal.Rptr. 348.)   There were no threatening tactics employed in the instant case.

North Carolina v. Pearce, supra, also fails to support appellant's argument.  Pearce allowed imposition of a more severe sentence following reversal on appeal, at least where the higher sentence is imposed “in the light of events subsequent to the first trial that may have thrown new light upon the defendant's ‘life, health, habits, conduct, and mental and moral propensities.’ ”  (North Carolina v. Pearce, supra, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656.)   Moreover, the precedential effect of some aspects of Pearce has been tempered by the subsequent discussion in Alabama v. Smith (1989) 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865, of developments in the law on plea bargaining and the recognition that a prosecutor may offer more lenient treatment in exchange for a plea bargain.   (Id. at pp. 802–803, 109 S.Ct. at 2206–2207.)

The authorities that discuss the negative implications arising from judicial plea bargaining do not bar a court from stating its indicated sentence.  “[A] court may indicate to a defendant what its sentence will be on a given set of facts without 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.”  (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276, 130 Cal.Rptr. 548.)   Similarly, People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271, 1 Cal.Rptr.2d 333, found no error when a court offered an indicated sentence which would be imposed on a given set of facts.   In People v. Angus (1980) 114 Cal.App.3d 973, 990, 171 Cal.Rptr. 5, the court found no impropriety in imposing a sentence after a probation revocation hearing longer than the term offered prior to the hearing.  “The trial judge tendered an explanation for the difference [additional information in the probation report] and denied any intent to punish appellant for exercising his constitutional right.”  (Ibid.)  “The same judge sentencing the same defendant may determine a different sentence is appropriate after the case is tried.   This is because cases do not always turn out exactly as either the prosecution or defense expect.”  (People v. Arauz (1992) 5 Cal.App.4th 663, 670, 7 Cal.Rptr.2d 145.)

Appellant's answer to these statements is that the instant case involved no change in the factual predicate for the court's initial intended sentence.   We disagree.   Appellant focuses on the reasons for the sentencing court's order to argue that a change in facts did not exist.   We rely on the sentencing court's written reasons for its order rather than the implied reasons argued by the parties.   The court stated three reasons for its refusal to reinstate the pre-preliminary hearing offer.   The first reason was that the sentence imposed was consistent with that offered in other similar criminal cases.   The second reason was that the facts were not the same after the preliminary hearing.   The third reason was that the sentence offer was fair and reasonable.   The first and third reasons do not serve to explain the difference in the two offers.   Regarding the second reason, the court wrote:  “the facts are not now the same as prior to the preliminary hearing.   The Court now has the benefit of a full preliminary hearing transcript upon which to base its offer.   Further, ․ counsel implied to the court at the pre-preliminary hearing conference that facts could be raised at the preliminary hearing which might result in a defendant not being held to answer or that the charges could be reduced to a misdemeanor.   The Court took these assertions into account in making the offer it did.   No facts were introduced at the preliminary hearing to support the denial of a holding order or a reduction of the case to a misdemeanor.   Those claims are apparently now abandoned.”

Appellant argues, contrary to the court's order, she was not held to answer on one of the counts in the complaint and an item of evidence was suppressed.   Although this assertion is true, the court apparently based its initial intended sentence on the dismissed count.4  When appellant faced the court after the information was filed, she was charged with an additional felony count in place of the dismissed misdemeanor.   The state of the record shows some change in appellant's status after the preliminary hearing.   Counsel argues that it was unreasonable for the trial court to claim that it thought the charges could be reduced to a misdemeanor.   Yet, at the pre-preliminary hearing conference, defense counsel told the court:  “I would also indicate that at [a preliminary] hearing it is possible that if elements of the charges, as they are set forth in the Complaint now, were not to be sustained, the magistrate conducting a Preliminary Hearing would have authority under Penal Code Section 17 to reduce this matter to a misdemeanor.”   Thus, if the sentencing court was under any misapprehension as to the ability of the magistrate to reduce the charges, that misapprehension was a direct result of counsel's earlier representation to the court.   When appellant appeared in superior court, counsel had been unable to effectuate this representation.   The court properly, and expressly, relied on this change in the circumstances of the charges to revise its indicated decision.


Although we concur with appellant's premise, that a court may not coerce a defendant into pleading guilty by threat of increased penalties or by promise of rewards for waiving rights, we conclude that the record in this case does not demonstrate that either practice occurred.   We rely on the sentencing court's explanation that there was no longer a possibility that the charges would be reduced to a misdemeanor in finding that circumstances had changed in the time between the two indicated sentences.   We, therefore, affirm the judgment and sentence.


1.   Contra Costa County's standard procedure whenever a defendant charged with a felony appears and pleads not guilty is to set dates for a pre-preliminary hearing, a readiness conference, and a regular preliminary hearing.   Counsel attend the pre-preliminary hearing and discuss possible early disposition of the case.   The court states its position regarding sentencing at that time, based on the facts made available to the court.   (Breedlove v. Municipal Court, supra, 27 Cal.App.4th 60, 62, 32 Cal.Rptr.2d 400.)   If the defendant does not plead guilty at the readiness conference, the court withdraws the previously offered disposition, and the matter goes to the preliminary hearing.   If the case is not disposed of in municipal court and an information is filed, the matter is arraigned in superior court and set for a pretrial conference, readiness conference and trial.   At the pretrial conference in superior court, the judge considers the preliminary hearing transcript and any other information presented and again states an indicated decision regarding sentencing based on the facts of the case.

2.   Breedlove involved a challenge to the municipal court's practice of reading a probation study without the defendant's consent, in violation of Penal Code section 1204.5.

3.   The Supreme Court denied appellant's petition for review on June 16, 1994.  (S040077.)

4.   We derive the court's intent from its claim of reliance upon counsel's representation that the charges could be reduced to a misdemeanor.   At the pre-preliminary hearing, the court noted that the charged misdemeanor carried a mandatory minimum of 90 days in jail.   (Health & Saf.Code, § 11550, subd. (a).)

STEIN, Associate Justice.

STRANKMAN, P.J., and NEWSOM, J., concur.

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