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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Raymond BARRIGA, Defendant and Appellant.

No. F024059.

Decided: October 02, 1996

Douglas C. Littlejohn, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edgar A. Kerry and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.


Appellant Raymond Barriga contends the trial court acted without jurisdiction when it refused to implement a plea bargain previously approved by the court.   We conclude the court's actions were permitted by Penal Code section 1192.7 and we affirm the judgment.

Facts and Procedural History

On August 27, 1989, Robert B. invited several young men to his apartment to continue drinking, as they had been doing at an Avenal bar that evening.   On the walk to Robert's from the bar, appellant joined the group.

While the men were in Robert's apartment, Robert discovered appellant in the bedroom stealing jewelry and cameras.   Robert told appellant to stop and that he would call the police if appellant “did this again.”

Later Robert went to bed while the others continued drinking in the living room.   At one point, one of the men came into the bedroom and told Robert he should lock the door if he was going to bed.   Robert did not do so, and resumed sleeping.

The next thing Robert knew, appellant was astride him, beating him with a paperweight and threatening him with a knife.   The beating broke several bones in Robert's face.   Appellant bound Robert, then locked him in a closet.   Appellant stole personal property and Robert's car keys, then fled in Robert's car.

In a three-count complaint filed in Avenal Justice Court on September 15, 1989, appellant was charged with robbery (Pen.Code, § 211),1 grand theft (auto) (former § 487, subd. 3, repealed by Stats. of 1989, ch. 930, § 6), and assault with a deadly weapon, a knife (§ 245, subd. (a)(1)).   Appellant was arrested in this case in January of 1995, as a result of a new misdemeanor burglary charge under a separate case number (H943059).

When appellant was brought before the magistrate for a preliminary hearing in the present case, counsel informed the magistrate there had been a plea bargain:  in return for waiver of the preliminary hearing, an information would be filed charging robbery only.   In return for appellant's plea of guilty to second degree robbery, no other charges from the 1989 incident would be filed;  in addition, the misdemeanor would be dismissed.   If appellant failed to plead guilty at the pretrial hearing in superior court, the prosecutor was entitled to file an amended information alleging first degree robbery, penetration of the victim's anal opening with a foreign object (§ 289, subd. (a)), with great bodily injury and weapon use enhancements, and the theft and assault charges contained in the 1989 complaint.

An information conforming to the plea agreement was filed on January 19, 1995.   On February 6, 1995, appellant pleaded guilty to the information.   The plea bargain was stated for the superior court and explained again to appellant.   The prosecutor stated that the “reason for the plea agreement is the age of the case, … insufficient evidence is the reason for the plea agreement, but this is a serious felony and that is one of the few reasons that are available.”   The court accepted that representation.   The court accepted the guilty plea.

On March 3, 1995, the probation officer filed a presentence report.   The report recited in detail the victim's allegations as set forth in the police report.   At the beginning of the March 8, 1995, sentencing hearing, the court made “a preliminary comment about [its] intentions in this matter.…”  The court said:  “This is an extremely serious offense.   I'll have to say that I was shocked, I was disappointed and amazed at the degree to which this case has been undercharged.…  The defendant's conduct is an outrage, and the disposition of this case as a simple armed robbery is not justice.”

The court then stated:

“With regard to the issue of acceptance of this plea agreement, however, the Court is of the view that the evidence in this case is not stale and is not otherwise insufficient, and the representation that there was inadequacy of the evidence because the case was old is not a reflection on the weakness of that evidence, nor the inadequacy.…  The probation report indicates that the victim was ready, willing, and continues to be ready, willing and able to testify, and there is not a sufficient legal basis for this case to have been plea bargained under 1192.7.”

After a brief recess, the court stated:

“This Court is of the view, in looking at 1192.7, subsection (a), that because a serious felony is being charged, that the plea bargain, that is, the agreement not to charge other [counts] that could have been charged with the 211, that agreement is an illegal commitment or an illegal agreement under the facts and circumstances of this case.  [¶ ] On that basis, as I see it, the Court's option is limited to refusing to accept the plea and ordering that the plea of guilty be set aside, which I will do at this time.”

The court remanded the matter to the justice court for rearraignment on the original complaint.

The prosecutor filed an amended complaint on March 15, 1995.   The preliminary hearing was conducted on March 31, 1995, at which Robert testified.   Appellant was held to answer, and on April 12, 1995, the prosecutor filed an information, as follows:

Count I—First degree robbery (§ 211), with great bodily injury (§ 12022.7, subd. (a)) and weapon use (§ 12022, subd. (b)) enhancement allegations.

Count II—Anal penetration with a foreign object (§ 289, subd. (a)), with a weapon use enhancement (§ 12022.3, subd. (a)).

Count III—Assault with a deadly weapon, a knife, and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with a great bodily injury enhancement (§ 12022.7, subd. (a)).

Count IV—Grand theft (auto) (former § 487, subd. (3)), with great bodily injury (§ 12022.7, subd. (a)) and weapon use (§ 12022, subd. (b)) enhancements.

At a pretrial conference in superior court, the prosecutor once again announced there had been a plea bargain:  in return for the prosecutor's striking the count I enhancements and the court's dismissing counts II through IV, appellant agreed to plead guilty to count I, first degree robbery.   Once again the prosecutor represented to the court that “[w]e believe that there is an issue concerning the sufficiency of the evidence to support the original charges.   This won't greatly change the end result, but will accurately reflect what the People expect to be the end result of a trial in the matter.”   Without further inquiry of the prosecutor, the court proceeded to take appellant's guilty plea pursuant to the plea bargain.

On June 6, 1995, the court sentenced appellant to the upper term for first degree robbery, six years in prison.   Appellant filed his notice of appeal on June 30, 1995.


 Appellant contends the court was without jurisdiction to reject appellant's plea bargain on March 3, 1995, once the court had accepted the plea bargain and appellant's guilty plea on February 6, 1995.   He says, relying on People v. Mikhail (1993) 13 Cal.App.4th 846, 16 Cal.Rptr.2d 641, that the court accepted the plea bargain pursuant to section 1192.1 2 and had no statutory power to rescind that approval at a subsequent hearing.   He also argues the court's action invaded the exclusive province of the executive branch in violation of the doctrine of separation of powers.

We believe the trial court had ample statutory authority to reject the plea bargain under section 1192.7.   That section, adopted by voter initiative in 1982, provides, in relevant part, that there shall be no plea bargaining of cases in which the information alleges a serious felony, “unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.” (§ 1192.7, subd. (a).)  Robbery is a serious felony for purposes of this section. (§ 1192.7, subd. (c)(19).)  “Plea bargaining” is broadly defined to include “any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.”  (§ 1192.7, subd. (b).)

 Despite the fact that appellant pled guilty to the crime of robbery as charged in the information, and did so pursuant to negotiations with the prosecutor, appellant contends the plea bargain was not subject to section 1192.7.   He makes this argument with no citation of authority on the basis that “the disposition was agreed upon before preliminary examination, and prior to the filing of an indictment or information in superior court.”  (Original italics.)

While it is true that section 1192.7 has been deemed inapplicable where the defendant actually pleads guilty before an information is filed, pursuant to section 859a (People v. Brown (1986) 177 Cal.App.3d 537, 547, fn. 11, 223 Cal.Rptr. 66;  see Brosnahan v. Brown (1982) 32 Cal.3d 236, 259, 186 Cal.Rptr. 30, 651 P.2d 274), we are aware of no authority that holds section 1192.7 inapplicable to a plea bargain presented to the superior court for approval after the information is filed, merely because the plea negotiations occurred before the information was filed.   Under the plain terms of the statute, the plea bargain in the present case was entered into in a “case in which the … information charges a[ ] serious felony.” (§ 1192.7, subd. (a).) 3  It simply does not matter when the bargaining process began, occurred or ended;  section 1192.7 is applicable because the information to which appellant pled guilty alleged a serious felony.4

 Section 1192.7 does not contain an express enforcement mechanism.   Nevertheless, it is inherent in the nature of the prohibition on plea bargaining that the court, usually sua sponte, will be required to enforce section 1192.7, since both parties in the case are, by definition, engaging in the prohibited practice.  (See People v. Tung (1994) 30 Cal.App.4th 1607, 1612, 36 Cal.Rptr.2d 727.)   Appellant does not contend in this appeal that section 1192.7 does not empower the court to reject a plea bargain as a means of enforcing section 1192.7.   He only contends section 1192.7 is inapplicable on the current facts, and we have rejected that contention, ante.

Our conclusions that section 1192.7 is applicable and that rejection of a plea bargain is an acceptable means of enforcing section 1192.7, however, do not resolve all of the issues in the present case.   Thus, we must ask whether section 1192.7 may still be invoked after the court has accepted a plea bargain, and not merely as a reason for initially rejecting a bargain.   Appellant argues that Mikhail provides the answer to this question, at least in cases where the court has approved the bargain under section 1192.1.

The court in People v. Mikhail, supra, 13 Cal.App.4th at page 855, 16 Cal.Rptr.2d 641, noted that section 1192.1 does not contain a procedure by which the court can withdraw its previous approval of a plea bargain.5  The Mikhail court concluded from this omission that the trial court has no such power in the case of a section 1192.1 plea, in which the plea bargain does not specify the sentence to be imposed, thereby bringing the case under section 1192.5.

However, the trial court in Mikhail did not purport to act under section 1192.7 in withdrawing its approval of the plea agreement (id. at p. 852, 16 Cal.Rptr.2d 641) and the plea bargain did not in fact violate section 1192.7.  (Id. at p. 858, fn. 5, 16 Cal.Rptr.2d 641.) Accordingly, Mikhail does not address the situation we face in the present case.

When we look at the way matters actually proceed in the typical felony case, we are persuaded that the voters did not intend that a trial court could intervene to reject an improper plea bargain only if it did so before approving the substance of the bargain.   As in the present case, the usual plea bargain is presented to the court before the presentence report is prepared.   The court's knowledge of the underlying facts is minimal or nonexistent.   The court has little choice at that point but to rely on the assurances of the prosecutor that the plea bargain does not violate section 1192.7 and that the plea bargain is in the interest of justice.

In most cases in which there is a guilty plea, review of the probation officer's report in preparation for the sentencing hearing will be the first occasion for the trial court to learn the details of the case.   That is usually the earliest point in the case that the court will learn that the previously approved plea bargain violates section 1192.7.  (See People v. Stringham (1988) 206 Cal.App.3d 184, 194, 253 Cal.Rptr. 484.)   We believe the intent of the voters in passing section 1192.7 was that the trial court have the power to remedy a section 1192.7 violation at any time while it has jurisdiction of the case—that is, from the filing of the information through the arraignment for judgment.  (See id. at p. 195, 253 Cal.Rptr. 484 [discussing § 1192.5].) Appellant's contrary interpretation of section 1192.7 would permit enforcement of the ban on plea bargaining only when the parties disclose their own violation of the statute before a guilty plea is entered, which would render the section 1192.7 prohibition wholly ineffective.

 Accordingly, we conclude section 1192.7, similarly to sections 1192.5 and 1018, constitutes an inherent limitation on the finality of a guilty plea, a limitation that may result in revocation of the guilty plea “in the strong light of full disclosure.”  (People v. West (1970) 3 Cal.3d 595, 599, 91 Cal.Rptr. 385, 477 P.2d 409;  see People v. Tung, supra, 30 Cal.App.4th at p. 1611, 36 Cal.Rptr.2d 727.)

 This construction of section 1192.7 does not violate the separation of powers doctrine.   It is true that the determination of which crimes to charge in a given situation is a decision entrusted to the executive branch, in the person of the district attorney.   That discretion, however, has always been subject to the power of the trial court to approve or disapprove a negotiated determination of which charges to file.  (People v. Orin (1975) 13 Cal.3d 937, 942–943, 120 Cal.Rptr. 65, 533 P.2d 193.)   Our determination that section 1192.7 gives the court the power of approval and disapproval after, as well as before, a guilty plea is accepted by the court, does not constitute a change in the traditional judicial branch oversight of executive branch discretion.   Although the judicial power arises impliedly from section 1192.7, while it arises explicitly from section 1192.5, the power itself is exactly the same and is not an intrusion on the functioning of the executive branch.   That power is merely one of approval and disapproval, and does not permit the trial court to specify the charges that must be brought against the defendant.  (Id. at p. 943, 120 Cal.Rptr. 65, 533 P.2d 193.)


The judgment is affirmed.


1.   Further code references are to the Penal Code unless otherwise noted.

2.   Section 1192.1 provides:  “Upon a plea of guilty to an information or indictment accusing the defendant of a crime or attempted crime divided into degrees when consented to by the prosecuting attorney in open court and approved by the court, such plea may specify the degree thereof and in such event the defendant cannot be punished for a higher degree of the crime or attempted crime than the degree specified.”

3.   Appellant does not contend the trial court abused its discretion when it ruled, on March 3, 1995, that there was no sufficient impediment to successful prosecution of the crimes charged in the original complaint.

4.   Cases relied on by appellant, such as People v. Thompson (1970) 10 Cal.App.3d 129, 88 Cal.Rptr. 753, involve a defendant's right to plead guilty to one count while taking other counts to trial.   The present case is wholly different because acceptance of the guilty plea barred the prosecutor from filing any other charges.

5.   Section 1192.4 provides:  “If the defendant's plea of guilty pursuant to Section 1192.1 … is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available.…”By contrast, section 1192.5 provides, in part:  “If the court [initially] approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter .…”

VARTABEDIAN, Associate Justice.

STONE (WM.A.), Acting P.J., and BUCKLEY, J., concur.

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