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

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Stanley FLORES, Defendant and Appellant.

Cr. 4271.

Decided: March 16, 1971

Richard A. Townsend, La Jolla, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.


The Grand Jury indicted defendant in twelve counts (four counts of burglary, three counts of grand theft, three counts of receiving stolen property, one count of growing marijuana, and one count of armed robbery with a deadly weapon). Defendant pleaded not guilty to all counts. Later he was allowed to change his plea to guilty of armed robbery, and the remaining counts were dismissed.

The record establishes defendant was not aware of the punishment for armed robbery. He thought it was five years to life (Pen.Code § 213). Although the judgment provided any increased punishment under Penal Code section 12022 was inapplicable (People v. Floyd, 71 Cal.2d 879, 883, 80 Cal.Rptr. 22, 457 P.2d 862), the court inserted another provision in the judgment, the defendant was armed within the meaning of Penal Code section 12022.5. Under Section 12022.5, five additional years would be superimposed on the minimum five years imposed by Section 213. Hence the punishment would be ten years to life, not five years to life, if Section 12022.5 applies. The defendant was entitled to know this important difference before concluding he wished to plead guilty (Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274). Knowledge of the minimum sentence is important to the defendant, as knowledge of the maximum is also important. A defendant can be expected to be as interested in how soon he can get out of prison as he may be as to how long he might have to stay.

We note the judgment in this case is somewhat ambiguous because it recites Flores ‘was armed within the meaning of Penal Code section 12022.5.’ That section requires a firearm be used in the commission of a robbery or other specified crime. One should not be required to resort to innuendo to discern the court's meaning that Flores not only was armed with a firearm, but he used it in the commission of the robbery. At the time he changed his plea to guilty, Flores admitted he ‘pulled’ a loaded .22 caliber automatic on his victim and demanded all his money. The gun was visible. We do not reach the question of whether the judgment, as phrased, is too vague and ambiguous to allow enforcement of the enhanced punishment under Penal Code section 12022.5. The judgment must be reversed because Flores was not aware of the possibility of enhanced punishment.

The restrictions on appeal from a guilty plea, under Penal Code section 1237.5 and People v. Ribero, 4 Cal.3d 55, 92 Cal.Rptr. 692, 480 P.2d 308, raised in oral argument by the People, are not applicable. In Ribero the petitioner's plea of guilty was allegedly based upon his attorney's representation he would be sent to a narcotic hospital for treatment. The Supreme Court carefully emphasized the attorney's representations were in no way substantiated by the prosecution or the court so there was no merit in Ribero's claim his sentence to prison violated a bargain by which his plea was obtained.

Here, the court asked Flores what he thought the maximum sentence was for armed robbery. Flores answered five years to life. The court showed its agreement with him by accepting the guilty plea with knowledge of Flores' understanding the punishment was five years to life. The court substantiated the punishment expectation of Flores and, in effect, participated in a bargain which later, before a different judge, was not followed because the court sought to apply Section 12022.5. We find the case is governed by People v. Delles, 69 Cal.2d 906, 73 Cal.Rptr. 389, 447 P.2d 629 rather than by People v. Ribero, supra, 4 Cal.3d 55, 92 Cal.Rptr. 692, 480 P.2d 308.

The judgment is reversed with directions to reinstate all the dismissed counts, vacate the guilty plea proceed from there.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.