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

The PEOPLE, Plaintiff and Appellant, v. Ervin L. D. ORIN, Defendant and Respondent.

Cr. 24417.

Decided: March 05, 1974

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, and Eugene D. Travis, Deputy Dist. Atty., for plaintiff and appellant. Richard S. Buckley, Public Defender, Harold E. Shabo, Gerald E. Peterson, and Michael Rothschild, Deputy Public Defenders, for defendant and respondent.

This is an appeal by the People pursuant to Penal Code section 1238, subdivision (a)(8), from an order of the trial court dismissing two counts of an information while sentencing respondent to state prison on his plea of guilty to a third charge. It raises the issue of the propriety of a trial judge negotiating a ‘plea bargain’ with a defendant over the objection of the prosecution. We conclude that the process is improper and accordingly reverse the order of dismissal.

Respondent was charged in a three count information. Count I alleges attempted robbery of Violet V. Myers, Fred C. Myers, and Donald D. Myers on January 9, 1973, and also that at the time of the offense respondent used a firearm and in its commission inflicted great bodily injury upon Violet V. Myers. Count II alleges a burglary of the apartment occupied by the Myers' on January 9, 1973, that appellant was armed with a deadly weapon and used a firearm during and in the commission of the offense, and that during its commission he inflicted great bodily harm upon Mrs. Myers. Count III alleges assault with a deadly weapon upon Violet V. Myers on January 9, 1973, but contains no allegation that respondent used a firearm in committing the offense.

Respondent entered his plea of not guilty to the information. On his motion, psychiatrists were appointed to examine him. On June 29, 1973, the case was called for trial and the prosecution announced that it was ready to proceed. Respondent's counsel stated that respondent ‘is willing to withdraw his previously entered plea of not guilty to Count III, which alleges a violation of 245(a) of the Penal Code and to enter a new and different plea of guilty to that count.’ Over the objection of the prosecutor, the court announced: ‘The Court is willing to accept that plea at this time as to Count III and put the matter of the disposition of the remaining counts over to the time of probation and sentence proceedings. This would be in the nature of a plea bargain in which the People do not wish to enter . . . and with the further understanding that if the Court feels that it cannot at that time accept it, that the Court would allow [respondent] to set the plea aside and go to trial. . . . This is an alternative felony/misdemeanor. As a felony it carries term of six months to life. . . . I will indicate . . . at this time . . . because of what the Court knows about it at this time, the likelihood is extremely strong that yon will be sent to the state prison for the term prescribed by law. . . .’ Respondent replied that he understood. Appropriate Tahl waivers were recited and respondent entered a plea of guilty to count III. Over further objection from the prosecution that it was ready for trial, the case was continued for a probation report.

On July 30, again over the objection of the prosecution, the court dismissed counts I and II of the information. It sentenced respondent to state prison by a minute order stating: ‘Whereas the said defendant having duly pleaded guilty in this court of the crime of ASSAULT WITH A DEADLY WEAPON, in violation of Section 245 [a], Penal Code, a felony . . . It is Therefore Ordered . . . that the said defendant be punished by imprisonment in the State Prison for the term prescribed by law. To be given credit for two hundred and eight days heretofore served. . . . Remaining counts dismissed in the interests of justice.’

On this appeal from that order, the People expressly waive failure, if any, of the order to comply with the provisions of Penal Code section 1385 requiring the specification of reasons for a dismissal in the interests of justice. They contend, however, that the trial court improperly dismissed counts I and II of the information over the objection of the prosecution, arguing that the prosecution was entitled to a jury trial on those counts.

The Constitution of California states, in article I, section 7: ‘The right of trial by jury shall be secured to all, and remain inviolate. . . . A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel. . . .’ Penal Code section 1385 provides: ‘The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.’ Appellant contends that Penal Code section 1385 violates article I, section 7, of the Constitution to the extent that it denies the prosecution a jury trial by permitting the court to dismiss a criminal action in the interest of justice over the objection of the People.

Unquestionably, a jury trial may not be waived a defendant in a criminal case without the consent of the prosecution. (People v. Terry, 2 Cal.3d 362, 377–378, 85 Cal.Rptr. 409, 466 P.2d 961.) The People may not without their consent be denied the right to a jury determination of contested issues of fact. (People v. Wisecarver, 67 Cal.App.2d 203, 209, 153 P.2d 778.) Conversely, no denial of jury trial is involved if a criminal proceeding is dismissed before trial and before jeopardy has attached for reasons other than the resolution favorably to the defendant of issues of fact contestable at trial. That principle has been implicitly recognized in decisions upholding the power of a magistrate to disbelieve prosecution witnesses and thus determine a lack of probable cause to bind a defendant over for trial (Jones v. Superior Court, 4 Cal.3d 660, 667–668, 94 Cal.Rptr. 289, 483 P.2d 1241), and in decisions recognizing the power of the trial court to set aside an information pursuant to Penal Code section 995 where the defendant has been bound over for trial at a preliminary hearing at which competent evidence does establish probable cause to hold him for trial (Badillo v. Superior Court, 46 Cal.2d 269, 271, 294 P.2d 23).

Here counts I and II of the information were dismissed before trial. They were also dismissed for reasons other than the resolution of triable issues of fact. The preamble to the order of the court recites the reasons for dismissal of counts I and II as respondent's plea of guilty to count III and his sentence to state prison for the term prescribed by law. Appellant asserts that, irrespective of the reasons for dismissal recited in its minute order pursuant to Penal Code section 1385, the trial court in reality dismissed counts I and II because it prejudged respondent's innocence based upon psychiatric information contained in a probation report. The record does not support that position. At a hearing on the matter of probation held about one month after the guilty plea to count III was entered by respondent, appellant, People, moved that the guilty plea be withdrawn. Respondent's counsel objected. The trial court noted that while the probation report indicated ‘a serious problem concerning the specific intent required as to the 211 robbery because of the excessive use of alcohol, and the factual situation connected with it, [the court] still feels this would be the proper plea and so finds. . . . ’ Appellant argues that the trial court's statement discloses that it was dismissing counts I and II because it felt respondent was innocent of the offenses there charged. The statement, however, makes no reference to dismissal of counts I and II but is in response to the prosecution's motion that the plea of guilty to count III be withdrawn. In context, it must be construed as a recitation by the trial judge of matter in the probation report relevant to the intelligence of respondent's plea of guilty to count III, and the judge's conclusion that no reason for withdrawal of the plea over respondent's objection appeared.1

Thus, no right of the prosecution to a jury trial prevented the court from taking pretrial action dismissing counts I and II for reasons unconnected with a determination of triable factual issues. There remains the question of the propriety of the trial court's dismissal in view of the provision of Penal Code section 1385 that such dismissals must be ‘in furtherance of justice.’

Discretion to dismiss pursuant to Penal Code section 1385 is not absolute and the decision to dismiss in the furtherance of justice must be based upon facts ‘which would motivate a reasonable judge.’ (People v. Curtiss, 4 Cal.App.3d 123, 126, 84 Cal.Rptr. 106, 108.) Thus a trial court may not, over the objection of the prosecution, embark upon a ‘package disposition’ of multiple counts by agreeing to a lenient sentence on counts to which a defendant agrees to plead guilty and to dismiss other counts in return for the plea. (People v. Beasley, 5 Cal.App.3d 617, 623, 633–634, 85 Cal.Rptr. 501.) Where, however, dismissal of one charge is based upon the existence of determination of guilt upon another so that the dismissal has an effect upon punishment substantially equivalent to the imposition of concurrent sentences upon the count on which guilt has been determined and the dismissed count, the dismissal is authorized by Penal Code section 1385. (People v. Superior Court (Mowry), 20 Cal.App.3d 684, 687, 97 Cal.Rptr. 886.)

Thus we must determine whether the action of the trial court in dismissing counts I and II of the information in response to a plea of guilty to count III constituted a proscribed ‘package disposition’ or a permissible exercise of sentencing discretion. The dismissal here has some of the attributes of both. Unlike the situation in People v. Beasley, supra, 5 Cal.App.3d 617, 85 Cal.Rptr. 501, the trial court here reserved its decision to dismiss until it had the opportunity to consider a probation report. Thus the ultimate dismissal of counts I and II was related to the imposition of sentence on count III. Conversely, the trial court itself treated its action ‘as in the nature of a plea bargain in which the People do not wish to enter.’ The acceptance of a plea of guilty to count III, charging assault with a deadly weapon, while dismissing count II, charging first degree burglary, granted treatment to respondent more lenient than that resulting from concurrent sentences imposed upon all counts charged. While the offenses charged in both counts II and III carry the possibility of a maximum life term, count II also carries a five year minimum (Pen.Code § 461), while the minimum term of imprisonment for the crime charged in count III is six months (Pen.Code § 245.) The action of the trial court thus is consistent with that court's characterization that it was acting pursuant to a ‘plea bargain,’ something granted in return for a plea of guilty.2 On balance, we conclude that the trial judge's characterization of the proceeding determines that the plea of guilty was the inducement of the potentially lesser sentence.

In the circumstances of the case at bench, a ‘plea bargain’ between the judge and a defendant in which the prosecution does not participate is not a situation which permits the dismissal in the furtherance of justice of counts carrying a greater sentence in return for a plea of guilty to another offense. While the concept of plea bargaining has been approved by the Supreme Courts of the United States and California (Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409), the process which is validated by the high courts is that of disposition of a criminal case negotiated by counsel for the prosecution and defense. (People v. West, supra, 3 Cal.3d at p. 600, 91 Cal.Rptr. 385, 477 P.2d 409.) The court's authority extends only to approval or disapproval of the product of the negotiation. The court has no right to substitute itself for counsel for either the People or the defendant and itself to negotiate a disposition over the objection of either. (People v. Beasley, supra, 5 Cal.App.3d 617, 633–634, 85 Cal.Rptr. 501.)3

We thus conclude that the trial judge was not empowered by Penal Code section 1385 to dismiss counts in the furtherance of justice where that dismissal was the consequence of a plea bargain negotiated by the judge and defense counsel over the objection of the prosecution and resulted in a plea of guilty to and sentence on a count carrying a lesser sentence then that provided for an offense charged in a dismissed count. That conclusion is limited to the issue presented by the case at bench. We express no opinion concerning the similar but distinct situation in which a trial judge indicates a sentence and disposition that will be imposed at a time after he has had an opportunity to consider a probation report and a defendant enters a plea of guilty to all counts or to the most serious count of an accusatory pleading with the understanding that if the judge on further consideration determines that the indicated sentence is not appropriate the plea may be withdrawn and the matter may go to trial.4 Unlike the situation in the case at bench, no negotiation of a bargain between the judge and the defendant, over the objection of the prosecution, is there involved. The process is rather one by which a defendant is informed of the anticipated consequences of his plea of guilty. Similarly, our decision here does not concern itself with the power of the trial judge to strike from an accusatory pleading allegations which trigger a mandatory minimum sentence—here allegations that the defendant was armed with a deadly weapon, used a firearm, and inflicted great bodily harm. (In re Cortez, 6 Cal.3d 78, 83–84, 98 Cal.Rptr. 307, 490 P.2d 819; In re Johnson, 3 Cal.3d 404, 90 Cal.Rptr. 569, 475 P.2d 841; People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993; People v. Clark, 3 Cal.3d 97, 99, 89 Cal.Rptr. 253, 473 P.2d 997; People v. Dorsey, 28 Cal.App.3d 15, 17–18, 104 Cal.Rptr. 326.)

The order of dismissal of counts I and II of the information is reversed. As the People concede, the trial court must afford respondent the opportunity to withdraw his plea of guilty to count III.


1.  On appeal, appellant expressly concedes that the trial court properly received the plea of guilty to count III over his objection.

2.  We recognize that for the purpose of testing the constitutionality of an indeterminate sentence, it is treated as one for life subject to mitigation as an incentive to the defendant's reformation. (In re Lynch, 8 Cal.3d 410, 415–417, 105 Cal.Rptr. 217, 503 P.2d 921.) The issue here, however, is not the legal characterization of indeterminate sentences but rather the factual difference between indeterminate sentences carrying different minimums as relevant to corroboration of the trial judge's characterization of his own conduct as a ‘plea bargain’ without the prosecution's consent.

3.  See American Bar Assn. Advisory Committee on the Criminal Trial, Standards Relating to Pleas of Guilty (Approved Draft, 1968), 11, 73–75, concluding that ‘The trial judge should not participate in plea discussion.’ The committee notes, among other reasons, that such a practice would be inconsistent with the theory behind the use of pre-sentence investigation reports.

4.  Nothing we say here detracts from the validity of the use of prejudgment probation reports pursuant to Code of Civil Procedure section 131.3.

THOMPSON, Associate Justice.

WOOD, P.J., and HANSON, J., concur.