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Court of Appeal, Second District, Division 2, California.

THE PEOPLE of the State of California, Plaintiff and Appellant, v. Lynn Robert GODFREY, Defendant and Respondent.

Cr. 28137.

Decided: November 30, 1976

John K. Van De Kamp, Dist. Atty., of Los Angeles County, Harry B. Sondheim, Head, Appellate Division, and Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant. Jeffrey M. Levy, Los Angeles, for defendant and respondent.

Lynn Godfrey was charged by information with violation of Health & Safety Code section 11352, subdivision a, and one prior felony conviction.1 The People had agreed not to prove the prior conviction,2 and defendant pleaded guilty to violation of Health & Safety Code section 11352, subdivision a.3

At the time for sentencing, the trial court on its own motion found defendant guilty of Health & Safety Code section 11350. The People objected to the reduction of the charge. Defendant was put on five years probation with conditions including that the first six months be spent in county jail. The People appeal from the ‘order . . . reducing defendant's conviction to a lesser included offense of possession of heroin in violation of Section 11350 of the Health and Safety Code.’


The People contend that the trial court exceeded its jurisdiction in reducing the offense. Respondent, however, claims that the trial court exercised sentencing discretion in compliance with the terms of the plea bargain.


The trial court exceeded its jurisdiction in finding defendant guilty of a lesser offense than that to which he pleaded guilty.

The question presented is whether on its own motion a trial court, where a defendant has pleaded guilty to committing a particular crime, can reduce the offense to a lesser included offense. Before that question can be addressed, however, we must initially discuss the question of the adequacy of the People's objection. The People's objection at the time the trial court reduced the offense was not to the jurisdiction of the court to reduce the offense. Rather, the district attorney asked the court if violation of Health & Safety Code section 11350 is a lesser included offense of violation of Health & Safety Code section 11352(a). The district attorney later objected ‘to the reduction by the court to a lesser included [offense], which the court says is necessarily included?’ The district attorney added: ‘I am not sure that it is,4 and I wish to take exception.’ This was not the correct reason to object and missed the point. However, that is not fatal because objection was unnecessary. The act of reducing the crime was clearly beyond the jurisdiction of the court. Failure to object does not confer jurisdiction beyond the constitutional and statutory grants.

There is no statutory authorization for the action taken by the trial court. Penal Code section 11595 is in Title 7 (‘Of Proceedings After the Commencement of the Trial and Before Judgment’) and Chapter 4 (‘The Verdict or Finding’) of the Penal Code. Read in context, it applies to a case where defendant's guilt is being considered as an issue, but not yet determined. Penal Code section 1159 applies to the trial; it does not apply where guilt has been admitted by a plea or to proceedings after conviction.

Neither is subdivision 6 of Penal Code section 1181 applicable upon a plea of guilty. That subdivision provides that the court may upon defendant's application grant a new trial:

‘When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed; . . ..’

Since a guilty plea admits all the elements of the offense charged (Peope v. Meals, 49 Cal.App.3d 702, 706, 122 Cal.Rptr. 585), the sufficiency of the evidence cannot be attacked after a guilty plea. Therefore, section 1181(6) does not apply.

Respondent contends that the reduction in the offense was within the terms of the plea bargain. While the terms of the bargain did leave sentencing to the judge, the plea was to section 11352, subdivision a. It was defendant's pleading guilty to that section that prompted the People not to prosecute the prior conviction. The decision not to prosecute the prior decreased defendant's minimum sentence by five years. This was certainly adequate consideration for the plea bargain. There is nothing in the record that demonstrates in the slightest that either the prosecution, the defense, or the court had agreed as part of the bargain that the offense would be reduced or that the defendant expected such reduction. Such an argument is patently ridiculous. If truly there was to be a lesser charge, the People would have agreed to accept and the defendant would have entered a plea to the lesser offense. However, here there was no such bargain and no such plea. While the court, if its does not think the bargain is fair, need not approve a bargain reached between the prosecution and the defendant, it cannot change that bargain without the consent of both parties. (People v. Orin, 13 Cal.3d 937, 949, 120 Cal.Rptr. 65, 533 P.2d 193; People v. Beasley, 5 Cal.App.3d 617, 636, 85 Cal.Rptr. 501.)

The order of the trial court reducing the offense is reversed and the cause remanded to the trial court for the purpose of sentencing defendant upon his conviction by his plea of guilty of violating Health & Safety Code section 11352, subdivision a.


1.  The amended information charged the prior conviction of Penal Code [sic] section 11530.5.

2.  Other than that promise, no other promises were made to defendant to induce him to enter the plea. There is some discussion in the People's brief as to whether or not a plea bargain was engaged in by defendant. However, in Respondent's Brief, defendant concedes that a plea bargain was indeed made.

3.  Defendant admitted giving or furnishing heroin.

4.  People v. Francis, 71 Cal.2d 66, 72–73, 75 Cal.Rptr. 199, 450 P.2d 591 indicates that possession is a lesser and necessarily included offense within the crime of sale of narcotics under factual circumstances similar to the instant case. Therefore, even the basis of People's objection is probably incorrect.

5.  Penal Code section 1159 provides:‘The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.’

BEACH, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.

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