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

The PEOPLE, Plaintiff and Respondent, v. Fernando FLORES, Jr., Defendant and Appellant.

Cr. 11834.

Decided: November 09, 1981

Michael D. Lloyd, San Diego, under appointment of the Court of Appeal for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

Fernando Flores, Jr., who has been to prison on two earlier occasions as the result of felonies committed by him, entered pleas of not guilty and not guilty by reason of insanity to the ten counts of robbery in violation of Penal Code section 211 charged in the information.1 He also admitted the third prior felony conviction alleged pursuant to the terms of section 667.5(b), as a result of which two other priors were struck.

After Flores' motion to suppress under section 1538.5 was denied, he was tried and found guilty by the jury of all ten counts. With the exception of count six, the jury found Flores used a firearm in the commission of those robberies within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1)(iii).

At the trial on Flores' additional plea of not guilty by reason of insanity, the trial court declared a mistrial and after discussions between counsel and the court which are set forth in the record, Flores withdrew his additional plea in exchange for a commitment by the court he would not be sentenced to prison for a term greater than twelve years.

At the probation and sentencing hearing, Flores was denied probation and sentenced to twelve years in state prison.

Flores' timely appeal presents three issues: (1) whether his warrantless arrest was lawful, (2) if his arrest was not lawful, should the photographic and in-court identifications have been suppressed, and (3) was Flores properly sentenced.

We first review the facts concerning the arrest of Flores.

A series of robberies of small grocery stores had occurred in the South Bay area of the City of San Diego which investigating law enforcement officers determined were committed by the same person. Information obtained from victims of these robberies resulted in a composite drawing of the suspect in addition to a description of his physical characteristics. The suspect was described as a male of Mexican descent, in his mid-twenties, approximately 5 feet 7 inches in height, weighing about 130 pounds with a thin build, black or dark hair parted in the middle and pulled back into a short ponytail and having a moustache.

This composite drawing was posted on a bulletin board at the San Diego Police Department and information concerning the suspect and his physical description was read aloud at daily briefing sessions of police officers.

Officer Michael Kerins of the San Diego Police Department had observed the composite drawing which had been posted and was furnished with the suspect's description. On October 3, 1979, he was on duty in his patrol car and spotted Flores on a sidewalk in the vicinity of a grocery store appearing to be walking away from the store. Believing Flores to be the robbery suspect described in the composite drawing, Officer Kerins stopped Flores and made contact with him for the purpose of conducting further investigation. Kerins asked Flores where he was going and for some identification. Flores told the officer he was looking for a girl and produced his California driver's license which indicated he lived in Chula Vista, several miles from where he was now on foot. Officer Kerins then asked if Flores had any prior arrest record, and Flores responded he was on parole for robbery and burglary. After approximately ten minutes had elapsed from Flores being initially detained by Officer Kerins, he was placed under arrest.

Flores was taken to the San Ysidro substation and turned over to Deputy Sheriff John Tenwolde. Deputy Tenwolde observed Flores and after questioning him briefly determined Flores matched the description of the multiple-robbery suspect.

Deputy Tenwolde took several polaroid photographs of Flores and prepared a photographic lineup with two of the robbery victims who made positive identifications of Flores as the robber. Flores was then transferred to county jail and booked.

On October 5, 1979, a live lineup was conducted in the presence of several victims and witnesses from the robberies. Flores was presented in the lineup with five other males. Flores was positively or tentatively identified by several as the robber.

At the preliminary hearing, several witnesses made in-court identifications. These identifications were subject of a pretrial motion to suppress which was denied. The main issue urged then and on appeal in relation to the identifications is they are the “fruits” of an unlawful arrest, an arrest made without probable cause.

The United States Supreme Court in United States v. Watson (1976) 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 recognized the balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant has survived substantially intact and appear in almost all of the states in the form of express statutory authorization. The same court said in Gerstein v. Pugh (1975) 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of a crime.

In Agar v. Superior Court (1971) 21 Cal.App.3d 24, 98 Cal.Rptr. 148, the court states the following:

“To express it in a somewhat different manner, a policeman may arrest without an arrest warrant whenever he has probable cause to believe that the person to be arrested has committed a public offense in his presence. (Pen.Code, s 836.) Juridically, probable cause is a legal yardstick that is used to measure reasonableness of belief; probable cause sets legal minimums on the quantity and quality of belief that will support a lawful arrest.” (Id., at p. 29, 98 Cal.Rptr. 148.)

Preliminarily, we observe a police officer may effect a warrantless arrest whenever he has probable cause to believe that the person he is arresting has committed a public offense (s 836). Probable cause is measured by an objective standard. Probable cause for arrest without a warrant exists when facts known to the arresting officer would lead a man of ordinary care and prudence to believe and consciously entertain an honest and strong suspicion the person to be arrested is guilty of a crime. (People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632; People v. Terry (1970) 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 466 P.2d 961.) Although the test for probable cause is based on an objective standard, when a trial court is called upon to determine whether the police officer was justified in effecting such an arrest, the court must first ascertain whether the police officer actually entertained the belief that the accused committed the offense. This is a subjective component and if it is satisfied, the court then must measure the officer's subjective beliefs by the objective standard imposed by the yardstick of probable cause in order to determine whether the arrest was reasonable. (Agar v. Superior Court, supra, 21 Cal.App.3d at p. 29, fn. 1, 98 Cal.Rptr. 148.)

On review of a trial court's decision of a 1538.5 motion, the appellate court will not ordinarily independently evaluate a finding of fact of the trial court. “ ‘Indeed, the power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters must be upheld if they are supported by substantial evidence.’ ” (People v. Leyba (1981) 29 Cal.3d 591, 596, 174 Cal.Rptr. 867, 629 P.2d 961; citing People v. Lawler (1979) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

Whether the officer subjectively believed the accused committed a crime is a question of fact to be decided by the trial court. Thus, our review on appeal is limited by the substantial evidence test which we apply in independently determining whether the officer's beliefs were constitutionally reasonable. (People v. Leyba, supra, 29 Cal.3d at pp. 597-598, 174 Cal.Rptr. 867, 629 P.2d 961.)

Flores contends Officer Kerins arrested appellant only on the basis of his similarity of appearance to the general description of the criminal suspect. In support of this contention, Flores points out Officer Kerins had the same information when he initially decided to stop and detain appellant as he had ten minutes later when he arrested appellant. He cites People v. Harris, supra, 15 Cal.3d 384, 124 Cal.Rptr. 536, 540 P.2d 632, and People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, in support of the proposition that mere similarity of appearance falls short of providing probable cause to arrest. We do not agree.

First, we hold there was evidence from which the judge hearing the motion to suppress could have found Officer Kerins subjectively believed Flores committed the robberies. Kerins knew of the robberies and the general description of the suspect. He had seen a composite drawing of the suspect. He also knew Flores was in the vicinity of a grocery store, other similar stores were robbed and the store was located in the South Bay area where the robberies occurred. Although there was other evidence which placed doubt on the officer's subjective belief, sufficient evidence existed to sustain the court's finding.

Second, when the totality of facts and circumstances presented to the officer are evaluated we are satisfied the objective standard has been met. Officer Kerins was presented with the following information at the time of the arrest: (1) a series of robberies had occurred in the South Bay district where he was on patrol; (2) he received a detailed description of the suspect; (3) he had seen a composite drawing of the suspect; (4) Flores closely matched the description and composite; (5) he viewed the appellant for ten minutes during which time he had a chance to mentally compare Flores with the description and composite; (6) Flores was in the vicinity of a grocery store; and (7) Flores was out on parole for robbery and burglary. We determine these facts and circumstances are sufficient to provide probable cause for Flores' arrest.

Additionally, Mickelson, supra, and Harris, supra, are distinguishable because Kerins was presented with more than a general description of the suspected robber. While it is true that Officer Kerins may not have subjectively utilized all of these factors in deciding to make an arrest, the objective test is not concerned with the officer's subjective opinion. (Agar v. Superior Court, supra, 21 Cal.App.3d at p. 29, 98 Cal.Rptr. 148.) We hold the objective standard has been satisfied in the case at bar and the arrest was lawful.

Our determination the arrest of Flores was lawful is dispositive of the second issue concerning the denial of the suppression motion relating to the photographic and in-court identifications. With that done, we proceed to consider Flores' contention he was sentenced improperly.

On May 19, 1980, after a jury found Flores guilty of ten counts of robbery while using a firearm, the issue of appellant's sanity was tried before a jury. The jury was found to be hopelessly deadlocked and a mistrial was declared. On June 2, 1980, Flores withdrew his plea of not guilty by reason of insanity and at the sentencing and probation hearing was sentenced to the total term of 12 years.

The record reflects at the time Flores withdrew his additional plea of not guilty by reason of insanity and pleaded guilty, he, the court, and the deputy district attorney all believed the maximum sentence possible for the offense and enhancements was 17 years. The trial judge agreed at the time he would not impose a term in excess of 12 years, which he did at the subsequent sentencing and probation hearing.

The record also reflects at the time counsel submitted opposing sentencing memoranda shortly before the probation and sentencing hearing of June 30, 1980, they and the probation office were still of the opinion the maximum sentence possible was 17 years. Additionally, the record clearly indicates at the sentencing hearing of June 30, 1980, defendant, defense counsel, prosecutor, probation office and judge still believed the maximum sentence was 17 years. Unfortunately, the court, prosecutor, defense counsel and defendant had participated in both the change of plea proceeding and the sentencing hearing under a mistake of law as to the correct maximum sentence.

This is understandable due to the uncertainties precipitated by the decision of the California Supreme Court in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, and the enactment of urgency legislation in the form of Assembly Bill 2123 effective May 29, 1980. Indeed, at the sentencing hearing of June 30, 1980, after defense counsel acknowledged the maximum sentence was 17 years and urged the court to consider a commitment to California Rehabilitation Center for Drug Rehabilitation, and if not, suggested an 8-year term would be an appropriate sentence, defense counsel suggested the court could not impose consecutive subordinate terms in excess of 5 years.2

The deputy district attorney differed with defense counsel, urged the court to impose a 12-year sentence in accordance with the maximum term allowable under the plea bargain, and further assured the court he had knowledge of all current legislation and litigation in this area and unequivocably stated no 5-year lid applied in this case. This colloquy occurred without any reference to the maximum possible sentence. Since that is what our decision turns on, we now examine it.

We observe section 667.5, subdivision (c), defines certain felonies as being violent felonies and authorizes enhancements being imposed. When initially enacted, this section was thought to include the “dirty nine” which, by reason of the decision in People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, became the “dirty seven,” excluding felonies in which great bodily injury occurred or in which a firearm was used. As a consequence, the specified enhancements have been limited to the other or specific offenses listed in section 667.5, subdivision (c), for offenses occurring before May 29, 1980, but not for those occurring after that date. (People v. Childs (1980) 112 Cal.App.3d 374, 169 Cal.Rptr. 183.

The ten robberies in this case occurred before May 29, 1980. Then and now, upon sentencing, the principal term could be enhanced by the two years authorized pursuant to section 12022.5 by reason of the firearm use allegation. However, while each subordinate term ordered to be served consecutively may now include one-third of the mid-term and one-third of the firearm use enhancement, the effect of the decision in People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, was to prohibit such enhancement being included in the subordinate terms.

People v. Childs, supra, 112 Cal.App.3d 374, 169 Cal.Rptr. 183, has interpreted the Harvey decision and utilized its rationale in holding if subordinate terms for consecutive robberies cannot be enhanced, they cannot be considered exceptions to the five-year limitation for consecutive sentences as provided in section 1170.1, subdivision (a).

In view of our determination to follow Childs, instead of being advised the maximum sentence was 17 years, Flores should have been advised at the time he withdrew his additional plea the maximum sentence was 13 years. This is based on the following: For count 1, section 211, the maximum term authorized is 5 years, pursuant to the provisions of section 213. An additional 2 years could be imposed pursuant to the enhancement alleged and proved under section 12022.5. By reason of the allegation and proof of the prior prison commitment under section 667.5, subdivision (b), another 1-year term is authorized. Moreover, since section 667.5, subdivision (c), as it existed at the time of Flores' offenses, had been interpreted in People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, as having the effect of excluding robberies enhanced by firearm use from the definition of “violent felonies,” which was remedied by urgency legislation effective May 29, 1980, amending section 1170.1, the total of subordinate terms for Flores' consecutive “not violent felonies” cannot exceed five years. (People v. Childs, supra, 112 Cal.App.3d 374, 169 Cal.Rptr. 183.) This has the effect of providing the trial court with the sentencing option to impose no more than five consecutive one-year sentences representing one-third of the authorized mid-term sentence. Thus, the aggregate term of imprisonment for all of Flores' convictions pursuant to section 1170.1 was 13 years.

Where does this leave Fernando Flores who withdrew his additional plea of not guilty by reason of insanity and yielded his constitutional rights to trial by jury, cross-examination and confrontation of witnesses, the process and assistance of the court to compel the attendance of witnesses and production of evidence, as well as the right to establish by a preponderance of the evidence his being not guilty by reason of insanity in reliance on representations he would receive a sentence substantially more lenient than the maximum sentence authorized by law? This leaves Flores in the position of a defendant who has not voluntarily, knowingly and intelligently waived those all important fundamental rights.

As early as Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, the United States Supreme Court said courts indulge every reasonable presumption against waiver of fundamental rights and do not presume acquiescence in the loss of fundamental rights and defined waiver as ordinarily being an intelligent relinquishment or abandonment of a known right or privilege. In Brady v. United States (1970) 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747, the court said: “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”

Disposition of charges after plea discussions is not only an essential part of the criminal justice process but a highly desirable part for many reasons, but this part of the process and the adjudicative element inherent whenever any court accepts a plea of guilty at any stage of a criminal proceeding, “must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.” (Santobello v. New York (1971) 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.) This includes an awareness and understanding of the general sentencing possibilities. It is not necessary for a defendant to be given a detailed lecture on criminal procedure as it pertains to all the various dispositions available (Scoggins v. Superior Court (1977) 65 Cal.App.3d 873, 135 Cal.Rptr. 619), but it is essential prior to a plea of guilty being accepted, the court satisfy itself the defendant was aware of the nature of the charge and consequences of his plea. (Id., at p. 876, 135 Cal.Rptr. 619.) Among those consequences is the permissible range of sentences. (In re Tahl (1969) 1 Cal.3d 122, 133, fn. 7, 81 Cal.Rptr. 577, 460 P.2d 449.)

In the case at bar, by not being advised the correct maximum sentence was only one year greater than the sentence tentatively committed to by the trial judge as opposed to a substantially greater sentence which was not authorized by statute, Flores cannot be said to have been aware of the permissible range of sentences.

If the goal of the courts in participating in a change of plea proceeding is a voluntary and provident plea and a record by which a reviewing court can judge the attainment of that goal, as suggested in Scoggins v. Superior Court, supra, 65 Cal.App.3d at p. 877, 135 Cal.Rptr. 619, we have no doubt the goal was not achieved in this case.

We are satisfied Flores pleaded guilty in justifiable and reasonable reliance on a mistaken belief he was avoiding the possibility of the imposition of a far greater prison term than authorized by law, which under the facts and circumstances of this case constitutes an involuntary waiver of his fundamental constitutional rights.

While we observe Flores failed to comply with the procedural requirements for appeal from a “Judgment of Conviction” upon a plea of guilty (s 1237.5; People v. Kaanehe (1977) 19 Cal.3d 1, 8-9, 136 Cal.Rptr. 409, 559 P.2d 1028), because of the constitutional challenge involved in this case, the indisputability of the resulting prejudice, and in the interests of judicial economy, we forego what we consider to be at best formalistic compliance with the provisions of section 1237.5 and dispose of this case on its merits. (Cf., People v. Vest (1974) 43 Cal.App.3d 728, 731-732, 118 Cal.Rptr. 84.)3

We have determined the judgment in this case as to the sentence cannot stand. In the event Flores chooses not to withdraw his plea and to reinstate his not guilty by reason of insanity plea, we observe the following concerning the imposition of sentence in this case. In its decision to impose the upper base term of 5 years for Count 1, the trial court relied on the following aggravating circumstances: (1) appellant induced others to participate (Cal.Rules of Court, rule 421(a)(5)); (2) the appellant premeditated committing the crime (rule 421(a)(8)); (3) the crime indicated the appellant was a danger to society (rule 421(b)(1)); (4) the appellant was on parole when he committed the crime (rule 421(b)(4)); (5) the appellant's prior record on probation or parole was unsatisfactory (rule 421(b)(5)); and (6) the overall pattern of appellant's conduct. The court stated two factors were found in mitigation: (1) a lack of substantial violence or threats during the robberies (rule 423(a) (6)) and (2) appellant's heroin addiction reduced his culpability for the crime (rule 423(b)(2)). We observe the court imposed an additional two-year term for the enhancement under section 12022.5 and an additional one-year term for the enhancement under section 667.5(b). The court also imposed consecutive sentences on Counts 2 through 5 citing the “severity of the offenses” and appellant's “previous criminal record.”

A fact used to enhance a sentence may not be used also to impose the upper term. This prohibition is set forth in section 1170, subdivision (b), which provides: “The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under Section 667.5, 1170.1, 12022, 12022.5, 12022.6 or 12022.7.” (See People v. Roberson (1978) 81 Cal.App.3d 890, 893, 146 Cal.Rptr. 777; People v. Lawson (1980) 107 Cal.App.3d 748, 751-752, 165 Cal.Rptr. 764; People v. Flores (1981) 115 Cal.App.3d 67, 79, 171 Cal.Rptr. 365.)

Moreover, it is well established consecutive sentencing constitutes a form of enhancement and is a sentencing choice which must have its reasons specified on the record (s 1170, subd. (c)).

In imposing the upper term for robbery in count 1, the court relied on the six factors discussed above. However, in imposing the four consecutive one-year terms for each of the subordinate robberies in count 2 through 5, the court did not list specific factors but instead spoke in generalities referring to the “severity of the offenses” and “previous criminal record” as being the court's reasons for consecutive sentencing. These reasons necessarily incorporated some of the factors used by the court to impose the upper base term on count 1.

The court relied on the danger to society posed by Flores and overall pattern of defendant's conduct in sentencing Flores on count 1. These same factors are necessarily incorporated in the court's stated “severity of the offenses” justification in sentencing Flores consecutively on counts 2 through 5. The fact Flores was on parole and had failed to meet the terms of his parole and probation in the past is also necessarily included in the court's reference to and use of appellant's “previous criminal record.” In fact, the prior prison sentence under section 667.5, subdivision (b), also could be said to be included in such broad, nonspecific language. Although the reasons stated by the trial judge in justifying the consecutive sentences may well have been based on factors not used by the court in determining to impose the upper term on count 1, this is not clear from the record.

What the trial judge has done in this case has been to use some of the same facts to impose the upper base term and consecutive sentences as well. This does not comply with the provisions of California Rules of Court, rule 441(c), which provides: “A fact used to enhance the defendant's prison sentence may not be used to impose the upper term.”

Our comments concerning the sentencing proceedings in the case at bar are not intended to be vapid. Indeed, we are fully aware of the complexities presented in the myriad of sentencing rules which have caused trial judges to become gray before their years, to lose precious sleep and to gain unwanted weight as they went their way through the labyrinth of the Determinate Sentencing Law (Community Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, 154 Cal.Rptr. 383).

The conclusion is inescapable. Flores should be permitted to have his additional plea of not guilty by reason of insanity reinstated and proceed to trial or, in the alternative, to be accorded the opportunity to knowingly and intelligently and voluntarily waive that right and to be resentenced by the court in conformance with our comments.

The judgment is reversed as to the sentence imposed and the cause is remanded to the trial court for proceedings not inconsistent with this opinion.

I dissent only from that portion of the majority opinion allowing Flores an option to withdraw his NGI plea. As explained hereafter, I feel the majority's result is artificially achieved by misreading the factual record and the drawing of the faulty assumptions (1) that Flores was deprived of the benefits of a promised plea bargain, and (2) his Tahl-Boykin rights were violated when he was not properly advised of the consequences of withdrawing that plea.

Contrary to the majority, I find Flores' NGI plea withdrawal to be a reasoned decision made after weighing all relevant factors and with full awareness of the state of the current law applicable to his sentencing and its unsettled nature, the sentencing alternatives available to him after withdrawal of his plea, his probabilities of success on retrial of the NGI defense, and the importance to him of obtaining supporting letters from law enforcement to assist him in obtaining rehabilitative narcotics treatment while in state prison.

The majority assumes Flores and his counsel were induced to withdraw the NGI plea solely because they mistakenly believed Flores faced a possible 17-year maximum sentence which could be eliminated by accepting the offered bargain with its 12-year top. This is contrary to the record.

At first blush, a person who gives up his rights to litigate the question of his sanity at the time of commission of each of these multiple offenses for which he has previously been convicted would seem to be conceding a great deal. However, as Flores himself told the court at the time of withdrawing his NGI plea “(i)f I go through it, again I don't think the jury is going to be in my favor or anything.” We are advised the mistrial occurred after the jury hung 10 to 2 against defendant, therefore, Flores undoubtedly recognized he had little chance of prevailing on retrial.

Further, Flores did not agree to accept a 12-year sentence. He was told the court would consider alternatives to state prison as well as a lesser prison term, and, in fact, he argued strenuously for a commitment to the California Rehabilitation Center or an alternative lower term.

More significantly, the “inducement” included other matters, specifically an agreement from the district attorney he would write the state prison pursuant to Penal Code section 1203.01, Penal Code regarding possible narcotics treatment for Flores within the system, and an agreement from detective Tenwolde to the same effect. The defendant's attorney, before allowing his client to withdraw his plea, advised the court these letters of recommendation substantially induced Flores to withdraw his plea, and he then secured an agreement from the judge to write a similar letter before allowing the plea to be withdrawn. Therefore, it is clear Flores lacked confidence in the success of his NGI plea, he was “substantially induced” to withdraw his plea because of the Penal Code section 1203.01 letters and was agreeable to the trial court's limitation of 12 years as a possible maximum sentence.

In spite of the majority's repeated reference to defense counsel's misunderstanding of the potential maximum, the record is contrary. The record is silent at the time of the withdrawal of the plea as to defense counsel's understanding regarding this item. Whatever understanding may have been exhibited in discussions before that time they are not recorded and we are not advised of them, however, at time of sentencing the defense counsel accurately interpreted People v. Harvey, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, when he disagreed with the court in the following colloquy:

“THE COURT: Thank you, Mr. Blank. You do concede, do you not, that even if the Court concluded that this were a middle term case with a three-year base term, it would still be open to the Court to impose consecutive sentences on the nine other counts as a matter of discretion.

“MR. BLANK: No, your Honor, I don't, because you have a limitation in Penal Code Section 1170.1(a) where you can give up to five years as subordinate terms, the subordinate term being one third of the mid term of the concurrent offenses.

“So I think you would run into that limitation of five years, and that would give you-

“THE COURT: Does that apply in violent-

“MR. BLANK: It applies if it is not an offense in 667.5, (c), which this is not. This is not a subdivision (c) offense, but a subdivision (b) offense.

“Again I say, if I had a sentence computer I'd be better off.

“THE COURT: So it's your contention there is a limit of five years on consecutive subordinate terms.

“MR. BLANK: That is the way I read the statute. As I read 1170.1(a) it would limit to five years in subordinate terms, if it is not a 667.5(c) matter.

“THE COURT: All right, that answers that question. Thank you, Mr. Blank.

Further, in spite of the bravado orally exhibited by the district attorney in stating his expertise in the area of sentencing “I am aware of all the current litigation and legislation in this area, and I can unequivocably state there is no five-year lid on crimes of this nature,” in response to the court's suggestion it could compose a term of 12 years which would include 7 consecutive counts, he expresses his uncertainty with the following: “No, sir. A Court might extend a Supreme Court case to add the five-year lid. In other words, you might not get what you want. And this type of a sentence (including only five consecutive one-year terms) would obviate that problem. And, as I indicated, I am aware of all the litigation and legislation in this area. It does not apply. But for me to predict what the California Supreme Court might do in the future would be an idle act.”

Therefore, it is clear the defense counsel correctly perceived the law as stated in Harvey, and the retroactivity issue as subsequently decided in People v. Childs which, at the moment, is binding on us; the district attorney expected the new legislation to have retroactive effect and allow the 17-year maximum in cases of this kind, but was not so confident he was willing to allow the court to exceed the five-year lid on consecutive terms because it might subsequently be struck down.

It is obvious, each party was aware of the Harvey decision and of the new pending legislation. Defendant opted to take his chances on an unsettled area of sentencing law and avoid the risk his attorney may be wrong in analyzing the effect of Harvey and the new legislation, a decision not unrealistic in face of his own dim view of the possibilities of success on the NGI retrial, and the importance to him, as expressed personally at the time of sentencing, of getting letters which would enable him to obtain maximum narcotics rehabilitative treatment when in prison should he not be admitted to the program at the California Rehabilitation Center.1

This is not a case where the plea bargain was violated by the People, i. e., where something offered in exchange for defendant's plea was taken away. (Such as in People v. Calloway, 29 Cal.3d 666, 175 Cal.Rptr. 596, 631 P.2d 30.) It is merely a case where, upon learning the court felt defendant's conduct and record would not cause him to sentence for more than 12 years, and the additional obtaining of the prosecution's promise to write letters on his behalf to insure narcotics treatment at state prison, Flores decided to give up his NGI plea.

The court's feeling on the case was expressed in light of the court's belief more than 12 years was not warranted on the facts of these cases without any regard to the maximum possible sentence available, because the court felt there was no violence inflicted on any of the victims.

Nor is there any unknowing waiver of constitutional rights as in Brady v. United States, (1969) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. Flores was well aware of the consequences of his waiving his NGI rights: a possible maximum 12-year prison term (agreed to by the prosecution and court). Additionally, he faced the loss of his chance to convince a jury he was insane during each of the 10 counts of robbery for which he had been convicted, a gamble the potential for success which he rated as nil.

Further, the majority's finding of Tahl error because Flores was not aware, at the time he waived his NGI rights, of the permissible range of sentences, is inaccurate. Tahl is only concerned with consequences facing Flores after giving up his NGI plea, so that he does not find himself unexpectedly exposed to greater potential sentencing or direct consequences resulting from his waiver of defenses and legal rights. Here the potential consequence, 12 years, is exactly what Flores anticipated and precisely of what he was advised. Thus, the record refutes the majority's belief Flores involuntarily, unknowingly and unintelligently waived his rights to present his NGI defense in “reliance on representations he would receive a sentence substantially more lenient than the maximum sentence authorized by law.”

Until oral argument, Flores had only requested his case be remanded for resentencing so that the trial court could consider the appropriateness of his sentence in light of the fact he received only a one-thirteenth reduction as against his possible maximum sentence rather than the five-seventeenths which the trial court assumed he was receiving. This is consistent with the court's comment at time of withdrawal of the NGI plea that “(t)he dominant consideration that was in the Court's mind in holding out some kind of a break for the Defendant was that the evidence was clear that he never intentionally used any force whatever on any of the victims, and I think he is entitled to some kind of consideration for that.” It is apparent the court had in mind giving some kind of a “break” because of the defendant's not inflicting violence on his victims (although using a loaded firearm to perpetrate nine of the robberies). It may well be the court intended the “break” was one to be measured by the length of time it intended to deduct from the potential maximum sentence facing defendant, rather than his feeling the defendant's conduct warranted no more than 12 years because it did not involve infliction of harm on any person. Therefore, resolution of this issue is personal to the trial court. I would remand for resentencing, allowing the trial court to consider the effect, if any, of the holding in People v. Childs, supra, 112 Cal.App.3d 374, 169 Cal.Rptr. 183, unless its relevant holding is overturned before resentencing. In no event may the total term on resentencing exceed that previously imposed.



1.  All statutory references are to the Penal Code unless otherwise specified.

2.  We observe defense counsel's failure to recognize the interrelationship of the 5-year “lid” and the maximum sentence may be tantamount to ineffective assistance of counsel in the context of advising the defendant to withdraw his sanity defense and change his plea to guilty in exchange for leniency. (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.)

3.  In People v. Vest, supra, 43 Cal.App.3d 728, 118 Cal.Rptr. 84, although the requirements of section 1237.5 were not met in the interest of judicial economy where the voluntariness of a guilty plea was at issue, the court treated the appeal itself as a writ of habeas corpus. We caution against the submission of appeals without formally complying with the provisions of section 1237.5.

1.  Even now, we do not know if he guessed wrong, the issue is presently before our Supreme Court in People v. Hernandez, 120 Cal.App.3d 500, 175 Cal.Rptr. 22 (1981).

MALKUS,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

STANIFORTH, Acting P. J., concurs.