PEOPLE v. GARDNER

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Michael Eugene GARDNER, Defendant and Appellant.

A011338.

Decided: January 19, 1983

Anthony Roth, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Michael Eugene Gardner appeals from a probation order rendered after he pleaded guilty to receiving stolen property (Pen.Code, § 496).   A complaint had charged him with three counts of burglary and three counts of receiving stolen property.   Pursuant to a plea bargain the information charged only one count of receiving stolen property and Gardner pleaded guilty on the condition that he not be sentenced to prison or committed to the Youth Authority.   On November 10, 1980, the trial court placed Gardner on three years probation on the condition, among others, that he serve one year in the county jail.

 When defense counsel challenged this disposition the court responded with references to the criminal acts alleged in the complaint but excluded from the information:  “We are dealing with ․ a succession of felonies one after the other, none of which he recognizes for what they are.   He thinks that if the property is returned, well, then the slate is clean or he just helped a friend acting as a principal in these various burglaries ․”  Appellant contends that the cause should be remanded for resentencing because consideration of these offenses was precluded by People v. Harvey (1979) 25 Cal.3d 754, 758–759, 159 Cal.Rptr. 696, 602 P.2d 396.

 The court in Harvey, supra, prohibited consideration of charged counts dismissed pursuant to a plea bargain for purposes of sentence aggravation or enhancement, on the basis that the plea bargain impliedly included the understanding that the dismissed counts would not be used for such purposes.   This rule does not extend to the present situation.   The bargain, made in the municipal court, contemplated that appellant would waive preliminary hearing, would be charged with only one count of receiving stolen property, would not be committed to prison or the Youth Authority, and would not receive a diagnostic commitment under Penal Code section 1203.03.   These understandings were all honored.   The record does not support an implication that consideration of the uncharged offenses solely for the purpose of ascertaining the proper conditions of probation was prohibited by the terms of the plea bargain.

 Appellant also contends that the trial court improperly imposed the confinement condition to correct what it perceived to be errors of past overly lenient treatment of appellant by the criminal justice system.  (See People v. Molina (1977) 74 Cal.App.3d 544, 552–553, 141 Cal.Rptr. 533, [proscribing imposition of sentence to punish defendant for past crimes].)  The record demonstrates, however, that the court did not require confinement because it should have been imposed for past crimes (id., at p. 553, 141 Cal.Rptr. 533), but to help correct a cavalier attitude toward crime that in the court's opinion had been “shaped in part” by prior leniency.   No improper consideration of past lenient treatment occurred.

Affirmed.

I dissent.

Those who complain of opacity in appellate opinions would be hard put to make a case in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, particularly with regard to the holding:  “In our view, under the circumstances of this case, it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant's sentence.   Count three was dismissed in consideration of defendant's agreement to plead guilty to counts one and two.   Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.   The People have cited no contrary authorities.”  (At p. 758, 159 Cal.Rptr. 696, 602 P.2d 396, emphasis added.)

That seems to me to be a relatively concise statement that trial courts are forbidden to consider a count dismissed pursuant to a plea bargain because it is implicit in such a bargain—unless there is an explicit agreement otherwise that no adverse sentencing consequences will follow from the dismissed charges.   A year in jail sounds like an adverse sentencing consequence.

However, the majority in the present case purports to distinguish Harvey's command on the basis that “The record does not support an implication that consideration of the uncharged offenses solely for the purpose of ascertaining the proper conditions of probation was prohibited by the terms of the plea bargain.”   The plain answer is that every record of every plea bargain contains the implication unless there is an explicit agreement to the contrary because the California Supreme Court has told us the implication exists as a matter of law.

I would reverse and remand the cause for resentencing without consideration of uncharged offenses alleged in the complaint that were transactionally related to the charged offense.

 CALDECOTT, Presiding Justice.

CHRISTIAN, J., concurs.