PEOPLE v. GAETA

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

The PEOPLE, Plaintiff and Appellant, v. Robert Mark GAETA, Defendant and Respondent.

Cr. 44915.

Decided: July 10, 1984

Robert H. Philibosian, Dist. Atty., Donald J. Kaplan and Richard W. Gerry, Deputy Dist. Attys., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Ronald Yorizane and Albert J. Menaster, Deputy Public Defenders, for defendant and respondent.

The People appeal from order “striking the allegation of two prior convictions for burglary and sentencing the defendant to three years state prison.”

I

BACKGROUND

In the municipal court defendant entered a plea of not guilty to two counts of a felony complaint charging attempted residential burglary (count I) and escape (count II).   The cause was continued to May 20 in superior court for a pre-preliminary hearing, and a probation report was ordered;  the preliminary hearing was set for June 17 in municipal court.   On May 24 the parties appeared in superior court.   When the case was called, Judge Miller immediately stated his understanding defendant wished to withdraw his plea of guilty and enter a new and different plea, to which defendant responded in the affirmative;  told he would receive the upper term in state prison, defendant responded “Yes”;  further, the judge said, “․ it's my understanding and it's my indication, Mr. Gaeta [defendant], to Mr. Yorizane [defense counsel], if the People should appeal the striking of the priors and the priors are reinstated, that I would allow you to withdraw your plea,” and defendant answered in the affirmative.   At this time the prosecutor said:  “For the record, the People object to the priors being stricken.”   No other objections were made.   He then took all necessary waivers and rearraigned defendant on the felony complaint;  defendant pleaded guilty to both counts and admitted the two prior felony convictions (residential burglaries).   The court denied probation, sentenced defendant on count I to the upper term of three years and on count II, to the median term of two years to run concurrent with sentence imposed on count I, and stated, “For the purposes of this hearing, the Court will strike the priors for the purposes of sentencing.  [¶ ] I am doing so because the defendant will be or could be returned to Department F on one of the priors for which he is on a CRC commitment and he is on probation for the other prior with a violation hearing pending.  [¶ ] The court does not feel that it would be appropriate to sentence the defendant.”

II

PEOPLE'S RIGHT TO APPEAL

 Respondent's challenge to the People's right to appeal is without substance.   It is clear from a reading of People v. Burke, 47 Cal.2d 45, 53, 301 P.2d 241 [disapproved on other grounds in People v. Sidener, 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, which in turn was overruled in People v. Tenorio, 3 Cal.3d 89, 91, 89 Cal.Rptr. 249, 473 P.2d 993] and People v. Espinoza, 99 Cal.App.3d 59, 64–65, 159 Cal.Rptr. 894 (see also People v. Drake, 19 Cal.3d 749, 756, 139 Cal.Rptr. 720, 566 P.2d 622), that an order striking the charges of prior felony convictions is in its nature one of the orders specified as appealable either by paragraph (1) or by paragraph (6) of section 1238(a) Penal Code.

III

PLEA BARGAIN

 The main issue raised by appellant herein, that the agreement to strike the prior convictions in return for defendant's guilty plea constituted an illegal plea bargain under section 1192.7, Penal Code (Prop. 8), is predicated upon appellant's mistaken impression that the People interposed an objection to the plea bargain in the superior court.   They did not, and the issue is raised for the first time on this appeal.   The transcript of the oral proceedings had on May 24 during which the court recited the plea bargain, waivers were taken, defendant was rearraigned and his pleas of guilty were entered and judgment and sentence were pronounced, reflects no opposition of any kind to the plea bargain on the ground it was prohibited by Proposition 8, or on any other ground.   The only objection made by the deputy district attorney during the entire proceeding was directed solely to striking the prior felony convictions, and the People had ample opportunity to object to the plea bargain and cite Proposition 8 (§ 1192.7) but did not do so.   At no time did the prosecutor ever mention the plea bargain, object to the taking of the guilty pleas or object to the sentence imposed on the ground that the plea bargain was not negotiated with the consent of the People or was improper under the plea bargain prohibition contained in section 1192.7.   The People are precluded from raising the issue now.  (People v. Smith, 34 Cal.3d 251, 271, 193 Cal.Rptr. 692, 667 P.2d 149.)   First, the trial judge had no opportunity to rule on the objection the People now make.   Second, the prosecutor's silence when the trial court announced, directed and carried out the terms of the plea bargain amounted to an assent thereto.  (People v. Burke, 47 Cal.2d 45, 53, 301 P.2d 241;  see also In re Hochberg, 2 Cal.3d 870, 876, 87 Cal.Rptr. 681, 471 P.2d 1.)   Third, the scope of the issues on review must be limited to those raised in the trial court.  “This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party's contentions.”   (People v. Manning, 33 Cal.App.3d 586, 601, 109 Cal.Rptr. 531.)

IV

POWER OF COURTS TO STRIKE PRIOR FELONY CONVICTIONS

 The foregoing also precludes appellate consideration of the People's next contention that the trial court no longer has the power to strike priors over their objection because of Proposition 8.   This is the first time the People have raised this issue.   The sole objection interposed by the People in the trial court was directed to striking the priors “for the record,” but no mention was made of the ground for objection;  in fact, it is obvious that objection was made only as a matter of form.   It was simply stated:  “For the record, the People object to the priors being stricken,” without argument and without renewal when the court made its orders striking the prior convictions or any time thereafter.

V

ORDER STRIKING PRIORS PROPER

 The two remaining issues raised by appellant, that the trial court abused its discretion in striking the allegations of two prior felony convictions and that the reasons therefor were not set forth in the order entered upon the minutes as required by section 1385, Penal Code, are wholly without merit because the trial court struck the priors pursuant to the terms of a negotiated plea bargain.

Contrary to the assertion of appellant that the People objected to the plea bargain, it is evident from the record that the plea bargain in fact was entered into with the blessing of the deputy district attorney and defense counsel and approved by Judge Norman prior to the hearing on May 24 before Judge Miller, and that when the only objection was made it was directed solely to the “priors being stricken.”   Clearly the plea bargain, as stated by Judge Miller, was that if defendant would withdraw his previously entered plea and enter a new and different plea to each count (attempted burglary and escape) he would “receive the upper term in state prison for this offense” and he (Judge Miller) would strike the two prior convictions, as previously “indicated” by Judge Norman.   It is equally clear this plea arrangement was with the People's consent and it was the understanding of all parties that should the People appeal from the order striking the priors and should they be reinstated, the trial court would allow defendant to withdraw his pleas.   It is for this reason and “for the record” that the People made their objection to the striking of the priors.   Appellant seeks to use this objection as one going to the plea bargain itself to bring their cause within the ambit of People v. Orin, 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193; 1  however, on this record we cannot equate a “for the record” objection to the striking of the priors (which obviously was built into the negotiated plea) with an objection to the plea bargain on the ground the People had not consented thereto.   Evidence that a plea bargain was negotiated with the consent of the People is found in (1) Judge Miller's recitation (without correction or objection by the deputy district attorney if the judge was in error) of his understanding of the plea agreement which had previously been entered into from which the inference is plain that the parties had appeared on a prior date (probably May 20, the original day set for the pre-preliminary) before Judge Norman, a plea bargain had been negotiated between the deputy district attorney and defense counsel and approved by Judge Norman, the agreement containing the provision that the priors would be stricken but with the condition that should the People appeal from the order and should the priors be reinstated, the court would allow defendant to withdraw his pleas; 2  and (2) the failure of the deputy district attorney to object to the plea bargain at any time on the trial court level.

We can only conclude that an agreement was negotiated by the People and defendant and his counsel and approved by the court, and that it constitutes a plea bargain within the contemplation of People v. Orin, 13 Cal.3d 937, 942, 120 Cal.Rptr. 65, 533 P.2d 193 and People v. West, 3 Cal.3d 595, 604–608, 91 Cal.Rptr. 385, 477 P.2d 409;  and that in carrying out its provisions, the trial court ordered the striking of the allegations of the two prior felony convictions pursuant to the terms of a negotiated plea—not pursuant to section 1385, Penal Code.   That this was the clear intention of Judge Miller is reflected in his statement “The Court does not feel that it would be appropriate to sentence the defendant [on the priors].”  The priors having been stricken pursuant to the terms of a negotiated plea bargain, it was unnecessary for Judge Miller to comply with the provisions of the statute by setting forth the reasons therefor in the order entered upon the minutes.

The judgment is affirmed.

I respectfully dissent.   In my opinion, the trial court was without jurisdiction to strike the two prior “serious felony” convictions and therefore improperly sentenced defendant Gaeta.   I would reverse the judgment (order striking the two prior felony convictions) and remand this case to the trial court for resentencing after first affording the defendant an opportunity to withdraw his pleas and admissions, if he so desires.   My reasoning follows:

THE CASE AT BENCH

The record on appeal shows that at the time of sentencing of the defendant on May 24, 1983, in the case at bench (superior court No. A 530092), the court was aware that defendant was charged with attempted burglary of a residence on April 6, 1983, in violation of Penal Code sections 664/459 1 (count I), and escape and attempt to escape on April 19, 1983, in violation of section 4532, subdivision (b) (count II).   The court was also aware of the Amendment to Information (signed by Deputy District Attorney Philip Millett) alleging two prior convictions of serious felonies in the State of California within the meaning of section 667, subdivision (a).   The Amendment to Information states:  “9/4/81, Burglary in violation of Penal Code 459 (residential).   (# A561351) [¶ ] 10/23/81, Burglary in violation of Penal Code section 459 (residential).  (# A527549) [¶ ] It is further alleged that said defendant, ROBERT MARK GAETA, was convicted of the following felonies, to wit:  (1) Burglary, in violation of Section 459 of the Penal Code, on or about the 4th day of September, 1981, in the Superior Court of the State of California for the County of Los Angeles, (Case # A561351);  (2) Burglary in violation of Section 459 of the Penal Code, on or about the 23rd day of October, 1981, in the Superior Court of the State of California for the County of Los Angeles (Case # A527549), within the meaning of Penal Code Section 1203(e)(4).”

The reporter's transcript shows that the within matter was called at 11:50 a.m., on May 24, 1983, in Department East “E” (Pomona), (Honorable Loren Miller, Jr., Judge Presiding), with the People being represented by Deputy District Attorney Philip Millett and defendant Gaeta by Deputy Public Defender Ronald Yorizane.

After the case was called the following colloquy occurred:

“THE COURT:  Mr. Gaeta, it's my understanding that you wish to withdraw your previously entered plea and enter a new and different plea;  is that correct?

“THE DEFENDANT:  Yes.

“THE COURT:  Is it your understanding you are going to receive the upper term in State Prison for this offense?   Is that correct?

“THE DEFENDANT:  Yes.

“THE COURT:  Now it's my understanding that with respect to this matter, that Mr.—pardon me—Judge Norman had indicated he would strike the priors for the purposes of sentencing, Mr. Yorizane, but with the understanding—and it's my understanding and it's my indication, Mr. Gaeta, to Mr. Yorizane, if the People should appeal the striking of the priors and the priors are reinstated, that I would allow you to withdraw your plea.  [¶ ] Is that your understanding?

“THE DEFENDANT:  Yes, Your Honor.

“THE COURT:  You may take the waivers, Mr. Millett.

“MR. MILLETT [Deputy District Attorney]:  All right.  [¶ ] Thank you.  [¶ ] For the record, the People object to the priors being stricken.”

The reporter's transcript shows that Deputy District Attorney Millett then took the requisite waivers from the defendant, including giving up the right to have a preliminary hearing along with the understanding that the court could read and consider the pre-plea probation report.

Following the waivers by the defendant the following colloquy occurred:

“MR. MILLETT:  All right.  [¶ ] Then Robert Mark Gaeta, as to felony Complaint No. A530092, Count I alleging a violation of Sections 664/459 of the Penal Code, attempted residential burglary, how do you plead?

“THE DEFENDANT:  Guilty.

“MR. MILLETT:  As to Count II alleging a violation of Section 4532(b) of the Penal Code, escape, how do you plead?

“THE DEFENDANT:  Guilty.

“MR. MILLETT:  And as to the additional allegation of prior convictions of felony within the meaning of Penal Code Sections 667(a), as to the allegation that you were previously convicted of Penal Code Section 459, residential burglary, on 9/4/81, case No. A561351, do you admit or deny that?

“THE DEFENDANT:  Admit it.

“MR. MILLETT:  And as to the allegation that on 10/23/81, that you were convicted of 459 of the Penal Code, residential burglary, case No. A527549, do you admit or deny that?

“THE DEFENDANT:  Admit it.

“MR. MILLETT:  Counsel, do you join in the waivers and the pleas?

“MR. YORIZANE:  Yes.

“THE COURT:  The Court finds that all waivers are knowingly, intelligently and understandingly made;  there is a factual basis for the plea;  the plea is freely and voluntarily made and the plea is accepted by the Court.  [¶ ] Do you waive time for sentence, Mr. Yorizane?

“MR. YORIZANE:  So waived.

“THE COURT:  Waive arraignment for judgment?

“․”

“THE COURT:  In this matter, let the record reflect I have read and considered the pre-plea report with the attached reports.  [¶ ] Probation is denied.   The defendant is committed for the upper term, which is three years.  [¶ ] The Court is imposing the upper term based upon the fact that the defendant is on probation out of Northeast E, case No. A561351, for which a violation hearing is pending.  [¶ ] The defendant is entitled to 35 days credit plus 18 days credit for good time-work time for a total of 53 days credit toward his sentence in this case.  [¶ ] As to Count II, probation is denied.   The defendant is committed for the median term of two years to run concurrently with Count I.

“With respect to the priors, number one, there is no record of the priors ever being filed, Mr. Millett.  [¶ ] For the purposes of—

“MR. MILLETT:  I think they were filed.

“THE COURT:  For the purposes of this hearing, the Court will strike the priors for the purposes of sentencing.  [¶ ] I am doing so because the defendant will be or could be returned to Department F on one of the priors for which he is on a CRC commitment and he is on probation for the other prior with a violation hearing pending.  [¶ ] The Court does not feel that it would be appropriate to sentence the defendant.

“MR. YORIZANE:  He would like a forthwith commitment to the Department of Corrections.

“THE COURT:  If they weren't filed, I will order them filed.

“MR. MILLETT:  All right.  [¶ ] Is the Court ordering them filed?

“THE COURT:  Yes.   I just made that observation, but I will order them filed.   He admitted them.

“MR. MILLETT:  Okay.”

THE TWO STRICKEN PRIORS

Pursuant to California Rules of Court, rule 12(a), I have augmented the record by ordering up the superior court file on the case at bench:  People v. Robert Mark Gaeta, superior court No. A530092, and the files on the two priors which were stricken;  namely, People v. Robert Mark Gaeta, superior court No. A527549 and People v. George David Diaz, Robert Mark Gaeta, Francine Orono, Anna Marie Volanos, superior court No. A561351.

Superior court case No. A561351:  Defendant Gaeta, along with three co-defendants, George David Diaz, Francine Orono, and Anna Marie Volanos, were charged in a three count information with violation of section 459 (burglary involving the residence of Robert Zook on April 18, 1981—Count I);  of violation of section 245, subdivision (b) on April 18, 1981, by willfully and unlawfully committing an assault with a deadly weapon;  to wit, an automobile and gun and by means of force likely to produce great bodily injury upon the person of Steven Avila, a peace officer engaged in performance of his duties (count II);  and of the same charge as against another peace officer, Richard Hill, on the same date (count III).

On July 24, 1981, defendant Gaeta pled guilty in Department Northeast “G” (Honorable B.A. Stoutt, Judge Pro Tem Presiding), to count I (burglary) and was released on bail.   On September 4, 1981, Gaeta returned to court and was sentenced to state prison for two years;  the sentence was suspended, and he was placed on probation for 5 years on condition he spend the first year in the county jail and was then remanded to custody.   Counts II and III were dismissed.2

On July 29, 1983, defendant Gaeta appeared for a probation violation hearing in Department Northeast “G” (Honorable George Xanthos, Judge Presiding).   The court found the defendant in violation of probation, having been convicted of the attempted burglary in case No. A530092 (the case on appeal herein).   The prior probation order in case No. A561351 was revoked and defendant was sentenced to two years in state prison “to run concurrent with any time now being served.”

Superior court No. A527549:  Defendant Gaeta was charged in a two count information of violation on August 21, 1981, of section 459 (burglary—count I) and of Health and Safety Code section 11550 (use and under the influence of an opiate—count II).   The burglary involved the residence occupied by Scott William Ehrig.3

On October 23, 1981, in Department East “F” (Honorable Sam Cianchetti, Judge Presiding), defendant Gaeta pled guilty to burglary in the second degree, a felony, following the court's statement of its intention to sentence him to three years in the state penitentiary which was suspended and referred to department 95 for an ultimate placement at the California Rehabilitation Center (CRC).   He was admonished if he was not acceptable to the CRC, he would be committed to prison for a maximum term of two years.   The court then continued the matter to November 10, 1981 to allow the defendant “a chance to work something out with the Pasadena court”;  the court noting that Gaeta was already currently on probation in a Pasadena court case.

On November 16, 1981 in Department East “F” (Honorable Sam Cianchetti, Judge Presiding), the defendant was sentenced on a pre-plea probation report to 3 years in state prison as to count I, sentence suspended;  count II was dismissed.

On December 15, 1981 in Department East “F”, the proceeding was suspended and defendant was committed to CRC.

On January 31, 1984, following a report from the CRC showing that the defendant had served 280 days inpatient time and outpatient time of 253 days, and that the defendant was not a suitable subject for their program,4 Judge Cianchetti sentenced the defendant to 3 years state prison with credit for custodial time served.  “Sentence to run concurrently with any other state prison sentence.”

DISCUSSION

The record on appeal of the case at bench shows that the charged felony (attempted burglary on April 6, 1983) and the sentencing hearing (on May 24, 1983) postdated the effective date of amendments to the California Constitution added by Initiative Measure by the voters on June 8, 1982 (commonly known as Proposition 8, the Victims' Bill of Rights) and sections 667 and 1192.7 of the Penal Code.

Section 3 of Proposition 8 added section 28, subdivision (f) to the California Constitution, and states in pertinent part:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”  (Emphasis added.)

Section 667, in relevant part, provides:  “(a) Any person convicted of a serious felony who previously has been convicted of a serious felony in this state ․ shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.  [¶] (b) This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this section to apply.  [¶] ․ As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of section 1192.7 ․”  (Added by Initiative Measure, approved by the people, June 8, 1982.)  (Emphasis added.)

Penal Code section 1192.7, in pertinent part, states:  “(a) Plea bargaining in any case in which the indictment or information charges any serious felony ․ is prohibited, unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.   [¶] (b) As used in this section ‘plea bargaining’ means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.  [¶] (c) As used in this section ‘serious felony’ means any of the following: ․ (18) burglary of a residence; ․ (25) any attempt to commit a crime listed in this subdivision other than an assault ․”  (Added by Initiative Measure, approved by the people, June 8, 1982.)  (Emphasis added.)

Unquestionably the felony convictions in the case at bench and in the two prior cases are “serious felonies” within the meaning of sections 667 and 1192.7.

The language of section 28, subdivision (f) of the California Constitution and Penal Code sections 667 and 1192.7 are clear and unambiguous.   For the reasons stated in People v. Fritz,** I conclude that in the case at bench the sentencing enhancements for the “serious felony” convictions are mandatory.   The trial court therefore exceeded its jurisdiction by striking the two prior felony convictions in case Nos. A527549 and A561351 in fashioning the defendant's sentence following conviction of the “serious felony” in the case at bench.  (Case No. A530092).

I join with the Fritz court in disagreeing with People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27.  (See also People v. Price (1984) 151 Cal.App.3d 803, 199 Cal.Rptr. 99.)

Furthermore, my reading of the reporter's transcript of the May 24, 1983, hearing (see supra ) leads me to conclude that not only did the court and counsel enter into a “plea bargain” expressly “prohibited” by section 1192.7, but were also aware of the shaky ground upon which they were treading in respect to the plea bargain and the striking of the priors.   No other reasonable interpretation can be drawn from the up-front statement by the court that “if the People should appeal the striking of the priors and the priors are reinstated,” that defendant could withdraw his plea.   That was clearly the understanding of all participants—the defendant, the court, and both counsel.5  The deputy district attorney preserved the issue of striking the priors for appellate review when he stated, “For the record, the People object to the priors being stricken․”

In any event, section 1192.7 prohibits “plea bargaining” in respect to a “serious felony” charged, as here.   That prohibition applies to “any bargaining, negotiations, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty ․”  Accordingly, whether or not the deputy district attorney acquiesced to the plea bargaining and failed to properly object during the sentencing proceedings is immaterial.   Both court and counsel exceeded their authority by ignoring the clear mandates contained in sections 667 and 1192.7 which compel corrective action on appellate review.

Nor does the reason for striking the priors given by the court below confer jurisdiction on it or clothe it with the discretion or power to strike the two prior felony convictions.6

In sum, “the sentencing error[s] of the type involved in this case [both as to “plea bargaining” and the striking of the priors] [are] “jurisdictional in nature and cannot be waived by the parties.”  (See People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 490, 84 Cal.Rptr. 480.)   Moreover, when the trial court struck out the allegations of the two prior felony convictions, as here, that order was in excess of the court's jurisdiction.  (See People v. Superior Court (Duran), supra, 84 Cal.App.3d 480, 484, 485, 84 Cal.Rptr. 480.)

I would remand the case for resentencing not inconsistent with the views expressed in Fritz, but afford defendant Gaeta 30 days from the finality of judgment in which to withdraw his plea and admissions, if he so desires.

FOOTNOTES

1.   In Orin, 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193, the prosecutor appeared in court ready to proceed to trial on all three counts unwilling to accept any plea to count III alone;  shortly thereafter, defense counsel informed the court defendant would enter a plea to count III, and the court agreed to accept the same “in the nature of a plea bargain in which the People do not wish to enter, as stated by [the prosecutor] ․” and indicated that on its own motion it would dismiss the other two counts.   Again the prosecutor objected to the proposed arrangement and indicated his readiness to proceed to trial on all counts;  after taking the waivers and defendant's plea, the prosecutor again objected, and after his probation and sentence the prosecutor moved the plea be withdrawn which motion was denied.  (Pp. 940–941, 120 Cal.Rptr. 65, 533 P.2d 193.)   Finding there was no plea bargain because the deputy district attorney did not agree, the court further found that the dismissal of the two counts could not have been ordered under a plea bargain but had to be pursuant to section 1385, Penal Code and in dismissing the counts the court abused its discretion and failed to state its reasons for dismissal in the minute order.

2.   Said Judge Miller in approving the negotiated plea “Judge Norman had indicated he would strike the priors for the purposes of sentencing ․ but with the understanding ․ if the People should appeal the striking of the priors and the priors are reinstated, that I would allow you to withdraw your plea.”

1.   Unless otherwise indicated, all code references are to the Penal Code.

2.   The probation report prepared by Deputy Probation Officer David B. Smith, dated August 21, 1981, recommended that probation be denied and defendant be sentenced to state prison.The report states that:  “The defendant categorically denies the consumption of alcoholic beverages and/or the use of dangerous drugs or narcotics.  [¶] The defendant was referred to the probation department narcotics evaluator for August 18, 1981 and failed to appear.   Defendant had indicated to the probation officer that he would refuse to be skin checked unless directly ordered to by the court.   He would make no other statements regarding his narcotic usage.”This report lists two prior convictions for violation of section 470 (forgery);  one on February 6, 1981 and another on February 9, 1981.   (Citrus Municipal Court case Nos. M–201507 and M–200366).   Proceedings were suspended.   The penalty was 27 days in the county jail to run concurrent, two years probation and restitution with $100 fine.In respect to superior court case No. A561351, the probation report states that:  “Based upon information obtained from the Temple City sheriff's office arrest report the facts of the offense appear to be essentially as follows:  It appears that the defendant in this case burglarized the residence of Robert Zook at 619 Mount Olive Drive, Bradbury at approximately six p.m. on April 18, 1981.   Witnesses observed a suspicious car parked at the victim's residence and saw two men carrying a television set from the residence.   Witnesses notified the sheriff's department and sheriff's deputies alerted by radio broadcast observed the described vehicle traveling southbound on the 605 freeway.   A number of patrol units followed the vehicle and a high-speed chase ensued.   On two occasions the vehicle swerved at the pursuing patrol car.   On the second occasion defendant Diaz drove his car into the right front portion of the patrol car as a sheriff's deputy fired a shot at him.   The bumpers of the two cars locked in the collision and the cars traveled across four lanes of the freeway over the freeway shoulder and 60 feet down in an embankment.   Defendant Diaz and his passengers, defendants, Francine Orono and Anna Volanos were placed under arrest.   Diaz sustained a gunshot wound in his left arm and a laceration on the right side of his head.   Gaeta sustained two lacerations and an injured arm.   One of the deputies overheard Gaeta in response to a deputy's question indicate that they had thrown a gun out of their car before they went over the road.   Victim's television set was recovered from the vehicle and Diaz was found in possession of a gold metal watch.”

3.   The probation report prepared by Deputy Probation Officer Greg Johnson, Pomona Valley area office dated October 7, 1981, states that on August 21, 1981, entry into the Ehrig residence was made through a kitchen window that had been broken and rings and a camera were stolen.   Later the same day, defendant Gaeta was in a car stopped for a traffic violation and arrested for being under the influence of a narcotic.   The stolen jewelry and camera were found next to the defendant in the vehicle.The probation report, which recommended that probation be denied, contains the following statement:  “Detective Gundersen, Baldwin Park police department, contacted the probation officer and indicated that the defendant was ‘ripping my city apart.’   He indicates that the defendant puts up a front of being a nice guy but is really a ‘jerk.’   He feels that defendant is good for at least three burglaries that occurred on August 12, 1981, and August 11, 1981, however, all of his witnesses are scared to death and refuse to testify.   One of them was so scared that they moved out of town.   Items taken in the burglaries included a shotgun and rifle.”The probation officer's “Evaluation” states:  “Defendant is a heroin addict who is committing burglaries to maintain his habit.   He has been treated very kindly by the courts this year, having been placed on probation on three different matters and yet defendant continues to be be [sic ] released back into the community and commit further burglaries and use heroin.   This officer believes that he has graphically made it very clear that he is incapable of remaining in the community without using heroin and stealing to maintain his habits.   He is neither legally eligible for probation at this point nor is he considered to be suitable for such consideration.”

4.   A report from the CRC dated January 21, 1982, and signed by two correctional counselors under the heading, “Analysis of Narcotic Usage” states:  “He [Gaeta] states he began using drugs at approximately age 19.   He states that he limited his use of drugs to marijuana until 1980 when, as mentioned above, he became involved in heroin use.   He reports a habit of a hundred dollars per day prior to his arrest for the burglaries that led to the CRC commitment.”

FOOTNOTE.   Editor's Note:  Hearing granted, July 12, 1984 (Crim. 23838).

5.   The People filed a petition for rehearing which included a declaration under penalty of perjury by Deputy District Attorney Philip Millett in which it is explained what transpired which was not included in the record on appeal.   The declaration, in pertinent part, states:  “I never participated in a plea bargain in this case.   I have opposed the final disposition of this case at all times.   I expressly and sincerely made my opposition known to Judge Norman, Judge Miller, and defense counsel, Mr. Yorizane.   I never consented or assented to the final disposition either expressly or impliedly.  [¶] This case was first heard in the Superior Court by Judge Norman.   The case was then at the complaint stage and I filed the prior felony allegations to prevent Mr. Gaeta from quickly pleading guilty and avoiding the priors.   I did this so Mr. Gaeta's sentence would be enhanced by 10 years.  [¶] During discussions of the case with Judge Norman and Mr. Yorizane, I insisted that Mr. Gaeta plead guilty to both counts and admit the priors.   I took the view that a 10–year enhancement was appropriate.  [¶] From the discussions with Judge Norman and Mr. Yorizane, it appeared to me that they understood that under Proposition 8 the trial court lacked jurisdiction to strike the priors.   Judge Norman asked me if my office would appeal if he were to strike the priors anyway.   I replied in the affirmative.   Further discussions ceased.  [¶] A short time later, I believe on a different date, the case was in Judge Miller's court.   Judge Miller stated that Judge Norman had now decided he would strike the priors and rather than send counsel, the file, etc., back to Judge Norman's court, he would handle the matter himself.   Judge Miller stated that he was aware of my objection to the disposition and that I intended to recommend an appeal from the striking of the priors.  [¶] When Judge Miller announced his intention on the record, I used the language ‘For the record, the People object to the priors being stricken ․’ in the sense that I wanted the record to show that I had objected so as to preserve the right to an appeal.   The phrase also was used in the sense that I previously had objected ‘off’ the record, but now my objection was ‘on’ the record.   Furthermore, since the judge and defense counsel were aware of the nature of my objection but the judge had indicated the he was going to strike the priors anyway in accordance with Judge Norman's wishes, I believed that it would be futile to further explain or argue in support of the objection.  [¶] I never intended to convey that my ‘for the record’ objection was made only as a matter of form.   I believed then, as I do now, that Mr. Gaeta owes the People of this state another 10 years.  [¶] I also believed that it was unnecessary to expressly object both to the striking of the prior convictions and to the plea bargain entered into by the defendant and the trial court.   Since the plea bargain encompassed the striking of the priors, I was of the opinion that the judge and defense counsel understood that through my objection to the striking of the priors I also was objecting to the plea bargain.  [¶] Executed on this 25th day of July, 1984, at Los Angeles, California.     _    (Sgd.) Philip Millett     Deputy District Attorney     Pomona Branch Office

6.   The reason given by the court was:  “I am doing so because the defendant will be or could be returned to Department F on one of the priors for which he is on a CRC commitment and he is on probation for the other prior with a violation hearing pending.  [¶] The court does not feel that it would be appropriate to sentence the defendant.”Defendant Gaeta was out on bail awaiting sentencing on the April 18, 1981 burglary of a residence (case No. A561351) when he committed another burglary of a residence on August 21, 1981.  (Case No. A527549).   He was on probation in case No. A561351 and on parole from the CRC in case No. A527549 when he was charged and convicted in the case at bench (case No. A530092) of attempted burglary on April 6, 1983.As previously noted, in prior case No. A561351 when the court revoked probation it merely reinstated the two-year sentence previously suspended “to run concurrent with any time now being served.”In prior case No. A527549, the court also merely reinstated the three-year sentence with credit for custodial time served in the CRC with the “sentence to run concurrently with any other state prison sentence.”Thus, for a total of seven (7) felony counts in three (3) separate cases the sentences on four (4) were ordered to run concurrently while three (3) were dismissed.   Therefore the defendant, admittedly a heroin addict with a $100 a day habit (see footnote 4, supra ), who has refused to cooperate with the efforts of CRC toward rehabilitation in order to free himself of his heroin addiction (see footnote 3, supra ), will, in essence, escape punishment for five or six felonies, and upon his release, if he continues his prior conduct, will probably further prey upon society in order to satisfy his heroin habit.In my opinion, sections 667 and 1192.7 pertaining to plea bargaining and enhancements were specifically designed and enacted, in the public interest, for the express purpose of preventing such a result.

LILLIE, Acting Presiding Justice.

DALSIMER, J., concurs.