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

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of San Bernardino County, Respondent. Richard Dean TURNER, Real Party in Interest.


Decided: September 17, 1986

Dennis Kottmeier, Dist. Atty., and Joseph A. Burns, Deputy Dist. Atty., San Bernardino, for petitioner. No appearance for respondent. Keith C. Monroe, Santa Ana, for real party in interest.


People of the State of California petitioned this court for a writ of mandate ordering respondent court to vacate its judgment of March 27, 1986, imprisoning defendant (real party in interest) for a term of life without possibility of parole.   Petitioner contends respondent court exceeded its jurisdiction by accepting, over the People's objection, real party's admission of the special circumstances of his intent to kill the two victims, in exchange for a sentence of life imprisonment without possibility of parole.


In 1979, real party was tried by a jury on an information accusing him of the murders of Merle Claxton (count I) and Freda Claxton (count II).   There were three death-penalty-invoking special circumstances allegations:  (a) The murder of each Claxton occurred during the commission of a burglary (Pen.Code, § 190.2, subd. (a)(17)(vii)),1 and (b) the real party had in this proceeding been convicted of more than one offense of murder in the first or second degree (§ 190.2, subd. (a)(3)).

Before the commencement of trial, the People dismissed the substantive counts charging the underlying crime of burglary.2  The only theory of murder advanced by the People at trial was felony murder during the burglary of the Claxtons' home.   The jury convicted real party of two counts of first degree murder, found all three special circumstances allegations true, and fixed the penalty at death.

The Supreme Court affirmed the two first degree murder convictions and approved the court's instruction:  “ ‘If you should find the defendant guilty of murder, you are instructed that it is murder of the first degree.’   On the evidence before the court, the instruction was entirely warranted.   When the evidence points indisputedly to a homicide committed in the course of a felony listed in section 189 of the Penal Code, the court is justified in advising the jury that the defendant is either innocent or guilty of first degree murder.”  (People v. Turner (1984) 37 Cal.3d 302, 327, 208 Cal.Rptr. 196, 690 P.2d 669.)   The judgment affirming the two murder convictions has long been final.

The Supreme Court ordered the felony murder and multiple murders special circumstances set aside based on the trial court's failure to instruct the jury it must find real party either intended to kill or to aid in the killing of the Claxtons.  (People v. Turner, supra, 37 Cal.3d at p. 328, 208 Cal.Rptr. 196, 690 P.2d 669.   See Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862).

The matter was returned to Superior Court for retrial as to the special circumstances and the penalty phase, if necessary.

After the matter was returned to the trial court, a number of legal maneuvers commenced.   The prosecution filed a third amended information charging the two murders, an allegation each murder was committed in the course and commission of a burglary, an allegation each murder was intentionally committed, and an allegation real party is guilty of more than one offense of murder and that each murder was intentionally committed, and an allegation real party is guilty of more than one offense of murder and that each murder was intentionally perpetrated by real party.

The prosecution struck the two burglary special circumstances allegations and the allegation real party intentionally killed the victims from the third amended information.   The pared-down information charged the two murders and multiple murder special circumstances.

Real party filed a motion to strike the special circumstances allegation pursuant to sections 995 and 1385.   The prosecution opposed the motion.   Supplemental points and authorities in support of and in opposition to the motion were then filed.

The pared-down information and motions to strike came before the trial court for hearing on March 10, 1986.   Real party requested the court treat these motions as a petition for habeas corpus.   The court invited comment from the prosecution.   The prosecution declined.   The court advised the parties it would treat the motions as incorporating a petition for habeas corpus.

Because the statute of limitations had run on the substantive charge of burglary, the trial court perceived a problem with the special circumstances and the felony murder convictions based on the burglary.   It relied on People v. Green (1980) 27 Cal.3d 1, 52, 74, 164 Cal.Rptr. 1, 609 P.2d 468 [disapproved on other grounds People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal.Rptr. 112, 718 P.2d 99], and People v. Croy (1985) 41 Cal.3d 1, 16–18, 221 Cal.Rptr. 592, 710 P.2d 392, in reaching this conclusion.   It was concerned because “the district attorney has conceded that it is now too late to file the burglary and robbery charges against Mr. Turner;  the ultimate result of which would be that Mr. Turner, a vicious killer, in the Court's opinion, and one who was properly sentenced to death, in the Court's opinion, would thereupon be freed without having suffered any conviction at all.   I find that to be a situation which cannot be justified.”

The court then proposed the following bargain:  “Heretofore, the defendant has indicated that he might be willing to plead and accept life imprisonment without the possibility of parole.   I propose to continue these proceedings with the following understanding:  that I will not rule on the writ of habeas corpus;  I will not rule on the motions now.   I will indicate, and I will do so on the record and publicly, that if Mr. Turner is willing to admit his intent, I will sentence him to life imprisonment without the possibility of parole upon the condition that he waive his rights under Green and Croy.   However, if he accepts that offer and does waive his rights under Green and Croy, there will, also, be the further provision that if the district attorney appeals my ruling or sentence, that Mr. Turner will not be bound by his waiver of Green and Croy.   This would result in a certainty, a certainty—two certainties:  one, that Mr. Turner would be removed from society for the balance of his natural life and, two, that he would not be executed.

“Is there anybody that has any question about what I intend to do if Mr. Turner—I've got one—It is, also, clear, it is, also, clear that if the Court can find any way to follow the Supreme Court's Turner mandate to try Mr. Turner and only try the issue of intent, the Court is legally bound to do so.   I'm suggesting that if I can find a way around Green and Croy, I am required by law to find a way around Green and Croy.

“Anybody have any questions about the Court's proposal?”

On the day of the continued hearing, the prosecution moved to amend the information to reallege premeditated murder and the substantive crime of burglary.   The court denied the motion to amend.

The trial court then acknowledged its familiarity with section 1192.7 (prohibiting plea bargaining in serious felonies) and section 1192.5 (limiting the trial court to approval of a plea bargain negotiated by prosecution and defense attorneys).   The court then found the language “unless there is insufficient evidence to prove the People's case” (§ 1192.7) necessarily includes the concept of a legal prohibition of proof of the People's case.   The court coupled this finding with a finding “if such plea is not accepted by the prosecuting attorney” (§ 1192.5) necessarily requires a prosecuting attorney to exercise discretion.

Based on these conclusions, the court determined the district attorney had failed to exercise his discretion and if he had exercised such discretion, the manner in which he exercised the discretion was an abuse of discretion.

The court in its Supplemental Memorandum Opinion concluded:  “In view of the probability that the law, as enunciated in People vs. Green and People vs. Croy, supra, would apply to the defendant's conviction and in view of the finding that the District Attorney failed to exercise his discretion or abused his discretion and pursuant to Penal Code Section 1385;  (People vs. Orin [(1975) ], 13 C3d 937 at 949 [120 Cal.Rptr. 65, 533 P.2d 193];  People vs. [Superior Court] (Howard) [ (1968) ], 69 C.2d 491 at 505 [72 Cal.Rptr. 330, 446 P.2d 138];  People vs. Williams [ (1981) ], 30 C3d 470 [179 Cal.Rptr. 443, 637 P.2d 1029];  Witkin California Civil Procedure, 1985 Supplement, Section 302.)   The Court agreed that if the defendant admitted his intent to kill each of the victims and if he waived his rights under Green and Croy, the Court would sentence him to life imprisonment without the possibility of parole pursuant to Penal Code Sections 190.2 and 190.4.”

Based on the court's agreement to sentence real party to life imprisonment without possibility of parole rather than death, real party admitted his intent to kill each of the victims and waived his rights under Green and Croy.   Over the prosecution's objection, the court accepted the admissions and sentenced real party to life imprisonment without the possibility of parole.

The prosecution filed the current writ of mandate, challenging the court's jurisdiction to enter into and sentence real party pursuant to a plea bargain.


Real party by demurrer challenges the right of petitioner to proceed by way of writ instead of appeal.   In the case at bench the trial court purported to exercise its authority under section 1385 by entering into a plea bargain with real party over the objection of the People.

The imposition of sentence within legislatively determined limits is exclusively a judicial function.   The right to engage in any negotiation with the defense by which a disposition of the charge is secured without trial, is exclusively reserved to the executive.   The court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of judicial discretion (§ 1385) agree to a disposition of the case over prosecutorial objection.  (People v. Orin (1975) 13 Cal.3d 937, 942–943, 120 Cal.Rptr. 65, 533 P.2d 193.)

Section 1192.7 prevents plea bargaining in cases involving serious offenses including the offenses charged here.   The court exceeded its jurisdiction in the traditional sense because it was without subject matter jurisdiction to plea bargain with the defendant.  (People v. Superior Court (Ludwig) (1985) 174 Cal.App.3d 473, 475, 220 Cal.Rptr. 87.)

 When the trial court, as it did here, exceeds its jurisdiction in the traditional sense, a writ of mandate is appropriate.  (People v. Ludwig, supra, 174 Cal.App.3d at p. 475, 220 Cal.Rptr. 87.   See also People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138.)   The demurrer is overruled.

Turning to the merits, it is apparent sections 1192.5 and 1192.7 were contravened.   The trial court abandoned its role as an arbiter which is required by 1192.5, and entered into a plea bargain concerning serious felonies prohibited by 1192.7.   It is undisputed the real party agreed to admit multiple murder special circumstances, admit he intended to kill the two victims and waive any rights he might have under Green and Croy for a promise he would be sentenced to life imprisonment without possibility of parole, effectively precluding a death sentence.

The trial court's abandoning of its judicial role and entering into the realm of the executive was motivated by a desire to protect the public.   While the court's motivation was commendable, its ruling was based on several erroneous legal concepts.

The court apparently believed Green and Croy demanded the underlying felony be separately pleaded for a valid first degree murder conviction.   It concluded because the underlying burglary had been dismissed from the information before real party's 1979 trial, the special circumstances and the first degree murder convictions could not stand.   It then determined the statute of limitations had run on the underlying felony and neither the special circumstances nor the first degree murder conviction could be salvaged.

The trial court apparently believed, despite authority to the contrary (People v. Robertson (1982) 33 Cal.3d 21, 47, 188 Cal.Rptr. 77, 655 P.2d 279;  People v. Murtishaw (1981) 29 Cal.3d 733, 750–751, fn. 11, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Risenhoover (1968) 70 Cal.2d 39, 49, 50, 73 Cal.Rptr. 533, 447 P.2d 925;  People v. Golston (1962) 58 Cal.2d 535, 539, 25 Cal.Rptr. 83, 375 P.2d 51), the information must allege the underlying felony to legally support a conviction of first degree felony murder, and this could be raised by a petition for habeas corpus.   Not so.

 The crime of murder is independent of the underlying felony.   (People v. Mattson (1984) 37 Cal.3d 85, 93, 207 Cal.Rptr. 278, 688 P.2d 887;  People v. Cantrell (1973) 8 Cal.3d 672, 680–681, 105 Cal.Rptr. 792, 504 P.2d 1256 [disapproved on other grounds People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5, 149 Cal.Rptr. 265, 583 P.2d 1308 and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)   The fact the statute of limitations may have run on the underlying crimes of burglaries is immaterial to the charge and conviction of first degree felony murder.  (People v. Risenhoover, supra, 70 Cal.2d at p. 50, 73 Cal.Rptr. 533, 447 P.2d 925;  People v. Terry (1969) 70 Cal.2d 410, 423, 77 Cal.Rptr. 460, 454 P.2d 36.)

Finally, real party concedes the murder convictions are not in issue because they have been affirmed on appeal and are final.

 While proof of the underlying felony is essential to a conviction of first degree felony murder it need not be alleged as a substantive crime.   Real party's conviction of first degree murder based on the underlying felony was proper and unaffected by Green, Croy, or section 190.4.   There appear to be no factual, legal or constitutional grounds entitling real party to a writ of habeas corpus challenging his murder convictions.

 The trial court was correct as to the felony-based special circumstances under section 190.2, subdivision (a)(17).   The statute of limitations has run on the underlying felony (burglary);  the felony can no longer be charged and proved pursuant to the general laws.   The special circumstances based on the underlying burglary cannot be revived.  (See People v. Mattson, supra, 37 Cal.3d at pp. 93–94, 207 Cal.Rptr. 278, 688 P.2d 887;  People v. McDonald (1984) 37 Cal.3d 351, 378, 208 Cal.Rptr. 236, 690 P.2d 709;  § 190.4;  People v. Superior Court (Jennings) (1986) 183 Cal.App.3d 636, 228 Cal.Rptr. 357.)

Real party's contention that section 190.4 requires the People to charge the underlying felony before asserting the special circumstances of multiple murder is without merit.   The plain language of 190.4, the underlying felony must be charged and proved, is restricted to felony-murder special circumstances.   There is no legal or logical reason to require this language be applied to special circumstances of multiple murder.  (People v. Murtishaw, supra, 29 Cal.3d at p. 751, fn. 11, 175 Cal.Rptr. 738, 631 P.2d 446.)

 Proof of multiple murder special circumstances does not depend on proof an underlying felony was committed.  Section 190.2, subdivision (a)(3), only requires proof real party suffered two murder convictions in this proceeding.   (People v. Memro (1985) 38 Cal.3d 658, 704, fn. 54, 214 Cal.Rptr. 832, 700 P.2d 446.)

 Once the two murder convictions are proven, Carlos and Turner require the People prove the requisite intent to kill.   While intent to kill must be proven to sustain the special circumstances finding, there is no requirement that intent to kill be pleaded.   Sufficient notice intent to kill is an issue is provided by the pleading of the special circumstances of multiple murder.  (See People v. Turner, supra, 37 Cal.3d at p. 329, 208 Cal.Rptr. 196, 690 P.2d 669;  People v. Robertson, supra, 33 Cal.3d at pp. 47–48, 188 Cal.Rptr. 77, 655 P.2d 279;  People v. Velasquez (1980) 26 Cal.3d 425, 434, fn. 6, 162 Cal.Rptr. 306, 606 P.2d 341.)

The People are entitled to retry real party on multiple murder special circumstances to determine if the required intent to kill is present.   (People v. Turner, supra, 37 Cal.3d at pp. 328–329, 208 Cal.Rptr. 196, 690 P.2d 669.)

Even if we viewed the ruling as being partially based on section 1385, the result is the same.   Pre-trial dismissals under section 1385 may be used to effectuate plea bargains arranged between the People and the defense and approved by the court.   However, the orderly and effective operation of our adversary justice system and the criminal procedure envisioned by the Legislature would be frustrated if section 1385 could be used without legally sound and adequate reasons to terminate the fair prosecution of crimes properly alleged.   Undoubtedly that is the reason courts are required to state on the record their reasons for a dismissal under section 1385.

Here the trial court did not terminate the prosecution's right to trial because it felt real party was entitled to a lesser punishment.   On the contrary it believed real party was richly deserving of the death penalty.   Nor did it feel real party was being abused by the legal system.   In short the trial court was not motivated to plea bargain with real party based on the traditional “in the furtherance of justice” concepts, except in the inverted sense.   It acted as it did only because of a fear the real party might otherwise escape punishment.

 While we agree trial courts retain the right to strike special circumstances in the interests of justice (§ 1385), a trial court may not make a pre-trial election to unilaterally plea bargain away the People's right to a trial on properly pleaded special circumstances, nor may it dismiss under section 1385 without legally sound and adequate reasons.

 The trial court's entering into a plea bargain was based on an erroneous legal perception and cannot be considered a proper exercise of its sentencing discretion under 1385.   The trial court's denial of the People's right to a retrial on the multiple murder special circumstances was erroneous and cannot stand.

We note for the benefit of the district attorney, the real party's willingness to admit and the admission of his intent to kill the Claxtons was a part of the vacated plea bargain.   Neither of these facts may be placed in evidence or used against the real party on retrial.


Let a peremptory writ of mandate issue directing the respondent superior court to vacate its order sentencing real party to life without possibility of parole based on the illegal plea bargain.   The respondent court is further ordered to set the matter for trial as soon as practicable on the special circumstances of multiple murder and a penalty trial if necessary.   The alternative writ is ordered discharged.


1.   Unless otherwise indicated, all section references in this opinion are to the Penal Code.

2.   Real party was originally charged with two counts of burglary in addition to the two counts of murder.   The three-year statute of limitations has now run on the burglary counts.

RICKLES, Justice.

KAUFMAN, Acting, P.J., and McDANIEL, J., concur.

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