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

The PEOPLE, Plaintiff and Appellant, v. Lymond Earl WILLIAMS, Defendant and Respondent.

No. D022227.

Decided: November 17, 1995

Paul J. Pfingst, District Attorney, Gregory Thompson, Assistant District Attorney, Thomas F. McArdle, Paul M. Morley and D. Michael Ebert, Deputy District Attorneys, for Appellant. Ronda G. Norris, San Diego, under appointment by the Court of Appeal, for Respondent.

The People appeal a judgment convicting Lymond Earl Williams of petty theft with a prior (Pen.Code,1 §§ 484, 666) after the court struck a “two strikes” allegation pursuant to a plea bargain it made with Williams over their objection.   The People question the authority of the court to strike the allegation on its own motion, and in addition argue the sentence imposed is a void, illegal sentence bargain.   We agree with the People on each issue and remand the matter with directions to permit Williams to withdraw his guilty pleas if he chooses to do so and for further proceedings as may be required.


Williams, a recidivist felon, was arrested and prosecuted for stealing a $5.98 box of Tide laundry soap.   It was alleged his minor crime was a felony because of his prior convictions, and he was also charged with giving false information to a police officer (§ 148.9, subd. (a)), a misdemeanor.   It was alleged Williams was ineligible for probation (§ 1203, subd. (e)(4)), had served two prior prison terms (§ 667.5, subd. (b)) and had a prior serious felony “strike” (§ 667, subds. (d), (e)).

Before trial, the court personally engaged in sentence bargaining with Williams and his attorney, without participation by the People.   The court candidly referred to its discussions and the agreement reached as a “plea bargain.”   The bargain struck was that if Williams pled to all charges and admitted the allegations contained in the information, the court would strike the section 667 allegation at the time of sentencing.   The court cautioned Williams, however, that although it believed it had the authority to disregard the provisions of the three strikes legislation, a reviewing authority might determine it had no jurisdiction to do so, subjecting Williams to a greater sentence based upon the doubling of his base term as facially required by the three strikes legislation.   Williams acknowledged he understood this possibility.

Over the People's objection, the court specifically declared the provisions of three strikes law, section 667, subdivisions (d) and (e), unconstitutional as a violation of the separation of powers.   The court then denied probation based on Williams's lengthy criminal history, mostly nonviolent drug related offenses, and imposed the low 16 months base term plus 2 one-year consecutive sentences for the prior prison terms for a total sentence of 40 months.


 The People correctly argue the sentence imposed is void because it is an illegal sentence bargain.   Section 667, subdivision (g) prohibits using prior felony convictions in plea bargaining as defined in subdivision (b) of section 1192.7, a section which specifically includes any negotiations in which a guilty or no contest plea is obtained in exchange for a judicial promise relating to sentencing.   That is precisely what occurred here.   Williams's argument he pled to the face of the information and admitted all allegations does not affect the characterization of the agreement he had with the court.   Nor, for that matter, does the court's admonition the promise by which it induced Williams to plead guilty may in the future prove to be illusory.

 The prohibition against plea and/or sentence bargaining applies equally to the People and the court.   There is no separation of powers issue or other constitutional impediment to such legislative prohibition.

Williams cites decisions which approve a court's power to state an indicated sentence at the time a defendant pleads guilty to the face of a charging document.  (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1 Cal.Rptr.2d 333;  People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 147 Cal.Rptr. 554.)   They are, of course, inapposite here where we consider an absolute promise by the court, and one which it characterizes as such.   Had the court changed its mind and refused to strike the alleged prior conviction at the time of sentencing, Williams unquestionably could have withdrawn his plea.   Because the bargain offered by the court and accepted by Williams is prohibited by section 667, subdivision (g), it is unenforceable and the sentence imposed pursuant to it must be reversed.  (See People v. Anderson (1982) 129 Cal.App.3d 491, 181 Cal.Rptr. 68, cited in People v. Woodard (1982) 131 Cal.App.3d 107, 182 Cal.Rptr. 254.)

The judgment is reversed and the matter remanded to the superior court with directions to permit Williams to withdraw his plea of guilty should he choose to do so within 30 days following finality of our decision, and for such further proceedings as may be required.2


FN1. All subsequent statutory references are to the Penal Code..  FN1. All subsequent statutory references are to the Penal Code.

2.   The People acknowledge the court can lawfully impose a shorter sentence on remand if it exercises its discretion by not imposing prior prison terms pursuant to section 667.5, subdivision (b).

WORK, Associate Justice.

KREMER, P.J., and NARES, J., concur.