PEOPLE v. THOMPSON (1997)

The District Attorney charged Timothy Lamar Thompson (defendant) with robbery (Pen.Code, § 211;  statutory references, unless otherwise noted, are to the Penal Code) and alleged three prior robbery convictions, each a “strike” (§§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)), and, collectively, a “serious felony” prior (§ 667, subd. (a)).   Before trial, the court dismissed all the prior felony allegations because when defendant had pleaded guilty to them he had not “separately admitted” they were serious felonies (§ 969f, subd. (a)).

Defendant pleaded guilty and was sentenced to a five-year prison term.   The People appealed the order of dismissal and the resulting unlawful sentence.   We reverse.

DISCUSSION

 The trial court dismissed all the prior felony allegations because it misunderstood section 969f, subdivision (a).   The section provides:  “(a) Whenever a defendant has committed a serious felony as defined in subdivision (c) of Section 1192.7, the facts that make the crime constitute a serious felony may be charged in the accusatory pleading.   However, the crime shall not be referred to as a serious felony nor shall the jury be informed that the crime is defined as a serious felony.   This charge, if made, shall be added to and be a part of the count or each of the counts of the accusatory pleading which charged the offense.   If the defendant pleads not guilty to the offense charged in any count which alleges that the defendant committed a serious felony, the question whether or not the defendant committed a serious felony as alleged shall be tried by the court or jury which tries the issue upon the plea of not guilty.   If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant.”  (Italics added.)

The trial court construed the italicized sentence to mean that, in 1992 when defendant was charged with three counts of robbery without any additional allegations, in addition to pleading guilty to those three counts of robbery he had to “separately admit[ ]” each was a “serious felony.”   The trial court was mistaken.  (See generally People v. Leslie (1996) 47 Cal.App.4th 198, 54 Cal.Rptr.2d 545.)

Section 1192.7, subdivision (c) defines “serious felony.”   Robbery is included in that definition (§ 1192.7, subd. (c)(19)).   Section 969f did not require that defendant, in 1992, “admit” what section 1192.7, subdivision (c)(19) prescribed:  that robbery was a “serious felony.”

 What the italicized sentence does mean is that, in the instant case, where defendant was charged with robbery and serious felony prior convictions were alleged “[i]f the defendant pleads guilty” to robbery “the question whether or not the defendant committed a [prior] serious felony as alleged shall be separately admitted or denied by the defendant.”

This requirement, that provisions which increase punishment be pleaded and either admitted or proved, is not novel.  (See, e.g., §§ 969c, 969d.)

The trial court error requires a reversal of the judgment and a reinstatement of all the alleged prior convictions.   Upon remand, defendant may admit or deny them.   If denied, he is entitled to a trial on those allegations.

Finally, it may be useful to explain why we do not reverse the instant robbery conviction obtained by defendant's guilty plea.   There are at least three reasons.

First, the issue has not been raised on appeal.

Second, the record on appeal makes clear there was no linkage between the dismissal of the prior felony allegations and the defendant's guilty plea.   This was not a plea or sentence bargain case.   The trial court dismissed the prior felony allegations solely because of its mistaken understanding of section 969f.   Thereafter, defendant was offered a trial on the robbery charge and initially stated he wanted a trial.   Later, he changed his mind and pleaded guilty.   Before his guilty plea was accepted, defendant was explicitly and repeatedly informed the People would appeal and if successful the prior felony allegations would be reinstated subjecting defendant to a 30-year-to-life sentence.   Defendant was also expressly informed that a successful People's appeal would entitle defendant only to a trial on the prior felony allegations not the instant robbery charge.

Third, defendant has not (yet) made a motion to withdraw his guilty plea.   That motion, if made, should be considered by the trial court, not an appellate court.   We should not and do not prejudge the matter.

DISPOSITION

The robbery conviction is affirmed.   The order dismissing the prior felony conviction allegations is reversed.   The sentence is vacated.   The matter is remanded to the trial court for further proceedings consistent with this opinion.

WOODS, Associate Justice.

NEAL, J., concurs. JOHNSON, Acting P.J., concurs in the judgment only.