PEOPLE v. TORRES (1996)

OPINION

Defendant pleaded guilty to possession of a controlled substance but declined to admit two prior felony convictions alleged under the “Three Strikes” law.   Over the prosecution's objection, the court accepted the plea and imposed a jail sentence, thus electing to treat the offense as a misdemeanor.   The court made no finding as to the truth of the prior conviction allegations, believing they were irrelevant as defendant did not stand convicted of a third felony.

In the unpublished portion of this opinion, we follow the lead of four previous decisions in concluding the court had discretion to sentence the offense as a misdemeanor notwithstanding the Three Strikes law.   In the published portion, we conclude the court improperly permitted defendant to avoid prosecution on the prior conviction allegations without admitting them or obtaining the prosecution's consent to their dismissal.   We also conclude the People are not barred by double jeopardy from proceeding on the allegations on remand.

I

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with possession of methamphetamine, a controlled substance.  (Health & Saf.Code, § 11377, subd. (a).)  It was further alleged, pursuant to the Three Strikes law (Pen.Code, § 667, subds.(b)-(i)),¹ that defendant had previously been convicted of two serious and/or violent felonies, i.e., robbery and assault with a deadly weapon.

Defendant pleaded guilty to possession of a controlled substance but did not admit the prior convictions.   Possession of a controlled substance is a “wobbler,” which may be punished as either a felony or misdemeanor.   Pursuant to Penal Code section 17, subdivision (b), the court elected to treat the offense as a misdemeanor and imposed a sentence of 365 days in county jail.   The court made no finding as to the truth of the prior conviction allegations.   The People objected to the disposition, arguing a prison sentence was required under the Three Strikes law in view of defendant's prior felony convictions.

The People appeal, again contending the court had no discretion under the Three Strikes law to impose a sentence other than prison.   They also contend the court improperly engaged in plea bargaining by agreeing to a jail sentence in return for defendant's guilty plea, over the prosecution's objection.

II

DISCUSSIONA. Applicability of Three Strikes Law***

B. Unlawful Plea Bargain

At the sentencing hearing, the court stated:  “I have agreed this morning that Mr. Torres can enter into a plea to the Court in this case to a violation of Health and Safety Code Section 11377(a)․  [¶] In exchange for the plea to the Court, I've agreed I will sentence him to one year in the County Jail․”  The prosecutor objected and stated the People wished to proceed to trial.   Despite the prosecutor's objection, the court accepted defendant's guilty plea and imposed the one-year jail sentence.

 The court referred to the disposition as an “indicated sentence.”   The People argue that in fact it was an unlawful plea bargain.   A plea bargain occurs where “the defendant agrees to plead guilty in order to obtain a reciprocal benefit.”  (People v. Orin (1975) 13 Cal.3d 937, 942, 120 Cal.Rptr. 65, 533 P.2d 193.)   The court is not authorized to plea bargain without the acquiescence of the prosecutor.  (Bryce v. Superior Court (1988) 205 Cal.App.3d 671, 676, fn. 2, 252 Cal.Rptr. 443.) Thus, “[a] court may not offer any inducement in return for a plea of guilty or nolo contendere.   It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.”  (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276, 130 Cal.Rptr. 548.)

 However, “a court may indicate to a defendant what its sentence will be on a given set of facts without interference from the prosecutor․”  (Ibid.) “When giving an ‘indicated sentence,’ the trial court simply informs a defendant ‘what sentence he will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea.’ ”   (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271, 1 Cal.Rptr.2d 333.)  “[I]n contrast to plea bargains, prosecutorial consent is not required.”  (Ibid.)

The trial court's characterization of its disposition is not determinative.   In People v. Superior Court (Ramos ), supra, the court held the disposition was an indicated sentence even though the trial court used the words “promise,” “commitment” and “consideration” in accepting the plea.  (235 Cal.App.3d at p. 1266, fn. 2, p. 1267, fn. 3, 1 Cal.Rptr.2d 333.) The court stated the language was not determinative because the judge “thoroughly familiarized himself with the nature of the offense and the offender and indicated what an appropriate disposition would be, with or without a trial. ”  (Id., at p. 1265, 1 Cal.Rptr.2d 333, italics added;  see also People v. Trausch (1995) 36 Cal.App.4th 1239, 1247, fn. 9, 42 Cal.Rptr.2d 836 [where court took into account all circumstances, including nature of prior and current offenses and defendant's past history, disposition was a valid indicated sentence].)   In contrast, the court in People v. Superior Court (Ludwig) (1985) 174 Cal.App.3d 473, 220 Cal.Rptr. 87, held the trial court improperly engaged in plea bargaining where it referred to a “promise” of a given sentence “made to induce” the defendant to enter the plea.   The court concluded the defendant “agreed to plead nolo contendere ‘in exchange’ for assurances by the judge related to sentencing.”  (Id., at pp. 474–476, 220 Cal.Rptr. 87.)

 Here, the court stated it had “agreed” to the sentence “[i]n exchange for the plea.”   This language at least suggests the possibility the sentence was offered as an “inducement in return for a plea of guilty”;  if so, it was an improper plea bargain.  (People v. Superior Court (Felmann), supra, 59 Cal.App.3d at p. 276, 130 Cal.Rptr. 548.)   The absence from the record of any indication the court considered the nature of the offense or defendant's background or history also suggests the sentence was a result of the guilty plea rather than the court's exercise of its sentencing discretion.   At best, the record is ambiguous.

If this were the only problem with the disposition, we could simply remand the matter to allow the court “to correct the ambiguity.”  (People v. Superior Court (Felmann), supra, 59 Cal.App.3d at p. 277, 130 Cal.Rptr. 548.)   However, the disposition suffers from a more serious defect.   When defendant pleaded guilty to the current charge, he expressly stated:  “I do not admit any prior felony convictions under P.C. 667(b)-(i).”   The court specifically stated at the sentencing hearing it was “not striking” the allegations.   Thus, they remained unresolved.

An indicated sentence normally assumes the defendant admits all charges, including any special allegations.   No “bargaining” is involved, because no charges are dismissed or reduced.   Thus, “[w]here the defendant pleads guilty to all charges, all that remains is the pronouncement of judgment and sentencing;  there is no requirement that the People consent to a guilty plea.  [Citations.]  In that situation, the trial court may give an ‘indicated sentence’․”  (People v. Vessell (1995) 36 Cal.App.4th 285, 296, 42 Cal.Rptr.2d 241, italics added.)   In both Vessell (36 Cal.App.4th at p. 288, 42 Cal.Rptr.2d 241), and People v. Trausch, supra, 36 Cal.App.4th 1239, 1242, 42 Cal.Rptr.2d 836, the defendants admitted not only the charged offenses but also the allegations of prior convictions.   Consequently, there was nothing left to adjudicate and no basis for the prosecution to object to the plea.   In each case, therefore, it was held the trial court's agreement to treat the current offense as a misdemeanor was an indicated sentence and not a plea bargain.  (Vessell, supra, at p. 296, 42 Cal.Rptr.2d 241;  Trausch, supra, at p. 1247, fn. 9, 42 Cal.Rptr.2d 836;  see also People v. Superior Court (Ramos), supra, 235 Cal.App.3d at p. 1264, 1 Cal.Rptr.2d 333 [“career criminal” statutes do not prohibit indicated sentence where “the accused enters a guilty plea to all pending charges and admits all special allegations.”   (Italics added.) ].)

We recognize that the court in Bryce v. Superior Court, supra, stated in dictum that the prosecution “usually has no right to interfere in the process of extending an indicated sentence to a defendant willing to plead guilty to all or part of an information or indictment.”  (205 Cal.App.3d at p. 676, fn. 2, 252 Cal.Rptr. 443, italics added.)   In virtually the same breath, however, the court stated that “[n]otwithstanding the settlement of some counts, remaining allegations would have to be tried.”  (Ibid.) Thus, Bryce confirms that a defendant cannot, by pleading to fewer than all of the charges, avoid prosecution on the remaining allegations.

 Applying these principles, we conclude the court lacked authority to make the disposition it made over the prosecution's objection.   A court does not need the consent of the prosecutor to treat a wobbler as a misdemeanor rather than a felony.  (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 122, 95 Cal.Rptr. 524, 485 P.2d 1140.)   Here, however, the court did more than that.   By leaving the prior conviction allegations unresolved, the court allowed defendant to avoid prosecution on the allegations without admitting their truth.   At the same time, it deprived the People of their right to a determination of the truth of the allegations.   Although defendant was no longer subject to the Three Strikes law once the current offense was treated as a misdemeanor, it does not follow that the People had no legitimate interest in the determination of the prior conviction allegations.   First, section 667, subdivisions (f)(1) and (g), require the prosecution to “plead and prove” all prior felony convictions unless they are dismissed or stricken in the furtherance of justice pursuant to section 1385 or for insufficient evidence.   The allegations were not dismissed, and the court expressly stated it was not striking them.   The People thus had a statutory obligation to proceed on the allegations.²

Second, the fact the allegations, even if admitted or proven, could not enhance defendant's sentence in the current proceeding did not preclude their potential use for that purpose in a subsequent proceeding.   Section 1025 provides that a defendant's admission of a prior conviction is “conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings.”  (Italics added.)   In People v. Sanchez (1991) 230 Cal.App.3d 768, 281 Cal.Rptr. 459, the defendant admitted he used a deadly or dangerous weapon in committing an assault.   On appeal, he claimed the finding had to be stricken as premature because the prosecution did not seek any additional penalty based on the allegations.   Disagreeing, the court stated:  “Defendant's admission that he used a dangerous or deadly weapon ․ ‘could be used in a later proceeding to prove that the defendant had previously been convicted of a serious felony.’ ”  (Id., at p. 773, 281 Cal.Rptr. 459.)

The court's failure to permit the People to proceed on the prior conviction allegations, without requiring defendant to admit those allegations, thus conferred a clear “reciprocal benefit” on defendant in return for his guilty plea.  (People v. Orin, supra, 13 Cal.3d at p. 942, 120 Cal.Rptr. 65, 533 P.2d 193.)   Consequently, the disposition was an improper plea bargain and the judgment must be reversed.   In view of our disposition, we need not consider the People's related contention the court's actions were prohibited by the provisions of sections 1025 and 1158 requiring that prior conviction allegations be tried by the jury or court unless admitted by the defendant.

On remand, defendant may withdraw his guilty plea if he so elects.   The court may, upon proper exercise of its discretion, indicate the sentence it likely would impose on conviction of the current charge by trial or plea.   It may not, however, terminate proceedings on the prior conviction allegations unless the prosecution consents or defendant admits the allegations.   Although we affirm the right of the People to proceed absent an admission by defendant, we note the prosecution retains the power to move to dismiss a prior conviction allegation in the interest of justice under section 1385, subdivision (a).   We assume that in appropriate cases, as where, for instance, the public interest in proving the allegations does not justify the resources required to proceed, the prosecution will make use of its statutory authority.

C. Double Jeopardy

 Our conclusion that the People must be permitted to proceed on the prior conviction allegations notwithstanding defendant's guilty plea to the current charge requires us to consider defendant's contention that further proceedings would constitute double jeopardy.   The Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution provide that a person may not be put in jeopardy twice for the same offense.   Absent good cause for a different interpretation, the California provision should be interpreted to provide the same degree of protection as the federal provision.  (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1230, 6 Cal.Rptr.2d 242.)   The double jeopardy clause prohibits a second prosecution after either a conviction or an acquittal.  (Ohio v. Johnson (1984) 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425;  People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p. 1230, 6 Cal.Rptr.2d 242.)

Defendant argues the court's failure to make a finding as to the truth of the prior conviction allegations constituted an acquittal barring further proceedings against him on those allegations.   He cites a number of decisions holding that the jury's or court's failure to make a finding on a prior conviction allegation operates as an acquittal.  (People v. Eppinger (1895) 109 Cal. 294, 298, 41 P. 1037;  People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440, 18 Cal.Rptr.2d 371;  People v. Garcia (1970) 4 Cal.App.3d 904, 907, fn. 2, 84 Cal.Rptr. 624;  People v. Huffman (1967) 248 Cal.App.2d 260, 261, 56 Cal.Rptr. 255.)   In each of those cases, however, the truth of the prior conviction allegation was actually submitted for determination by a trier of fact, either the jury (Eppinger ) or the court after the defendant waived a jury (Gutierrez, Garcia, Huffman ).   Since the issue was before the trier of fact, the courts reasoned that the failure to make a finding supported an inference the allegation was determined not to be true.   (See, e.g., Huffman, supra, 248 Cal.App.2d at p. 261, 56 Cal.Rptr. 255 [“The recognized expertise of the trial judge compels us to the conclusion that he knew the result of not ruling upon the count containing the charged prior felony.”].)

Thus, in In re Candelario (1970) 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729, the defendant admitted the prior conviction but the court in entering judgment failed to refer to it.   The Supreme Court held the defendant could not be punished for the prior conviction.   The court observed that the circumstances suggested the trial court's omission was conscious and not an oversight.   Accordingly, “in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court.”   (Id., at p. 706, 91 Cal.Rptr. 497, 477 P.2d 729, italics added.)

In contrast, the Supreme Court in People v. Saunders (1993) 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093, held that where the jury was discharged before determining the truth of prior conviction allegations, double jeopardy did not bar trial of those allegations before a new jury.   The court said:  “[T]he jury that found defendant guilty of the current charged offense of burglary made no findings as to the alleged prior convictions, because those allegations had not been submitted to them.   Thus, there can be no implication in the present case that the jury disbelieved the allegations of prior convictions and therefore implicitly found those allegations not true.”   (Id., at p. 595, 20 Cal.Rptr.2d 638, 853 P.2d 1093;  see also People v. Pierson (1969) 273 Cal.App.2d 130, 134, 77 Cal.Rptr. 888 [where it was “abundantly clear” defendant did suffer prior convictions, the court's failure to make separate findings “ ‘[could] not reasonably be construed as a finding in favor of the defendant on the prior[s]].’ ”.)

 Here, it cannot reasonably be inferred the court concluded the prior conviction allegations were not true.   The court had no authority to determine the truth of the allegations.   Sections 1025 and 1158 entitle a defendant to a jury determination of that issue, absent a waiver.   Defendant never waived a jury on the prior conviction allegations.

Further, the record shows the court concluded that once it decided to treat the current offense as a misdemeanor, there was no reason to make a finding on the prior conviction allegations.   The purpose of the allegations was to increase defendant's sentence.   The court observed that if the current offense was a misdemeanor, the provisions requiring an increased sentence would not apply.   Quite obviously, the court made no finding because it believed there was no reason to do so, not because it concluded defendant was innocent.   The cases on which defendant relies in arguing the failure to make a finding was an acquittal therefore are inapposite.

Numerous cases establish that acceptance of a defendant's guilty plea to part of the charges against him is not an acquittal of, and does not bar further prosecution of, the remaining charges.   In Ohio v. Johnson, supra, 467 U.S. 493, 104 S.Ct. 2536, a defendant charged with four offenses pleaded guilty to two which were lesser included offenses of the other two.   The court held double jeopardy did not bar prosecution on the remaining charges.   It stated, “Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.   The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an ‘implied acquittal’ which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.”  (Id., at pp. 501–502, 104 S.Ct. at p. 2542, italics added.)

California courts have applied the same reasoning to special allegations such as the prior convictions alleged here.   In People v. Bryant (1992) 10 Cal.App.4th 1584, 13 Cal.Rptr.2d 601, the defendant pleaded no contest to the charged offenses but the trial court failed to have him admit several sentence enhancement allegations when it took the plea.   The court held further proceedings on the enhancement allegations were not barred:  “[T]he double jeopardy clause applies only if there has been some event, such as acquittal, which terminated the original jeopardy.  [Citation.]  Here, there has been no such event with respect to the [enhancement] allegations, nor would permitting further proceedings as to those allegations, under the circumstances of this case, allow the prosecutor a ‘second bite of the apple.’ ”  (Id., at p. 1597, 13 Cal.Rptr.2d 601.)

Similarly, in People v. Superior Court (Jurado ), supra, 4 Cal.App.4th 1217, 6 Cal.Rptr.2d 242, the defendant pleaded guilty after a special circumstance allegation was erroneously dismissed.   Citing Ohio v. Johnson, supra, the court held the guilty plea did not bar reinstatement of the special circumstance:  “Jurado was never in jeopardy for the special circumstance, nor was he ever convicted or acquitted of that charge․  We find no double jeopardy bar to ․ the reinstatement of the improperly dismissed special circumstances.”  (Id., at pp. 1235–1236, 6 Cal.Rptr.2d 242.)

 These authorities control here.   The purpose of the double jeopardy bar is to ensure “that the State does not make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence.”  (Ohio v. Johnson, supra, 467 U.S. 493, 498–499, 104 S.Ct. 2536, 2540.)   Conversely, double jeopardy cannot be applied so as to “deny the State its right to one full and fair opportunity to convict those who have violated its laws.”  (Id., at p. 502, 104 S.Ct. at p. 2542;  see also People v. Saunders, supra, 5 Cal.4th at p. 595, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)   Here, over the People's objection, the court improperly allowed defendant to avoid a trial of the prior conviction allegations, without being required to admit them.   The People thus were denied their “one full and fair opportunity” to prove the allegations.   We therefore conclude the People are not barred on remand from proceeding on those charges.

D. Additional Contentions†

III

DISPOSITION

The judgment is reversed.   The matter is remanded with directions to vacate the sentence and for further proceedings consistent with this opinion.

FOOTNOTES

1.   Further section references are to the Penal Code unless otherwise stated.

FOOTNOTE.   See footnote *, ante.

2.   At oral argument, defendant suggested this statutory obligation does not apply if the current offense is determined to be a misdemeanor and not a felony.   By the time that determination is made, however, the prior convictions already will have been pleaded as the statute expressly requires.   At that point, some disposition of the allegations must be made, even if the convictions no longer operate as “strikes” because the current offense is not a felony.   The statute gives the prosecution only two options if the defendant does not admit the prior convictions:  dismiss the allegations or proceed to trial on them.   Defendant's apparent contention that if the current offense is reduced to a misdemeanor the prosecution simply may leave the allegations unresolved is without support in the statute.

FOOTNOTE.    See footnote *, ante.

RICHLI, Associate Justice.

HOLLENHORST, Acting P.J., and McKINSTER, J., concur.