PEOPLE v. SPENCER (1983)

In this mandamus proceeding, the People seek a peremptory writ to vacate a conditional plea of guilty made by real party in interest, Alvin Spencer, and accepted by respondent superior court after a preliminary hearing at which Spencer was held to answer on a charge of violation of section 246 of the Penal Code.¹  An information was filed which accused Spencer of the crime of violation of section 246 committed as follows:  “That the said ALVIN SPENCER on or about the 29th day of May 1982, at and in the County of Los Angeles, State of California, did willfully and unlawfully and maliciously discharge a firearm at an inhabited and occupied dwelling house located at 1776 North El Molino Avenue, Pasadena.” ²

The circumstances under which Spencer's plea were taken are not in dispute.   On August 26, 1982, the matter was set for pretrial conference on September 13, 1982, and for trial on October 1, 1982.   When the matter came on for hearing on September 13, 1982, counsel for defendant requested a ruling whether “[t]his is a restricted case by Prop 8 [³ ] because of the fact that it involves the use of a firearm” and urged “that this case would not be a restricted case in that the use of a firearm is one of the elements of the offense.”   A colloquy between the court and counsel ensued in which, to illustrate a point as to the hearsay basis of a defense assertion, the court quoted verbatim a portion of the preliminary hearing transcript which had been filed with the court on August 23, 1982.   Defense counsel stated that the case “might be disposable if the court ruled it was not a restricted case.”   The court indicated its view that the case was not restricted.   The prosecutor expressed his disagreement, saying:  “The People's position is it's a felony that a firearm was used in, and I won't participate in a pretrial conference.”   The court's response to this was to state:  “Fine.   We will have one without you, but you are invited to come back” (i.e., to join a discussion in chambers).   Thereupon, a recess was taken.   When the proceedings resumed, defense counsel asked leave to withdraw the plea of not guilty and to enter a plea of guilty to the charge, “[t]he understanding being if the probation report indicates that Mr. Spencer's rap sheet is as contained in the rap sheet that was provided to me in the discovery materials, that the court would sentence him to a year in county jail as the lid.”   The prosecutor did not concur in any such understanding and repeated the People's position that the case was “a restricted case under Proposition 8.”

 The court described the proceedings in chambers as follows:

“Mr. Barton [prosecutor] was present but took no part in the conversation that [defense counsel] and I had with respect to this particular plea bargain, and the court interprets this as being a crime in which the use of a firearm isn't an element of the offense, so the court indicated to [defense counsel] that if Mr. Spencer does not have any more of a record than [defense counsel] has represented to the court and is shown by the rap sheet, then a probationary sentence with a year in county jail will be the sentence;  however, Mr. Spencer, if your record is more extensive than that, the plea is wide open and you can go to state prison and you don't get to withdraw it.”

 The court then proceeded to take defendant Spencer's waivers.   Spencer was not, however, informed in accordance with Penal Code section 1192.5 that the court's approval was not binding, nor was there any inquiry made on the record to establish the factual basis for a guilty plea, as required by the provisions of section 1192.5.⁴

Defendant then pleaded guilty and probation and sentencing was set for October 19, 1982.   The People's petition was filed October 8, 1982.   A temporary stay was issued by this court on October 15, so that this court might have the opportunity to consider the petition.   Thereafter, on November 10, an alternative writ of mandate was issued.

 An examination of the transcript of the preliminary hearing discloses the basis of the charge against Spencer.   There were three witnesses, two of whom were occupants of the inhabited dwelling house, the front of which was damaged by shot apparently fired from a shotgun;  the other was Spencer's sister who resided directly across the street in a residence occupied by Spencer, his mother, the sister and her three children.   There was no eyewitness to the shooting.   The circumstantial evidence was to the effect that defendant told his sister he was going to kill three named occupants residing in the damaged dwelling or in a unit to the rear thereof.   Thereupon, Spencer obtained his gun from his room, loaded it and went out the door.   Spencer then inquired at the front door of the damaged house whether one of the threatened parties was present.   When told he was not, Spencer departed in the direction of the Spencer residence.   Shortly thereafter, several shots were heard, as was the sound of projectiles striking the house.   After the shots were fired, defendant was seen placing his gun in the back of his mother's car from which he removed it and returned it to his room.   There was no evidence that anyone other than Spencer was in possession of the gun or that any other person was associated with Spencer in the incident.

Contentions

The People contend:

(1) Section 1192.7 is invoked because:

(a) Real party is charged with a “serious felony,”

(b) A “plea bargain” was made, not a mere “indicated sentence” announced, and

(c) The exception where there is no “substantial change in sentence” is inapplicable;

(2) Section 1192.7 is mandatory and limits the court's jurisdiction;

(3) The enforcement of section 1192.7 in this case does not violate the California or the United States Constitutions;

(a) No impermissible limitation upon the sentencing power of the court is imposed;

(b) Retroactive application to preenactment crimes is not ex post facto law;

(4) Acceptance of a plea pursuant to plea bargain is reviewable by writ as conduct “in excess of jurisdiction.”

Real party contends to the contrary that:

(1) Section 1192.7 is not invoked because

(a) Real party is not charged with a “serious felony”;

(b) There was only an “indicated sentence,” not a plea bargain;  and

(c) The exception where there is “no substantial change in sentence” is applicable;

 (2) Section 1192.7 is directory only since it provides no sanction;

(3) Enforcement of section 1192.7 in this case would violate the California and the United States Constitutions;

(a) by impermissibly restricting the court's inherent sentencing power, and

(b) would be an ex post facto law if retroactively applied.5

(4) The court's acceptance of a plea, pursuant to a plea bargain, is not reviewable.

Discussion

Summary

The contentions of the People are sound and require the issuance of a peremptory writ commanding the trial court to vacate the plea.

I. LIMITATION OF SECTION 1192.7 IS INVOKED

The section 1192.7 limitation upon plea bargaining is invoked by the facts of this case.   Real party is charged with a “serious felony” and “plea bargaining” as defined in the section occurred.   The circumstances do not bring the case within the exception applicable where there is no “substantial change in sentence.”

A. “Serious Felony” Charged

In their points and authorities, the People assume that both subdivision (c)(8) and subdivision (c)(23) of section 1192.7 make “serious felony” status depend upon defendant's personal use of a firearm or other dangerous or deadly weapon.⁶  The brief filed by the Attorney General as amicus curiae does not so assume;  it simply ignores the question and states that because a violation of section 246 “by definition ․ requires the use of a firearm” a charge of violating said section charges a felony “in which the defendant used a firearm.”   The Attorney General's position either:  (1) overlooks the obvious fact that an aider or abettor may violate section 246 without personally using a firearm, or (2) interprets subdivision (c)(8) of section 1192.7 as making a serious felony of any crime in which a firearm is used.   The Attorney General's brief, however, tenders no argument in support of such an interpretation of subdivision (c)(8).

 The only such argument that occurs to us is that a comparison of subdivision (c)(8) with subdivision (c)(23) shows that when personal use was intended, specific language (“personally used”) was employed.   There are two difficulties with this argument:  (1) if subdivision (c)(8) was intended to make any use suffice, the obvious way to express such intent was to use the language “any other felony in which a firearm is used,” and (2) the language employed (“defendant uses”) has consistently been construed as meaning personal use in legislation prejudicial to criminal defendants.  (People v. Walker (1976) 18 Cal.3d 232, 242, 133 Cal.Rptr. 520, 555 P.2d 306;  People v. Reed (1982) 135 Cal.App.3d 149, 153, 185 Cal.Rptr. 169.)   Accordingly, we construe the last quoted portion of subdivision (c)(8) as making “serious” only felonies in which the defendant personally uses a firearm.

The information in this case does so charge when its language is given its ordinary meaning.   It does not simply state that real party violated section 246;  it adds a specification of how he did so.   The facts specified in this respect are “[t]hat the said ALVIN SPENCER ․ did willfully and unlawfully and maliciously discharge a firearm at an inhabited and occupied dwelling house․”  The ordinary meaning of this charge is plain.   It states that real party personally discharged the gun.

The catch is that this language is also adequate to charge real party as an aider and abettor.  Penal Code section 971 abrogates the distinction between aiders and abettors and principals and provides with respect to the former “no other facts need be alleged in any accusatory pleading against any such person that are required in an accusatory pleading against a principal.”   The information is thus ambiguous in that the proof thereunder could be either that the defendant discharged the firearm or aided and abetted such act.   Defendant's argument that the charges somehow are limited by the failure to include allegations of personal use as an enhancement is specious.   Such an allegation would add nothing to the charge.   Section 12022.5 specifically excludes enhancement in cases in which “use of a firearm is an element of the offense,” and violation of section 246 is not one of the crimes listed in section 1203.06 in respect of which probation is foreclosed to defendants who personally use firearms.   A fair characterization of the information, therefore, is that in ordinary language it charged real party with having personally used a firearm but that technically it did not foreclose the possibility that he was an aider and abettor.

 In view of the ambiguity in the information and the fact that section 1192.7 was newly enacted, resolution of the issue posed in the trial court properly called for an inquiry into the factual basis for the charge so that an appropriate amendment eliminating the ambiguity could be made.   The trial court had before it the material pertinent to that inquiry in the form of a reporter's transcript of the preliminary hearing.   A review of that transcript, which we must assume the court made since there was no other factual basis for the acceptance of the plea, discloses that the only logical inference which could be drawn from the testimony was that real party personally discharged his shotgun at an inhabited dwelling.   There was no suggestion therein of the existence of any person whom real party could have aided or abetted, and his antecedent threat to kill the occupants strongly negates his accomplice status.   In short, there was simply no evidence from which the court could find that the charged offense was aiding and abetting.   Thus, the order overruling the prosecutor's objection to plea bargaining cannot be sustained on the ground that no “serious felony” was charged in that real party was only accused of aiding and abetting.   If such was the meaning of the court's statement that “the court interprets this as being a crime in which the use of a firearm isn't an element of the offense,” it is simply unsupported by the evidence.

B. “Plea Bargaining” Occurred

 The pertinent part of section 1192.7 defines plea bargaining with considerable precision.   A discussion between the defendant and the judge is included if, but only if, it relates to an arrangement “whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the ․ judge relating to ․ the sentencing of the defendant.”   There is no question in this case but that there was discussion between real party's counsel and the judge which resulted in at least “assurances ․ by the ․ judge relating to ․ the sentencing of the defendant.”   Real party pleaded guilty to a crime for which authorized punishments were two, three or four years in the penitentiary.   He was permitted to condition his plea with the stated understanding that if his prior record, as shown by the probation report, coincided with a rap sheet included in the discovery materials “the court would sentence him to a year in county jail as the lid.”   Though in describing this arrangement the court stated that if real party's “record was more extensive than that, the plea is wide open and you can go to state prison and you don't get to withdraw it,” no right was reserved to alter the sentence if no further record were disclosed.   Consequently, real party's argument that no enforceable commitment or assurance was given is specious.   If other elements of the probation report, such as “the circumstances surrounding the crime and the prior history ․ of the person” (Pen.Code, § 1203, subd. (b)), made such disposition “unsuitable under all the circumstances” (People v. Mancheno (1982) 32 Cal.3d 855, 861, 187 Cal.Rptr. 441, 654 P.2d 211) despite identity of real party's prior record and the rap sheet, the commitment was not specifically enforceable but real party clearly was entitled to withdraw his plea.   Thus, if its conditions were met, real party's arrangement was no more nor less enforceable than any other such arrangement.

The only other element required to bring the arrangement within the definition of “plea bargaining” in section 1192.7, subdivision (b), is its requirement that the defendant's agreement to plead guilty is made “in exchange for” the concession or assurance with respect to the sentence.

Real party argues that there was no such exchange in this case because the court did not state or imply that the assurance with respect to the sentence was conditioned upon real party pleading guilty.   He characterizes the arrangement as an “indicated sentence” which involved the trial court merely “indicating 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 (Smith) (1978) 82 Cal.App.3d 909, 915–916, 147 Cal.Rptr. 554.)   If the characterization were correct, the conclusion that there was no “plea bargaining” within the provisions of section 1192.7 would follow.   But the characterization is not correct.

 Though the trial court did not expressly state in so many words that real party was required to plead guilty in order to receive the county “lid” assurance, the terminology it did use is the substantial equivalent.   There had just been a colloquy as to whether the case was “a restricted case” in which “plea bargaining” was prohibited under section 1192.7.   Obviously, this was of no moment if what was to be engaged in was not “plea bargaining” as defined in that section.   Consequently, when the court described the arrangement which had been reached as “this particular plea bargain,” permissible because the offense was not a “serious felony,” it was obvious that what it was doing was “plea bargaining” as defined in section 1192.7, that is, making a sentence commitment in exchange for real party's plea.

It is clear, therefore, that unless some exception to section 1192.7 applies, its “Limitation of Plea Bargaining” is invoked by the facts of this case.

C. No Exception Applicable

The only exception in section 1192.7 arguably applicable to this case is that provided in subdivision (a) for cases in which “a reduction or dismissal would not result in a substantial change in sentence.”   Real party argues that this exception is applicable because the disposition of which real party was assured was that which the court would dispense in any event.

 In part this is a restatement of the claim that it was only an “indicated sentence,” which we have already rejected.   However, it is also an assertion that the exception contemplates a comparison between a proposed sentence and a projected sentence theoretically deemed suitable upon conviction after trial.   Neither the language used nor sound policy supports any such interpretation.

The words “reduction or dismissal” patently refer to the reduction of a charge or the dismissal of a charge.   In either such event, there are ascertainable before and after sentences to compare which are fixed by the penalty statutes.   If the applicable sentence remains substantially the same after the reduction or dismissal, it is clear that the bargain cannot result in an inappropriately clement disposition.   The allowance of bargaining under such circumstances is therefore consistent with the general purpose of Proposition 8 to prevent such dispositions.   Such policy would, however, be thwarted by an exception which permitted uncontrolled bargaining with respect to sentence based upon comparison of a proposed disposition with a theoretically appropriate disposition especially where, as in the case at bench, the proposed disposition is an award of probation.   Such an award is required to be made in the light of a probation report “upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment.”  (Pen.Code, § 1203, subd (b).)   The exception to section 1192.7 surely was not designed to encourage pretrial determinations that probation is appropriate based upon only one of the three pertinent factors and thereby avoiding the limitation on plea bargaining.   To permit such an evasion would substantially frustrate the stated purpose to limit the plea bargaining process by exempting all cases in which the defendant does not have an extensive record of prior offenses.

 Nor is it of any significance that a subsequent probation report in this case recommends the same disposition as that which real party was assured.   That recommendation is expressly based upon the fact that “the court has ruled that this is a crime in which the use of a firearm is not an element of the offense, ․”  As we have held above, such ruling is unsupportable.   In any event, the report does no more than indicate that the promised disposition was one which the court might properly make.   That circumstance does not invoke any exception to the limitation imposed by section 1192.7.

II. THE “LIMITATION OF PLEA BARGAINING” IS MANDATORY AND RESTRICTS THE COURT'S JURISDICTION

Under the heading “Limitation of Plea Bargaining,” section 1192.7, subdivision (a), clearly and succinctly states:

“Plea bargaining in any case in which the indictment or information charges any serious felony or offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, is prohibited, ․”

 Respondent argues that the terms of section 1192.7, subdivision (a), are merely “directory,” not mandatory, and cites case law noting that the use of “shall” in a statute, absent any sanction for a violation of that statute, indicates that the statute is directory only.   While this argument may be valid where “shall” is the only language suggesting mandatory effect, it is inapplicable in the case at bench.   Nowhere in section 1192.7, subdivision (a), do we note the use of the word “shall.”

 However, the framer's use of the term “prohibited” manifests their intent to make the “Limitation of Plea Bargaining” mandatory.   In Bright v. Los Angeles Unified Sch. Dist. (1976) 18 Cal.3d 450, 462, 134 Cal.Rptr. 639, 556 P.2d 1090, the court stated:

“We observe that the word ‘prohibit’ is defined as follows:  ‘(1) to forbid by authority or command:  ․ 2.a:  to prevent from doing or accomplishing something ․’  (Webster's Third New Intern. Dict. (1963 ed.) p. 1813.)”

It would be difficult to conceive of more mandatory language than that which is employed in section 1192.7.

 When a trial court disregards a mandatory restriction upon its powers, it acts in excess of its jurisdiction.   As our Supreme Court stated when overturning a default judgment improperly granting relief greater than that demanded in the complaint:

“It is equally clear that by reason of the mandatory language of the statute (the court cannot give a default judgment in excess of the demand), the court's jurisdiction to render default judgments can be exercised only in the way authorized by statute.   It cannot act except in a particular manner, that is, by keeping the judgment within the bounds of the relief demanded.   It has been held repeatedly, and recently, that where a statute requires a court to exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.  [Citations.]  Certainly no statutory method of procedure or limitation on power could be more clearly expressed than that set forth in section 580 of the Code of Civil Procedure, supra.   Thus the court wholly lacked jurisdiction to render a judgment affecting the community property, for there was no demand for such relief.   Having no jurisdiction the judgment was not res judicata on this issue.   It was void.”  (Burtnett v. King (1949) 33 Cal.2d 805, 807, 205 P.2d 657.)  (Italics in original.)

 Given the mandatory language of section 1192.7, subdivision (a), the trial court's power to engage in plea bargaining is severely circumscribed;  it may be exercised only within the boundaries provided by section 1192.7.   Here, the trial court clearly exceeded the limits of its jurisdiction when it negotiated a plea bargain with real party, a defendant in a case involving a serious felony.

III. NO UNCONSTITUTIONALITY DEMONSTRATED

As construed above, section 1192.7 violates neither the California nor the United States Constitutions.   It does not impermissibly limit any inherent sentencing power of the court, and its application to prosecutions of preenactment crimes does not violate ex post facto principles.

A. No Inherent Power of Court Impermissibly Limited

Real party's contention that enforcement of section 1192.7 in this case would unconstitutionally restrict the court's inherent sentencing power is based upon (1) the claim that the arrangement in the trial court was merely an “indicated sentence.” and (2) the opinion in People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 130 Cal.Rptr. 548.  Felmann does hold that the court's inherent sentencing power includes the announcement of an indicated sentence upon which a conditional plea is based, and that such power is not subject to legislative restriction by making it depend upon prosecutorial approval.   The court stated in this respect (id., at pp. 276–277, 130 Cal.Rptr. 548):  “Hence, any construction of Penal Code section 1192.5 which requires prosecutorial consent to the permissible scope of judicial power in sentencing rather than consent to the defendant's offer of a bargain of a plea for lenient treatment is an unconstitutional invasion by the executive of power reserved to the judicial branch.”   But the rule stated in Felmann is expressly limited to an “indicated sentence” and has no application to a plea bargain.  People v. Orin (1975) 13 Cal.3d 937, 942, 120 Cal.Rptr. 65, 533 P.2d 193, unequivocally negates the existence of any inherent sentencing power of the court to negotiate plea bargains for “lenient disposition of the charges” without prosecutorial consent.   The Orin court said in this respect (id., at p. 943, 120 Cal.Rptr. 65, 533 P.2d 193):

“However, the court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case over prosecutorial objection.   Such judicial activity would contravene express statutory provisions requiring the prosecutor's consent to the proposed disposition, would detract from the judge's ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge's participation in the matter.  [Citation.]  [Fns. omitted.]”

 The dismissal of charges pursuant to such a bargain was reversed and the matter remanded with directions to permit the defendant to withdraw the plea.   It is clear, therefore, that there is no inherent power of courts to engage in plea bargaining over prosecutorial objection, as occurred in this case.   In a prior section of this opinion, we have already held that the arrangement made in the trial court was “plea bargaining” and not merely “an indicated sentence.”   Furthermore, we have held that section 1192.7 does not purport to restrict courts from stating an “indicated sentence.”   Consequently, the rule upon which real party relies simply has no application to this case.

B. Retroactive Application of Section 1192.7 Is Not Barred by Ex Post Facto Principles

 Defendant contends that the application of section 1192.7 to him would violate the federal ⁷ and state ⁸ prohibitions against ex post facto laws as defendant's acts occurred prior to the passage of Proposition 8.   We hold that section 1192.7 is not an ex post facto law as it effects a procedural change only and does not impact a substantial right of the defendant.

The ex post facto prohibition applies to retrospective laws which “disadvantage the offender affected by it.  [Citations.]”  (Weaver v. Graham (1981) 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 15, 23;  see also, Conservatorship of Hofferber (1980) 28 Cal.3d 161, 180, 167 Cal.Rptr. 854, 616 P.2d 836.)   The point of the prohibition was “to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.  [Citations.]  The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation.  [Citation.]”  (Weaver v. Graham, supra, 450 U.S. at pp. 28–29, 101 S.Ct. at pp. 963–964.)   Consequently, “no ex post facto violation occurs if the change effected is merely procedural, and does ‘not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.’  [Citations.]”  (Id., at p. 29, fn. 12, 101 S.Ct. at p. 964, fn. 12.)

As the California Supreme Court explained in People v. Ward (1958) 50 Cal.2d 702, 707–708, 328 P.2d 777:

“ ‘[I]t is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense charged against him.   Cooley in his Treatise on Constitutional Limitations, after referring to some of the adjudged cases relating to ex post facto laws, says:  “But so far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place.   Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose.   The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.” ’ ”

Examples of changes deemed procedural by California courts include:

“(a) permitting comment by the court;  (b) formerly incompetent witnesses made competent to testify;  (c) granting new rights of appeal to the state;  (d) changes in the statute of limitations;  (e) reception of previously inadmissible evidence;  (f) permitting refixing of sentences;  (g) extending time to pronounce judgment;  (h) eliminating one of the grounds for quashing an indictment.  (People v. Ward (1958) 50 Cal.2d 702, 708–709 [328 P.2d 777], disapproved on other grounds, People v. Morse (1964) 60 Cal.2d 631, 649 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810];  People v. Williams (1944) 24 Cal.2d 848, 850 [151 P.2d 244];  People v. O'Bryan (1913) 165 Cal. 55, 67–68 [130 P. 1042];  People v. Snipe (1972) 25 Cal.App.3d 742, 745, 747 [102 Cal.Rptr. 6];  In re Hicks (1938) 28 Cal.App.2d 671, 673–674 [83 P.2d 73];  People v. Talkington, supra, 8 Cal.App.2d 75, 83 [47 P.2d 368];  People v. Schmidt (1917) 33 Cal.App. 426, 436–439 [165 P. 555].)”  (People v. Sobiek (1973) 30 Cal.App.3d 458, 473, 106 Cal.Rptr. 519.)  (See also, Stickel v. Superior Court (1982) 136 Cal.App.3d 850, 857, 186 Cal.Rptr. 560 [repeal of Mentally Disordered Sex Offender statutes].)

Applying these principles to the present case, it is clear that section 1192.7 does not infringe upon the constitutional proscriptions against ex post facto laws.

The limitation of section 1192.7 does not affect defendant's substantive rights.   It does not deprive him of a defense, change the elements of the crime or affect his liability therefor.   Section 1192.7 does not limit the power of the court to impose a lenient sentence.   It merely eliminates a procedure by which such a sentence may be assured.   Such a limitation does not meet the requirements of an ex post facto law.

IV. ACCEPTANCE OF BARGAINED FOR PLEA REVIEWABLE BY WRIT

In the foregoing three sections of this opinion, we have held that the acceptance of real party's conditional plea by the trial court was the product of plea bargaining validly prohibited by section 1192.7 and thereby made in excess of jurisdiction.   The question remains whether the court's action is reviewable on the People's petition for extraordinary relief.

Real party places principal reliance upon the decision in People v. Superior Court (Smith), supra, 82 Cal.App.3d at page 916, 147 Cal.Rptr. 554, which states:

“The order accepting a plea of guilty or nolo contendere to a crime or crimes as charged in the information or indictment is not appealable (Pen.Code, § 1238) nor may it be attacked by way of an extraordinary writ.  (People v. Drake, 19 Cal.3d 749 [139 Cal.Rptr. 720, 566 P.2d 622].)”

This statement, however, must be construed in its context.   The court had already ruled (82 Cal.App.3d at p. 915, 147 Cal.Rptr. 554):  “The bargains which were struck are ones which do not require the concurrence of the district attorney,” and thereby upheld the propriety of their acceptance by the court.   Consequently, Smith is no authority in a case where the court's acceptance of a bargained plea is in violation of mandatory limitations upon the exercise of its powers.

Where such an excess of jurisdiction may have occurred, the court in Felmann found appropriate the issuance of “a peremptory writ of mandate ․ directing the trial court to rehear and reconsider defendant's conditional plea and to accept it only if to do so involves no consideration of more lenient treatment solely because of the plea” (59 Cal.App.3d at pp. 277–278, 130 Cal.Rptr. 548), thereby clearly asserting the authority of this court to control such excess of jurisdiction by mandate.

The trial court's acceptance of a bargained plea over prosecutorial objection was also reviewed and ordered vacated by our Supreme Court in People v. Orin, supra, 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193.   Consequently, real party's argument that “there is simply nothing against which a writ can issue in this case” is unsupportable.

 A court order in excess of its jurisdiction is reviewable by writ of mandate requiring the court to vacate such order.  (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202.)   In Edmonds, a peremptory writ was issued vacating a trial court's order granting defendant's renewed motion to suppress made during trial, on the basis that “the superior court had no jurisdiction or discretion to entertain at trial defendant's renewed motion to suppress․”  (Id., at p. 611, 94 Cal.Rptr. 250, 483 P.2d 1202.)   In like fashion, the trial court herein had “no jurisdiction or discretion to entertain” defendant's proposed plea bargain.   Thus, there was a lack of jurisdiction of the subject matter, just as there was in Edmonds.

The holding in Edmonds is explained in People v. Municipal Court (Kong) (1981) 122 Cal.App.3d 176, 183, 175 Cal.Rptr. 861, as follows:  “The court concluded that the trial court could not entertain a renewed motion to suppress made during trial.   Therefore, the trial court had no jurisdiction of the subject matter, i.e., the renewed motion to suppress.”   Obviously, in Edmonds, the court had jurisdiction of the defendant and the general subject matter—the determination of the defendant's guilt—but lack of jurisdiction to consider the particular motion was sufficient to warrant mandamus.

 There still remains the necessity to consider whether the importance of the question is overbalanced by the risk of harassment of the defendant as required by the decision of our Supreme Court in People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501, 72 Cal.Rptr. 330, 446 P.2d 138, which states:

“Assuming that in some cases the matter may be of such importance that mandate may be available to the People to review determinations where appeal does not lie, we are satisfied that the proper balancing of these considerations prohibits review by mandate at the request of the People where, as here, there is a danger of further trial or retrial.   Such a rule will give meaningful effect to the legislative policy limiting review and the burdens on the defendant.  [Citations.]”

 There is no doubt as to the importance of the question in this case.   If the trial court's action cannot be reviewed by writ, an important public policy enacted by the majority vote of the electors will effectively be thwarted.   On the other hand, the defendant will not be subjected to further trial or retrial simply because there has been no partial trial or complete trial as to which there could be a further trial or retrial.   If real party is subjected to a trial, proceedings against him will be no more extensive or harassing than any other criminal proceeding which proceeds to trial.   The extraordinary writ procedure is, therefore, wholly appropriate to the situation.

Let a peremptory writ issue directing the trial court to vacate its order accepting defendant's conditional plea of guilty and to conduct further proceedings consistent with the views above expressed.

FOOTNOTES

1.   Penal Code section 246 provides:“Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, inhabited house car, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for two, three or four years, or by imprisonment in the county jail not exceeding one year.   As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”All references herein to Code sections are to the Penal Code, unless otherwise specified.

2.   Pursuant to California Rules of Court, rule 12(a), the court has caused the entire superior court file to be transmitted to this court and made a part of the record of this proceeding.

3.   Section 7 of Proposition 8, which was adopted by the electorate June 8, 1982, and became effective June 9, 1982, provides as follows:“SEC. 7. Limitation of Plea Bargaining.   Section 1192.7 is added to the Penal Code, to read:“1192.7 (a) Plea bargaining in any case in which the indictment or information charges any serious felony or any offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, 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:“(1) Murder or voluntary manslaughter;  (2) mayhem;  (3) rape;  (4) sodomy by force, violence, duress, menace, or threat of great bodily harm;  (5) oral copulation by force, violence, duress, menace, or threat of great bodily harm;  (6) lewd acts on a child under the age of 14 years;  (7) any felony punishable by death or imprisonment in the state prison for life;  (8) any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant uses a firearm;  (9) attempted murder;  (10) assault with intent to commit rape or robbery;  (11) assault with a deadly weapon or instrument on a peace officer;  (12) assault by a life prisoner on a noninmate;  (13) assault with a deadly weapon by an inmate;  (14) arson;  (15) exploding a destructive device or any explosive with intent to injure;  (16) exploding a destructive device or any explosive causing great bodily injury;  (17) exploding a destructive device or any explosive with intent to murder;  (18) burglary of a residence;  (19) robbery;  (20) kidnapping;  (21) taking of a hostage by an inmate of a state prison;  (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;  (23) any felony in which the defendant personally used a dangerous or deadly weapon;  (24) selling, furnishing, administering or providing heroin, cocaine, or phencyclidine (PCP) to a minor;  (25) any attempt to commit a crime listed in this subdivision other than an assault.“(d) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”  (Italics added here, and elsewhere in this opinion unless otherwise indicated.)

4.   This error can be considered harmless in view of the content of the transcript of the preliminary hearing which was a part of the record.   In People v. Watts (1977) 67 Cal.App.3d 173, 181, 136 Cal.Rptr. 496, the First District said:“Since the grand jury transcript was contained in the superior court file, it may be presumed that the trial court had this information before it, and could satisfy itself therefrom that there was a factual basis for appellant Watts' plea.”

5.   Real party takes no issue with the proposition that section 1192.7 is intended to apply to future court proceedings regardless of when the underlying offense was committed.   Moreover, by saying that “plea bargaining” “is prohibited” “in any case” in which a serious felony is charged, the section clearly forecloses any argument that it is not to apply to a large class of cases in which the offense has already been committed.

6.   The memo states, “Section 1192.7 is applicable to defendant's case because he is charged with a felony in which he personally used a firearm.”

7.   Article I, section 10, clause 1 of the United States Constitution provides:  “No state shall ․ pass any ․ ex post facto law․”

8.   Article I, section 9 of the California Constitution provides:  “A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.”

 POTTER, Associate Justice.

KLEIN, P.J., and LUI, J., concur.