PEOPLE v. FIERRO (1984)

In this mandamus proceeding, the People seek a peremptory writ to vacate a plea of guilty made by real party in interest, Daniel David Fierro.   The respondent superior court accepted a guilty plea on two counts of robbery, admissions of personal use of a “deadly or dangerous weapon” and admission of a prior felony conviction.   During sentencing the court, on its own motion, struck the allegation of a prior conviction, and imposed a sentence of six years.

FACTS

On July 6, 1983, a felony complaint was filed in municipal court charging Fierro with two counts of robbery (Pen.Code, § 211) and alleging, as to each count, that he personally used “a dangerous and deadly weapon, to wit, a knife, in the commission of the offense” (Pen.Code, § 12022, subd. (b)).  Defendant pled not guilty at his arraignment.

On August 4, 1983, defendant appeared in superior court for a pre-plea hearing.   At that time, the People filed an allegation that defendant had suffered a prior robbery conviction under Penal Code section 667, subdivision (a).¹

Fierro's counsel had indicated to the court that defendant wished to enter a plea of guilty to both robbery counts, to admit the personal use allegation and to admit the prior felony conviction.   The court stated, “by way of indicated sentence,” that upon entry of such plea the court would impose a state prison sentence of six years.   The prosecutor took defendant's waiver of his constitutional rights and his plea of guilty to both counts;  he also took defendant's admissions as to the truth of the allegations of personal use of a weapon and a prior felony conviction.   However, he objected to the court's decision to strike the prior conviction for purposes of sentencing.

At defendant's request, sentencing was pronounced during this hearing.   Upon consideration of the pre-plea probation report, the trial court denied probation and sentenced defendant to the upper term of five years on Count I ² and added one year, to be served consecutively, for the use of the knife.   As to Count II, defendant was sentenced to the middle term of three years, to be served concurrently, and one year for use of the knife, execution of which was stayed since the same weapon was used in each robbery.   The court struck, for purposes of sentencing, the allegation that defendant suffered a prior felony conviction, and sentenced Fierro to a six year term in state prison.

ISSUES

The questions presented by this petition are:  (1) whether the trial court had the power to strike the allegation of a prior “serious felony” conviction, for purposes of sentencing, under Penal Code section 667 and (2) whether the trial court participated in negotiating a “plea bargain,” which is prohibited by Penal Code section 1192.7,³ or merely indicated the sentence which would be imposed.

DISCUSSION

I.Sentence Enhancement Under Section 667 is Mandatory.

 The People contend that the trial court was required to impose a consecutive five year sentence for the prior “serious felony” conviction and did not have the authority to strike it.⁴  In the petition, the People argue that section 667 of the Penal Code, added by the initiative measure Proposition 8, is mandatory and removes trial court discretion in sentencing except under certain circumstances.⁵

Section 667, subdivision (a), states:  “Any person convicted of a serious felony who previously has been convicted of a serious felony ․ shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”  (Emphasis added.)   Robbery is a “serious felony” within the meaning of that section.⁶

“The nature of the crimes that bring into play Penal Code section 667 so that a five-year enhancement will apply to the sentence in no way offends fundamental notions of human dignity, but rather reflects a reasonable and justifiable attempt by the electorate to both discourage recidivism and punish those who commit serious offenses.”  (People v. Villasenor (1984) 152 Cal.App.3d 30, 35, 199 Cal.Rptr. 349.)

 Fierro contends that the trial court had the power, for purposes of sentencing, to strike the prior felony conviction allegation and relies on the recent decision of People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27.   We disagree with the conclusion reached in that case and find that the clear and unambiguous language in section 667 requires a mandatory five-year sentence enhancement for each prior “serious felony” conviction.

 Even the Lopez court states:  “It cannot be contested that, by the use of the word ‘shall’ the imposition of the enhancements herein involved is mandatory.”  (Id., at p. 164, 195 Cal.Rptr. 27.)   In Lopez, the court based its opinion upon a finding that the language of subdivision (f) of section 28, of article I of the California Constitution, which was also adopted as part of the initiative measure Proposition 8, is unclear.  (Id., at p. 165, 195 Cal.Rptr. 27.)   That subdivision of the Constitution reads as follows:  “Any prior felony conviction of any person in any criminal proceeding whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.   When a prior felony conviction is an enhancement of any felony offense, it shall be proven to the trier of fact in open court.”   In finding that the words “without limitation” were ambiguous, the Lopez court concluded that the statute lacks sufficiently express language to prevent a trial court from striking, or otherwise rendering unenforceable, the enhancements provided for in section 667.  (147 Cal.App.3d at p. 165, 195 Cal.Rptr. 27.)   We find, to the contrary, that the language is clear and unambiguous;  and, more importantly, we find no basis to conclude that such language authorizes the striking of enhancements provided for in section 667.

 The initiative amends the state Constitution to specify that prior convictions shall be used for sentence enhancement purposes “without limitation.”   Since “[a] constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words” (Amador Valley Joint Union High School District v. State Board of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281) the provision of Penal Code section 667, allowing unlimited accumulation of sentencing enhancements based on prior “serious felony” convictions, is constitutionally authorized.

The Lopez court also relies on People v. Williams (1981) 30 Cal.3d 470, 477–490, 179 Cal.Rptr. 443, 637 P.2d 1029, where the California Supreme Court held that Penal Code section 1385 was applicable to special circumstances allegations and that the trial court had the power to dismiss such allegations.  (Id., at p. 490, 179 Cal.Rptr. 443, 637 P.2d 1029.)   In Williams, the Court ruled that dismissal by the trial court is permitted “where the Legislature has not clearly evidenced a contrary intent.”  (Id., at p. 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)   The Court went even further, however, stating that “the mere use of mandatory language in the statute does not indicate that section 1385 is inapplicable.”  (Id., at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029.)

 With respect to Proposition 8, there is more than “mere use of mandatory language in a statute” to indicate an intent which is contrary to allowing the trial court the discretion to strike allegations of prior “serious felony” convictions.   This is a constitutional mandate.   First, the constitutional language in question relates not only to enhancement, but to impeachment as well.   This establishes an intent to state a strong and pervasive policy that conviction of a felony is a serious matter and shall not be overlooked when a defendant repeats criminal behavior.   Secondly, the absence of either a “washout” provision or any procedure for ameliorating enhancements on the basis of mitigating circumstances reinforces this clear policy decision.   Further, Penal Code section 1170.1, subdivision (h), authorizes the trial court to strike certain specific enhancements set forth in other sections of the Penal Code, but does not specifically include section 667.⁷  (See People v. Lopez, supra, 147 Cal.App.3d at p. 164, 195 Cal.Rptr. 27.)

 The power to define criminal conduct and determine penalties is exclusively vested in the Legislative branch, subject to provisions of the Constitution.  (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)   Since legislation passed by initiative should be treated with the same dignity as enactments of the Legislature (see People v. Williams, supra, 30 Cal.3d at pp. 480–485, 179 Cal.Rptr. 443, 637 P.2d 1029), a constitutional provision that there be no limitation on the use of prior convictions for purposes of sentence enhancement precludes a contrary result.   As the Supreme Court has stated:  “We reject any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors for conduct made criminal by legislative enactment.  ‘[S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.’  [Citation.]”  (People v. Tanner, supra, 24 Cal.3d at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.) ⁸

 Therefore, we find that the trial court abused its discretion in striking the allegation of a prior robbery conviction when it imposed the sentence in this case.   We hold that the five-year sentence enhancement for each prior “serious felony” conviction identified in section 667 is mandatory.

II.

An Indicated Sentence Does Not Violate Section 1192.7.

 The People contend that the trial court participated in plea bargaining, which is expressly prohibited by section 1192.7 of the Penal Code, enacted by initiative measure Proposition 8.   Provisions of this section are applicable when an “indictment or information charges any serious felony.” ⁹  (Pen.Code, § 1192.7, subd. (a).)  Subdivision (c), defines “serious felony” and specifically includes “robbery” and “any felony in which the defendant personally used a dangerous or deadly weapon.”  (Pen.Code, § 1192.7, subd. (c)(19), (23).)   Subdivision (b) defines “plea bargaining” as “any bargaining, negotiating, or discussion between a criminal defendant, or his or her counsel, and the 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.”  (Emphasis added.)

 Fierro contends that the trial court engaged in an indicated sentence, not a plea bargain.¹⁰  We find that a plea bargain did not occur in this case even though the trial court imposed an improper sentence by striking the allegation of a prior “serious felony” conviction.   The trial court merely indicated the sentence it would impose if the defendant pled guilty to all charges and admitted all of the allegations.   This was done after the court had reviewed and considered the pre-plea probation report.

 An indicated sentence occurs when a trial court informs a defendant “what sentence it 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;  see also People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 273, 276–277, 130 Cal.Rptr. 548.)

 “The defendant may plead guilty to all charges and when he does so all that remains is the pronouncement of judgment and sentencing.”  (People v. Superior Court (Smith), supra, 82 Cal.App.3d at p. 915, 147 Cal.Rptr. 554.)   In the case at bench, Fierro's counsel expressed defendant's desire to enter a guilty plea on all counts and to admit both the use of a knife and a prior felony conviction.   The trial judge then indicated the sentence he would impose.  “The matter of ultimate sentencing is a matter of judicial discretion” and includes the authority to indicate the sentence the judge will impose.  (Id., at pp. 915–916, 147 Cal.Rptr. 554.)

 We find that it does not offend the judicial process to allow a trial judge to indicate the sentence to be imposed, so long as each counsel has the opportunity to express an opinion as to the appropriate degree of punishment prior to the pronouncement of the indicated sentence.   This does not violate either the letter or the spirit of the law as encompassed in Proposition 8, Penal Code section 1192.7.   The trial court is in a unique position to evaluate the information before it and then indicate and impose appropriate punishment.

 Plea bargaining does not occur when a sentence is merely indicated, since the defendant is not agreeing to plead guilty in exchange for any promises, commitments or concessions.   A defendant retains the right to go to trial and present any defense desired.   On the other hand, the choice may be to accept the burdens of criminal conduct.   If a decision to enter a plea of guilty is made, with knowledge that the trial court has evaluated the case in terms of an appropriate punishment, then a plea may be entered with certainty and without trepidation.   This method of indicating sentences saves the citizens of California the expense of a trial and relieves respective counsel of the burdens of unnecessary confrontations.

 We hold that section 1192.7 of the Penal Code does not prohibit a trial court from indicating the sentence it will impose after a defendant charged with a “serious felony” has entered a plea of guilty to all charges and admitted all enhancements alleged.

III.

Sentencing Error is Reviewable by Writ.

 In People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 148 Cal.Rptr. 698, the court found that although the People had no right to appeal from an invalid sentencing order, review was proper by extraordinary writ in light of the facts that the trial court's sentencing error was in excess of its jurisdiction, and that the case involved an important issue of interpretation of the new determinate sentence law, which needed prompt clarification in order to achieve uniformity in sentencing in accordance with the intent of the Legislature.  (Id., at pp. 484–486, 148 Cal.Rptr. 698.)

In the case before us, the trial court imposed an improper sentence upon the defendant by excluding the mandatory five-year punishment for the prior “serious felony” conviction, as required by section 667.   This case involves the important issue of interpreting Proposition 8, which needs prompt clarification in order to achieve uniformity in sentencing.   If the trial court's actions cannot be reviewed by writ, an important public policy enacted by the majority vote of the electors will effectively be thwarted.   Therefore, the trial court's sentencing error is reviewable on People's Petition for Writ of Mandate.

However, the portion of the petition which challenges the trial court's authority to indicate what sentence it will impose, and labels this behavior as “plea bargaining” is not appropriate for review by way of extraordinary writ.  “The judge's statement of his intention is not something that can be reviewed or set aside.”  (People v. Superior Court (Smith), supra, 82 Cal.App.3d at p. 916, 147 Cal.Rptr. 554.)

CONCLUSION

Sentencing enhancements for prior “serious felony” convictions under Penal Code section 667 are mandatory.   It is proper for the trial court to indicate the sentence it will impose after receiving a plea of guilty to all counts charged and receiving admissions to all enhancements alleged.

Since the trial court imposed an improper sentence, which must be corrected, we remand this case for resentencing.   Defendant will have 30 days from the finality of judgment in which to withdraw his pleas and admissions if he so desires.

DISPOSITION

Let a peremptory writ issue directing the trial court to set aside its order striking the prior felony conviction enhancement and resentence defendant in accordance with this opinion.   Alternative writs are discharged.

FOOTNOTES

1.   Penal Code section 667, subdivision (a), provides:  “Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”

2.   With regard to imposing the upper term, the court stated:  “Now, as factors in aggravation, I'm going to use the fact that it's the Court's intention not to impose any additional time for the prior conviction.   I'm also using as a factor in aggravation, as to Count 1, the fact that the Court does not intend to impose any additional time with respect to the robbery as to Count 2.”

3.   Penal Code section 1192.7, subdivision (a) states:  “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.”

4.   Incidentally, we note that defendant's admission of the prior felony conviction, which was taken by the prosecutor, was defective under the requirements set forth by In re Yurko (1974) 10 Cal.3d 857, 863–864, 112 Cal.Rptr. 513, 519 P.2d 561.

5.   Penal Code section 667, subdivision (b), states:  “This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this section to apply.”

6.   Penal Code section 667, subdivision (d), provides:  “As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”Penal Code section 1192.7, subdivision (c)(19), specifically defines robbery as a “serious felony.”

7.   Penal Code section 1170.1, subdivision (h), states:  “Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in Sections 667.5, 12022, 12022.5, 12022.6, and 12022.7 if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.”

8.   Recent decisions have found that the sentence enhancements in section 667 do not violate the constitutional provision against cruel and unusual punishment.  (See People v. Villasenor, supra, 152 Cal.App.3d at pp. 32–34, 199 Cal.Rptr. 349;  People v. Lopez, supra, 147 Cal.App.3d at p. 164, 195 Cal.Rptr. 27.)

9.   Fierro maintains that no information or indictment was ever filed against the defendant in this case and, therefore, section 1192.7 is inapplicable.   This assertion is correct inasmuch as the prohibition of section 1192.7 does not come into effect until an indictment or information is filed.   However, we choose to address the substance of the People's contention rather than base our decision on the precise status of the criminal proceedings.

10.   Fierro also contends that the People never objected to nor challenged the trial court's acceptance of the guilty plea based on section 1192.7.   We find merit to this contention but choose to decide this case on a substantive rather than a procedural basis.

ARABIAN, Associate Justice.

LUI, Acting P.J., and DANIELSON, J., concur.