PEOPLE v. BYRD (1986)

The People appeal from an order striking a prior serious felony conviction (Pen.Code, § 667).   We reverse and remand.

On November 14, 1983, defendant Byrd, along with two co-defendants,¹ was charged with robbery, a violation of Penal Code, section 211.²  It was further alleged that he had personally used a dangerous weapon in the commission of the offense within the meaning of section 12022, subdivision (b).³  An amendment to the information also charged that in May 1982 defendant had been convicted in state court of a serious felony, robbery, within the meaning of section 667, subdivision (a).⁴

On the date set for trial, defendant appeared in court with counsel and, without objection from the People, requested a conference to discuss a possible disposition of the pending charges.   After a brief recess, defendant, through counsel, announced that he intended to enter a plea.   The court replied that it had read and considered a pre-plea probation report and, as indicated to counsel, would sentence defendant to state prison for the upper term of five years on the robbery charge, impose an additional year for the use of the dangerous weapon, and strike the prior allegation.

Before proceeding with the plea, and without objection from the defense, the trial court granted the prosecution's motion to amend the prior by striking any reference to a state court conviction and, in its stead, alleging that in May 1982 defendant had sustained a conviction for federal bank robbery in violation of 18 United States Code section 2113(a).   The district attorney then objected to the proposed striking of the prior “as a violation of the Constitution of the State of California ․ [in addition to being] unwarranted, since Mr. Byrd was on Federal Probation at the time of the commission of the offense he is about to plead to.”

Following appropriate admonitions and waivers, defendant pled guilty to the robbery charge, admitted that he had personally used a dangerous weapon, and further admitted that he had been convicted of federal bank robbery, a serious felony within the meaning of section 667, subdivision (a).   After defendant waived time for imposition of sentence, the court stated:  “Let the record reflect that I have read and considered the pre-plea probation report.   Probation is denied.   The defendant is committed for the upper term.   The court is fixing the upper term based upon the fact that defendant was on Federal Probation at the time of the commission of the offense and, in addition thereto, the defendant had been on other probations within the State of California.  [¶] The Court is going to impose an additional year for the use of a knife pursuant to [section] 12022(b) of the Penal Code, for a total of six years․  [¶] With respect to the prior as alleged, for purposes of sentencing, the Court having used the prior as aggravation, the prior is stricken for the purposes of sentencing.”  (Emphasis added.)

In urging us to reverse, the People essentially raise two interrelated issues.   First, they contend that the trial court, by agreeing to strike defendant's prior conviction, engaged in plea bargaining in violation of Penal Code section 1192.7.   In the alternative, they argue that a prior serious felony conviction may not be used as a circumstance in aggravation and thus preclude its use as an enhancement.⁵  Before proceeding to a discussion of these issues, however, we must first determine whether a prior conviction for federal bank robbery ⁶ qualifies as a “serious felony” within the meaning of section 667, subdivision (a).

Section 667, a recidivist statute enacted by the passage of Proposition 8 in June 1982, prescribes a consecutive, five-year enhancement for each separately tried prior conviction of “a serious felony in this state or ․ any offense committed in another jurisdiction which includes all of the elements of any serious felony, ․” (Pen.Code, § 667, subd. (a).)  The section takes its definition of “serious felony” from the list of statutory offenses, enhancements, and nonstatutory offenses found in subdivision (c) of section 1192.7.  (People v. Jackson (1985) 37 Cal.3d 826, 831–832, 210 Cal.Rptr. 623, 694 P.2d 736;  Pen.Code, § 667, subd. (d).)  Robbery is the only felony described in that section which could be applicable here.  (Pen.Code, § 1192.7, subd. (c)(19).)

In their briefs, as at oral argument before this court, the parties debate at considerable length whether the crime of federal bank robbery includes all the elements of a California robbery.   Although in a somewhat analogous context, we have previously concluded that a conviction under 18 U.S.C. § 2113(a) constitutes a prior “serious felony” within the meaning of section 667, subdivision (a) (see People v. Miramon (1983) 140 Cal.App.3d 118, 126–134, 189 Cal.Rptr. 432;  but see People v. Leever (1985) 173 Cal.App.3d 853, 219 Cal.Rptr. 581, and People v. Enriquez (1984) 159 Cal.App.3d 1, 3–5, 205 Cal.Rptr. 238), we find it unnecessary under the circumstances of this case to delve into any detailed analysis of the arguments put forth by either the People or defendant.

 It is without question that the elements of a section 667 enhancement must be pleaded and, if contested, proved beyond a reasonable doubt.  (People v. Jackson, supra, 37 Cal.3d 826, 835, fn. 12, 210 Cal.Rptr. 623, 694 P.2d 736;  see In re Yurko (1974) 10 Cal.3d 857, 862, 112 Cal.Rptr. 513, 519 P.2d 561.)   Such proof may be predicated upon certified copies of prison records, court orders, probation reports, or a judgment.   (People v. Brucker (1983) 148 Cal.App.3d 230, 241, 195 Cal.Rptr. 808;  People v. Thompson (1981) 127 Cal.App.3d 13, 19, 179 Cal.Rptr. 328;  People v. Lizarraga (1974) 43 Cal.App.3d 815, 820, 118 Cal.Rptr. 208.)   Proof is not required, however, where the defendant voluntarily admits a properly pleaded enhancement pursuant to a plea bargain, after the required advisement and waiver of constitutional rights (In re Foss (1974) 10 Cal.3d 910, 930, 112 Cal.Rptr. 649, 519 P.2d 1073;  In re Yurko, supra, 10 Cal.3d at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561;  People v. Lizarraga, supra, 43 Cal.App.3d at pp. 817–818, 118 Cal.Rptr. 208), for in that situation the defendant's admission is not limited to the scope of the fact of the conviction, but extends to all allegations concerning the prior, even though the People might have been unable to prove those allegations.  (People v. Jackson, supra, 37 Cal.3d at pp. 835–837, 210 Cal.Rptr. 623, 694 P.2d 736;  People v. O'Bryan (1985) 37 Cal.3d 841, 843–844, 210 Cal.Rptr. 450, 694 P.2d 135.)

 In the case at bench, the information, as amended, properly alleged that defendant had been previously convicted of the serious felony “federal bank robbery ․ within the meaning of Penal Code section 667(a).”   The very terms of the allegation put defendant on notice that the prosecution intended to prove the elements essential to an enhancement under section 667.   Moreover, at the time the prosecution moved to amend the information, the defense offered no objection whatsoever.   Had defendant wished to contest the propriety of using the federal conviction as an enhancement, he had ample opportunity to do so.  (See People v. Thomas (1986) 41 Cal.3d 837, 843, 226 Cal.Rptr. 107, 718 P.2d 94.)   The record clearly demonstrates that defendant was fully aware that admitting the prior felony was not an idle act, but exposed him to an additional five-year sentence.⁷  He nevertheless expressly admitted the allegation.   Under the rules we have discussed, supra, defendant is now bound by that admission.  (People v. Jackson, supra, 37 Cal.3d 826, 835–836, 210 Cal.Rptr. 623, 694 P.2d 736;  People v. Welge (1980) 101 Cal.App.3d 616, 623, 161 Cal.Rptr. 686.)

Having concluded that federal bank robbery qualifies as a “serious felony” within the meaning of section 667, we now turn to the central question posed by this appeal, to wit, did the trial court participate in negotiating a plea bargain in violation of section 1192.7, or did it merely indicate the sentence which would be imposed?

Enacted by Proposition 8, section 1192.7 reads in pertinent part:  “(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.”  (Emphasis added.)

The statute contains a list of 25 “serious felonies” to which the prohibition applies.   Robbery is a serious felony.

 There is no question in this case but that defendant agreed to plead guilty and concede the validity of the enhancement allegation “in exchange” for assurances by the judge related to sentencing.   The trial court admitted as much when it told defendant it would not impose sentence in excess of six years and asked if any other promises had been made to induce him to enter his plea.

Defendant argues, however, that there was no “bargain” because the court neither stated nor implied that the assurance with respect to the sentence was conditioned upon his pleading guilty.   He characterizes the arrangement as an “indicated sentence” wherein the trial court merely stated what sentence it would 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;  People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276–277, 130 Cal.Rptr. 548.)   Such characterization, however, finds no support in the record.

Although the trial court did not expressly state in so many words that defendant was required to plead guilty in order to receive a maximum of six years in state prison, the terminology it did use was the substantial equivalent.   The transcript of the proceedings reflects the following:

“THE COURT:  Is it your understanding, Mr. Byrd, that I have read the probation report;  I indicated the following sentence to your counsel:  That I would impose the upper term, impose an additional year for the use of the knife, which is five plus one equals six;  that I will strike the prior, which could add an additional five years?  [¶] Is that your understanding?

“THE DEFENDANT:  Yes, sir.

“THE COURT:  Has anybody threatened you in any way or promised you anything other than the sentence I have just indicated to you in open court to get you to change your plea in the matter?

“THE DEFENDANT:  No, sir.”  (Emphasis added.)

Based upon the foregoing, we think it clear that unless some exception to section 1192.7 applies, its prohibition against plea bargaining is invoked by the facts of the instant case.   Contrary to the arguments advanced by defendant, no exception delineated in the statute is applicable here.⁸

Relying on People v. Superior Court (Felmann), supra, 59 Cal.App.3d 270, 130 Cal.Rptr. 548, and its progeny, defendant further contends that application of section 1192.7 to the facts of this case unconstitutionally restricts a trial court's inherent sentencing power.   We cannot agree.

Felmann essentially held that a court's inherent sentencing power includes the authority to announce an indicated sentence in advance of the entry of a plea, and that such power is not subject to legislative restriction by making it depend upon prosecutorial approval.   In so holding the appellate court observed:  “․ [A] court may indicate to a defendant what its sentence will be on a given set of facts without interference from the prosecutor except for the prosecutor's inherent right to challenge the factual predicate and to argue that the court's intended sentence is wrong.   If the prosecutor's argument does not persuade and if the facts as developed are as assumed for the purpose of indicating the sentence, that sentence may then be imposed.   If not, then defendant has the option of going to trial or accepting harsher treatment on a guilty or nolo contendere plea.   Unless form is exalted over substance, the facts which are the assumed basis of the sentence may be expressed in the form of the basis of a conditional plea reserving the defendant's right to withdraw the plea and go to trial in the event the court determines that the facts recited are not confirmed in a fashion which enables it to sentence the defendant in accord with the condition.   Substance and not form must control.”  (Id., at p. 276, 130 Cal.Rptr. 548.)

The concept articulated in Felmann, however, has no application to a plea bargain.   Long before the passage of Proposition 8 our Supreme Court made it unmistakably clear that a trial 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.]”  (People v. Orin (1975) 13 Cal.3d 937, 943, 120 Cal.Rptr. 65, 533 P.2d 193;  fns. omitted.)

 Under the foregoing authority, a trial court has no inherent power to engage in plea bargaining over prosecutorial objection, as occurred in the case at bench.   As we stated in People v. Superior Court (Smith), supra, 82 Cal.App.3d 909, 914, 147 Cal.Rptr. 554:  “The traditional role of the judge․ is one of approving or disapproving dispositions arrived at by counsel for defendant and the district attorney, who is the duly elected representative of the People.   When the judge steps out of that role and bargains directly with the defendant as to the manner in which the judge's discretion will be exercised the dignity of the judiciary is impaired and public confidence in the judiciary is diminished.”

Unfortunately, the distinctions between bargaining for a plea and indicating a sentence are often blurred.   All too frequently the latter practice is employed as a means around the prohibition against the former.   Such “game playing” cannot and will not be condoned.   Neither trial courts nor defendants may engage in plea bargaining under the guise of requesting and receiving an indicated sentence.   In an effort to prevent such abuse, the prosecution must, at every stage of the proceedings, clearly make its position known and fully articulate its objections for the record.   Trial judges as well must be ever mindful of their constitutional and statutory roles when exercising sentencing discretion in any particular case.   By this we do not imply that “magic words” are required to note an objection or a trial court's refusal to enter the bargaining arena.   What we do emphasize, however, is the importance of preserving a record free from ambiguity and doubt in order that sentencing procedures remain consistent with the goal of deterring plea bargaining in any of its myriad forms.

Having determined that the arrangement made between the trial judge and the defense in the instant case constituted plea bargaining in contravention of Proposition 8 and that section 1192.7 does not improperly restrict the court's inherent power, defendant's constitutional arguments are to no avail.

The only remaining question is whether the trial court, in imposing sentence, could use defendant's prior felony conviction as a factor in aggravation so as to preclude its further use as an enhancement.   We conclude that although the court possessed the authority to strike the enhancement, it failed to exercise its discretion properly.

In People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, the Supreme Court held that neither article I, section 28, subdivision (f) of the state Constitution (Proposition 8), or Penal Code section 667 eliminated a trial court's authority under section 1385 ⁹ to strike a prior conviction for purposes of sentencing.  “A long line of decisions, stretching over nearly 30 years, has established that a trial court's general statutory authority to ‘dismiss' an action ‘in furtherance of justice’ under section 1385 [fn. omitted] includes the power to ‘strike’ a prior conviction for purposes of sentencing, whether or not the conviction has been admitted or established by the evidence.”  (Id., at pp. 229–230, 219 Cal.Rptr. 460, 707 P.2d 833.) ¹⁰

In light of Fritz, Division 5 of this court recently addressed the practice of using a section 667 serious prior felony conviction as a factor in aggravation when imposing sentence.  (People v. Keys (1985) 175 Cal.App.3d 431, 220 Cal.Rptr. 760.)   In that case, as in the one now before us, the trial court struck the enhancement in order “ ‘to use the prior conviction as a circumstance in aggravation and impose the upper term.’ ”  (Id., at p. 434, 220 Cal.Rptr. 760.)   In reversing, Justice Ashby, writing for a unanimous panel, observed that the court's sentence “was obviously based on rule 441(b), California Rules of Court, which provides:  ‘A fact charged and found as an enhancement may be used to impose the upper term, whereupon the additional term of imprisonment prescribed for that fact as an enhancement shall be stricken.   The use of the fact to impose the upper term is an adequate reason for striking the additional term of imprisonment.’ ”   (Ibid.)  After reviewing the interplay between rule 441(b), section 667, and section 1385, the court held that “a trial court does not have discretion under rule 441 to avoid the five-year enhancement simply by using the fact of the enhancement to impose a more lenient upper prison term instead.”  (Id., at p. 435, 220 Cal.Rptr. 760.)

 We agree with the holding of Keys and adopt its reasoning here.   In our case, the record makes it clear that the trial court, believing it possessed sentencing discretion pursuant to rule 441(b), made no finding of circumstances which could support striking the enhancement other than that it took the prior into consideration in selecting the upper term.   This was improper.¹¹  The power of dismissal under section 1385 is not absolute and requires not only that the trial court's reasons be entered in the minutes (see People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502–503, 72 Cal.Rptr. 330, 446 P.2d 138;  see also People v. Andrade (1978) 86 Cal.App.3d 963, 974, 150 Cal.Rptr. 662) but also that dismissal be in “furtherance of justice,” which “requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People․”  (People v. Orin, supra, 13 Cal.3d at p. 945, 120 Cal.Rptr. 65, 533 P.2d 193;  emphasis in original.)

Clearly, the requirement that the reasons be set forth in the minutes is to permit a review of the order to determine if the trial court abused its discretion.   Such an abuse occurred here.

The order of dismissal is reversed.   The cause is remanded to the trial court with directions to vacate the sentence, permit defendant to withdraw his plea of guilty, enter a plea of not guilty, and proceed to trial or disposition of the matter by other currently authorized legal means.

FOOTNOTES

1.   The co-defendants are not parties to the instant appeal.

2.   Unless otherwise indicated, all further statutory references are to the Penal Code.

3.   Section 12022, subdivision (b) provides:  “Any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he was convicted.”

4.   Section 667, subdivision (a) provides an additional five-year prison term for repeat offenders convicted of a “serious felony” who previously had been convicted of another “serious felony.”

5.   At this juncture, we briefly note that defendant's challenge to the People's right to appeal is totally without merit.   Even a cursory reading of People v. Burke (1956) 47 Cal.2d 45, 53, 301 P.2d 241 [disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, which in turn was overruled in People v. Tenorio (1970) 3 Cal.3d 89, 91, 89 Cal.Rptr. 249, 473 P.2d 993] and People v. Espinoza (1979) 99 Cal.App.3d 59, 64–65, 159 Cal.Rptr. 894 (see also People v. Drake (1977) 19 Cal.3d 749, 756, 139 Cal.Rptr. 720, 566 P.2d 622), makes it clear that an order striking the charges of a prior felony conviction is an appealable order as specified in Penal Code section 1238.   That section provides in pertinent part:  “(a) An appeal may be taken by the people from any of the following:  (1) An order setting aside the indictment, information, or complaint․ (6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.”  (See People v. Lopez (1985) 163 Cal.App.3d 946, 948–949, 210 Cal.Rptr. 56.)

6.   18 United States Code section 2113 reads in relevant part:  “(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association;  or [¶] Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—[¶] Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.”

7.   After amending the information, the following colloquy occurred between the prosecutor and defendant:“MR. JENKINS [district attorney]:  Mr. Byrd, what I have done here is, I have filed an amendment to the charging document to the Information and it alleges essentially that in May of 1982 you were convicted of bank robbery in a Federal Court.  [¶] Do you understand what I have done?“THE DEFENDANT:  Yes.“MR. JENKINS:  Now what this means is that that could add five years to your State Prison sentence.  [¶] Do you understand that?“THE DEFENDANT:  Yes, sir.“MR. JENKINS:  It's my understanding that during the plea you are going to admit that you did suffer that bank robbery, that Federal bank robbery, that violation of 1982;  is that correct, Mr. Byrd?“THE DEFENDANT:  Yes, it is.“MR. JENKINS:  When I talk to you about your Constitutional rights today, I want you to bear in mind that you have the same Constitutional rights with respect to the proof of that Federal bank robbery violation as you do to the charges pending before this Court.  [¶] Do you understand what I just told you?“THE DEFENDANT:  Yes, sir.“MR. JENKINS:  So, when I talk about a jury trial and all those other things, you have the same rights with respect to that robbery prior.  [¶] Do you understand that?“THE DEFENDANT:  Yeah.”During the admonition and waiver of constitutional rights, the prosecutor further inquired:“MR. JENKINS:  Now, Mr. Byrd, as I have indicated to you, I filed an amendment to the Information that alleges on the 3rd of May, 1982, in the United States District Court of the Southern District of California, you were convicted of bank robbery in violation of Title 18 of the United States Code.  [¶] Do you admit or deny the prior felony conviction?“THE DEFENDANT:  I admit.“MR. JENKINS:  I am satisfied with the waivers and the plea, subject to the objections previously indicated of record.“THE COURT:  Counsel join in the waivers and the plea?“MR. ARIAS [defense counsel]:  Yes, Your Honor.“THE COURT:  The Court finds that all waivers are knowingly, intelligently and understanding[ly] made;  there is a factual basis for the plea;  the plea is freely and voluntarily made and the plea is accepted by the Court.”

8.   Defendant's contention that the People are precluded from raising the issue of an illegal plea bargain on appeal is, of course, meritless.   The claim is predicated on the assumption that at no time did the prosecutor ever mention the plea bargain, object to the taking of the guilty plea, or take exception to the sentence imposed on the ground that the “arrangement” was not negotiated with the People or was improper under section 1192.7.   Once again, defendant's characterization of the proceedings goes unsupported by the record.   As previously noted, the district attorney expressly objected to the striking of the prior and the resulting sentence on constitutional grounds.   Within the context of this case such objection clearly referred to Proposition 8 and its prohibition against plea bargaining.   The issue was thus preserved for appellate review.Even were we to assume that the objection was somehow inadequate, we nonetheless would conclude that the matter is properly before us.   The limitation on plea bargaining contained in section 1192.7 is, without doubt, mandatory.   It has long been settled that where a statute requires a court to exercise its jurisdiction in a particular manner or follow a particular procedure, an act beyond those limitations is in excess of jurisdiction.  (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 611, 94 Cal.Rptr. 250, 483 P.2d 1202;  Burtnett v. King (1949) 33 Cal.2d 805, 807, 205 P.2d 657.)   Accordingly, whether or not the People acquiesced to the plea bargain and failed to properly object is immaterial.   The trial court exceeded its authority by ignoring the clear mandate of section 1192.7, and such an abuse compels corrective action on appeal.  (See also Code Civ.Proc. § 647.)

9.   Section 1385 provides:  “The judge or magistrate may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons of the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”  (Emphasis added.)

10.   In order to nullify the Fritz holding, the Legislature has recently amended section 667 and 1385 so that a sentencing court no longer has authority to strike a prior serious felony conviction alleged under the terms of section 667.  (Stats.1986, ch. 85, §§ 1–4.)

11.   The only other possible reason suggested by the record for striking the prior is that defendant was willing to plead guilty.   In similar circumstances, the Supreme Court has held that a trial court abuses its discretion under section 1385 when it dismisses certain charges on the sole ground that the defendant entered a plea of guilty to other charges.  (People v. Orin, supra, 13 Cal.3d 937, 943–951, 120 Cal.Rptr. 65, 533 P.2d 193.)

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.