People v. Cobb
| Decision Date | 28 January 1983 |
| Docket Number | Cr. 5777 |
| Citation | 188 Cal.Rptr. 712,139 Cal.App.3d 578 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Walter Ray COBB, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appellant was convicted of being an ex-felon in possession of a handgun in violation of Penal Code section 12021. He complains that he was forced to undergo jury trial and imprisonment because of an arbitrary local court rule. Several days prior to trial he accepted the district attorney's offer of a county jail commitment. However, the court refused to consider the plea bargain because it was untimely. We are asked to hold that plea bargains must be considered by the court at any time.
On the night of February 6, 1981, two police officers were on patrol in a marked police vehicle when they saw a car parked on the wrong side of the street. The driver was talking to a woman standing nearby. As the police car came closer, the parked vehicle pulled out and sped away. Both vehicles came to a stop soon after the overhead lights on the patrol car were activated.
Appellant got out of the car in response to a request for identification. One officer noticed an open beer can on the transmission hump. While leaning in to check the can, he saw a handgun on the floorboard below the left front seat. One bullet was observed in the chamber of the gun and one in the magazine. Appellant was arrested.
In his defense, appellant testified that while visiting his aunt, he lent his car to her housekeeper, who, unbeknown to appellant, carried a gun for her own protection. She left the gun on the floorboard of the car before entering a store and forgot to remove it when she returned. Appellant testified he was unaware of the presence of the gun at the time of his apprehension. The housekeeper confirmed these circumstances. However, the jury thought otherwise and found him guilty. He was then sentenced to prison for the upper base term of three years.
In passing sentence, the court noted appellant's history of robberies involving the use of firearms, a prior prison term not charged as an enhancement, two "ninety-mile-an-hour chases, and repeated use of guns ... [and] threaten[ing] the innocent victim with a butcher knife in his home while perpetrating a burglary." Outside the presence of the jurors, appellant had admitted the charged prior armed robbery conviction.
THE "FRESNO RULE"
In judicial circles it is well known that in certain counties the presiding judge does not permit last moment plea bargaining. In other counties such a rule does not exist, or it exists more in theory than in reality, the judges finding it expedient to take pleas at any time. The record indicates that in the Fresno County Superior Court, ultimate management of the criminal calendar is in the hands of the presiding judge, who, by agreement of the judges of the court, requires a readiness conference to be held a week or so prior to trial. It is held to assure that the parties are ready for trial and to advise them that no plea bargain will be considered after that time.
Generally, such deadlines are supported as a means of reducing the confusion, hardship and inconvenience inherent in calling calendars. The priority of the criminal calendar and the frequency of pleas in lieu of trials often place civil litigants in a trailing position, which on trial day is at best an uncertain one. When pleas are taken at this time, the practice may well have a domino effect on other cases. It may leave courtrooms vacant if the calendar judge has failed to overschedule trials. Excusing unused jurors or, when expected pleas do not materialize, announcing there are insufficient judges or courtrooms for the balance of the calendar, is an unpleasant judicial task.
In this case, appellant and counsel appeared at the readiness conference. They were ready for trial; no plea was offered. They were well aware that henceforth any plea would have to be, as defense counsel stated, "straight up to the charges as alleged without any conditions."
The problem before us arose because after the readiness conference, the district attorney was advised that the gun found in the car and removed for evidence purposes had been destroyed. He proposed a plea bargain which called for no more than a local time commitment. Before defense counsel accepted the offer, the district attorney learned that the gun had not been destroyed. He did not try to revoke the offer. The expected acceptance came soon thereafter. Feeling himself morally bound by the agreement, the district attorney joined with defense counsel in seeking its presentation to a willing judge.
Two judges were approached and each refused to consider the plea. No record was kept when the presiding judge discussed and refused the plea. It is unclear whether he rejected it solely because of its untimeliness or also because he was told the gun had been located and the conditions for the offer had changed. We accept counsel's representation that the Fresno time rule was the reason.
As trial commenced, the plea issue was discussed again. The trial judge was not willing to countermand the presiding judge's decision. Appellant argued that he had a constitutional right to have a judge consider the plea bargain without any time restriction. His authority was simply "due process." He now urges that the Fresno rule prevents the exercise of discretion, is a form of coercion, and does not "necessarily ... increase the efficiency of the criminal process."
The Standards of Judicial Administration adopted by the Judicial Council, effective January 1, 1972, authorized this practice. Section 10, subdivision (a)(7) provides in part: "Finally, the court should adopt a rule or policy providing that the readiness conference is the last possible point of negotiation and that thereafter a defendant may plead only to the principal charge against him."
The Judicial Council is authorized to "adopt rules for court administration, practice and procedure, not inconsistent with statute...." (Cal. Const., art. VI, § 6.) Local court rules may be adopted if "not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." (Gov.Code, § 68070.) We find no inconsistent constitutional or statutory law or rule which would nullify the standard and local rule to which appellant objects.
The defendant in North Carolina v. Alford (1970) 400 U.S. 25, 38-39, 91 S.Ct. 160, 167-68, 27 L.Ed.2d 162, accepted a plea offer in order to avoid the death penalty. On appeal, he urged the plea agreement should not have been offered him and that instead, full proof of the crime should have been required by the trial process. In response, the Supreme Court held: "The States in their wisdom may take this course by statute or otherwise and may prohibit the practice of accepting pleas to lesser included offenses under any circumstances." (Id., 400 U.S. at p. 39, 91 S.Ct. at 168, emphasis added.) On the subject of unconditional guilty pleas, the court also noted that a criminal defendant "does not have an absolute right under the Constitution to have his guilty plea accepted by the court [citations], although the States may by statute or otherwise confer such a right." (Id., fn. 11.) The Fresno rule sets no time limit on taking unconditional pleas.
The California rules on plea bargaining have a parallel in the federal rules. Rule 11(e) of the Federal Rules of Criminal Procedure, adopted by Congress in 1975, and amended in 1979, outlines the proper procedure to be followed in taking a "plea agreement." 1 When the rule was proposed, federal judges expressed concern that its language mandated the court to consider all offers. To lay this fear to rest, the House Judiciary Committee Report stressed that the rule (United States v. Stamey (4th Cir.1978) 569 F.2d 805, 806.)
The refusal of a judge to consider a plea bargain one day after the expiration of the deadline fixed by the court for plea negotiations was upheld in United States v. Ellis (5th Cir.1977) 547 F.2d 863, 868. The prosecutorial prerogative and the rights of the defendant under rule 11(e) were considered. Approval was given to the trial court view that "strict adherence to [the court's] deadline order was necessary for proper scheduling of cases and to save time, difficulty and expense to jurors and witnesses who would otherwise have to be summoned needlessly to attend court sessions." It was also noted that one exception would lead to another, "with the result that the deadline would become meaningless." (Ibid.)
Section 1192.5 of the California Penal Code was enacted in 1970. 2 As subsequently amended, it sets forth "guidelines which the trial court can utilize in receiving and considering plea bargains involving pleas to lesser offenses." (People v. West (1970) 3 Cal.3d 595, 608, 91 Cal.Rptr. 385, 477 P.2d 409.) However, as in the case of the federal rule, there is no reference to the court's discretion to refuse to consider such a plea at all, or within certain time limits. Federal courts have rejected the suggestion that similar language compels the courts to hear and consider all plea bargains. (United States v. Moore (8th Cir.1981) 637 F.2d 1194, 1196.)
California decisions emphasize that successful judicial administration depends upon a positive attitude toward plea...
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