People v. Flores

• Decision Date: 14 December 1971
• Docket Number: Cr. 15577
• Citation: 98 Cal.Rptr. 822,6 Cal.3d 305,491 P.2d 406
• Court: California Supreme Court
• Parties: , 491 P.2d 406 The PEOPLE, Plaintiff and Respondent, v. John Stanley FLORES, Defendant and Appellant. In Bank

Page 822

98 Cal.Rptr. 822

6 Cal.3d 305, 491 P.2d 406

The PEOPLE, Plaintiff and Respondent, v. John Stanley FLORES, Defendant and Appellant.

Cr. 15577.

Supreme Court of California,

In Bank.

Dec. 14, 1971.

Richard A. Townsend, La Jolla, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

Defendant appeals from a judgment entered following a plea of guilty to armed robbery (Pen.Code, §§ 211, 213).

Facts: By a 15-count indictment, defendant was accused of four counts of unlawful entry with intent to commit theft (Pen.Code, § 459), three counts of grand theft (Pen.Code, § 487, subd. 1), three counts of receiving stolen property (Pen.Code, § 496, subd. 1), one count of cultivating marijuana (Health & Saf.Code, § 11530.1), one count of forcefully violating another's personal liberty (Pen.Code, §§ 236, 237), one count of assault with a deadly weapon upon the person of a peace officer (Pen.Code, § 245, subd. (b)), one count of deterring police performance (Pen.Code, § 69), and one count of robbery (Pen.Code, § 211).

Defendant entered a plea of guilty to the robbery count, which reads: 'On or about December 20, 1969 (defendant) did feloniously rob a person of personal property, by means of force and fear, in violation of Penal Code section 211. And, it is further alleged that the defendant committed the above robbery while armed with a deadly weapon.'

Before accepting the plea, the trial court conducted a thorough examination, which went beyond the requirements of In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. The district attorney had agreed to dismiss all remaining counts if defendant pleaded guilty to first degree robbery, and such counts were dismissed following acceptance of defendant's plea.

After acceptance of the plea, the court asked defendant how the crime had been committed. He testified, 'I walked into the store and pulled a (loaded .22 automatic) on this dude, and told him to give me all of his money.'

The trial court later entered judgment of conviction, with the following notation in the sentencing provisions thereof: 'At the time of the commission of the offense, sections 3024 and 12022 of the Penal Code were inapplicable ¹ but defendant was armed within the meaning of sections 1203 and 12022.5 of the Penal Code, and the weapon was of the type commonly known as a 22 calibre revolver.'

Section 12022.5 of the Penal Code reads: 'Any person who uses a firearm in the commission * * * of a robbery * * * upon conviction of such crime, shall, in addition to the punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the state prison for a period of not less than five years. Such additional period of imprisonment shall commence upon expiration or other termination of the sentence imposed for the crime of which he is convicted and shall not run concurrently with such sentence. * * *'

Defendant filed a petition for writ of error Coram nobis, complaining that he had been entitled to an examination to determine if he were a narcotic addict, and at the same time separately gave notice that if the petition was denied, he exercised his right of appeal to the Court of Appeal. The petition was considered to be a statement of grounds for an appeal from a judgment entered upon a plea of guilty, and the trial court ordered that it be filed as a notice of appeal under rule 31(d) of the California Rules of Court. ²

Questions: First. Under the facts of this case, may defendant properly be subjected to the additional five-year term required by section 12022.5 of the Penal Code where a firearm has been used in the commission of a robbery?

No. In entering his plea of guilty, defendant in effect bargained for a sentence of no greater than imprisonment for five years to life. Plea bargaining has become an accepted practice in American criminal procedure (People v. West, 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409); and where a defendant's guilty plea has been entered as part of such a bargain with recognized authorities, and judgment entered contrary to the terms of the bargain, he may move to have his plea set aside, or the judgment may be modified to conform with the terms of his bargain.

The conclusion that a plea bargaining occurred in the present case is inescapable. The record shows that the indictment charged defendant with armed robbery and that prior to defendant's entering his plea of guilty the following proceedings occurred: 'THE COURT: Do you wish to waive those rights (defendant's constitutional rights)? THE DEFENDANT: Yes, sir. THE COURT: To what crime? THE DEFENDANT: Armed robbery. THE COURT: Do you know what the maximum sentence you can get for that is? THE DEFENDANT: Five to life. THE COURT: Knowing that, you still wish to enter a plea of guilty? THE DEFENDANT: Yes, sir.' Thus, defendant indicated in no uncertain terms, in the presence of the trial judge, the deputy district attorney, and defense counsel, his understanding that the maximum penalty which could be imposed upon him was imprisonment for five years to life.

As hereinabove appears, under section 12022.5 of the Penal Code, an additional five-year prison term is mandatory where a robbery is committed by one armed with a firearm. No one, however, advised defendant, at the time he entered his plea of guilty, that the law requires the imposition of this additional five-year term; and he was allowed to continue in the belief that the maximum penalty which could be meted out to him was imprisonment for five years to life. Under the circumstances, we hold that in entering his plea defendant bargained with recognized authorities for a sentence of no more than imprisonment for five years to life and that he...