People v. Floyd P.

• Decision Date: 11 February 1988
• Docket Number: No. C001371,C001371
• Citation: 244 Cal.Rptr. 269,198 Cal.App.3d 608
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. FLOYD P., Defendant and Appellant.

Page 269

244 Cal.Rptr. 269

198 Cal.App.3d 608

PEOPLE of the State of California, Plaintiff and Respondent, v. FLOYD P., Defendant and Appellant.

No. C001371.

Court of Appeal, Third District, California.

Feb. 11, 1988.

David M. Shore, Sacramento, for defendant and appellant.

[198 Cal.App.3d 610] John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., W. Scott Thorpe and Doris A. Calandra, Deputy Attys. Gen., for plaintiff and respondent.

OPINION ON REHEARING

HARVEY, ^* Associate Justice.

Defendant appeals from a judgment convicting him of four counts of of lewd conduct with child under 14 years old in violation of Penal Code section 288, subdivision (a).

Defendant was originally charged in the information with the following offenses: count I through X inclusive--violation of Penal Code section 288, subdivision (b), count XI--violation of Penal Code section 261, subdivision (2), count XII through XV inclusive--violation of Penal Code section 288, subdivision (a), and count XVI--violation of Penal Code section 647, subdivision (a). The first 12 counts and count XVI involved defendant's daughter, S., and the remaining counts involved his younger daughter, C.

The defendant originally pleaded not guilty to all counts. On October 18, 1985, defendant signed a form acknowledging that he was charged with the recited offenses and then stating "I acknowledge the following plea bargain and desire to enter my plea pursuant to it." The document goes on to state: "Defendant pleads guilty to 4 counts of P.C. § 288(a)[.] (3 cts. v. [S] and 1 ct. v. [C].) All other counts dismissed. District attorney stipulates to P.C. 288.1 referral, and stipulates that the count regarding victim [C.] is to be stayed. Harvey waiver. Dism. cts." The document then states that the defendant acknowledges that he could receive up to 14 years in state prison plus 3 years of parole as a consequence of the plea. Near the bottom of the form, the district attorney signed the following statement: "The People of the State of California, Plaintiff in the above-entitled criminal action, by and through its attorney, the Shasta County District Attorney, concur in the defendant's plea of guilty as indicated in the above declaration and move the Court to dismiss all other charges pending in this action." The judge then signed an order at the bottom of the form that the pleas be accepted.

The transcript of the oral proceedings shows that the court questioned the defendant about the document. The defense attorney informed the court that, to carry out the bargain, the first three counts involving the victim, S., should be amended, whereupon the district attorney moved and the court ordered the first three counts amended to allege a violation of Penal Code section, subdivision 288(a). The defense attorney further informed the court that the count involving the victim, C., was to be stayed. The district attorney then said, "In other words, he is going to plead to four counts, your Honor, and we're really stipulating to a 12 year top." The transcript further shows that the district attorney informed the court, "[T]here would also be a plea to count XIII as alleged, your Honor, so it would be four counts at 288(a). Stipulation would be that any sentence on--on the fourth one, or [C.] as the victim, that that sentence would be stayed on that count, so there would be a maximum exposure of years."

The court then explained a Harvey waiver to the defendant, and the defendant assented to the Harvey waiver. ¹ Then, following the entry of the pleas of guilty to amended counts I, II and III and to count XIII, the remaining counts were dismissed.

The trial court sentenced the defendant to the midterm of six years for the violation of Penal Code section 288, subdivision (a), as alleged in count XIII, the count involving his daughter, C. The court sentenced defendant to six years each on counts I and II, but the court ordered those counts to run consecutively to the term imposed for count XIII. Because of the limitations of Penal Code section 1170.1 on the duration of consecutive terms, four years of each of those consecutive terms were stayed. Finally the court imposed a term of six years for the violation of Penal Code section 288, subdivision (a), alleged in count III, and the court ordered that term to run concurrently with the term imposed under count XIII.

Defendant has appealed, complaining that the court's sentence violates the plea bargain by imposing an unstayed sentence on count XIII and that the court erred in denying probation and imposing consecutive terms for counts I and II. Defendant also complains that different judges accepted the plea bargain and imposed sentence. (See People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220.)

Penal Code section 1192.5 provides that a court accepting a plea bargain "may not proceed as to such plea other than as specified in the plea." (See also People v. Flores (1971) 6 Cal.3d 305, 98 Cal.Rptr. 822, 491 P.2d 406.) When the trial judge imposed the sentence on count XIII as the principal term, therefore, he erred because the plea bargain specified that the sentence on that count would be stayed. The sentence as imposed was for offenses involving two minors, a factor considered by the trial court in imposing consecutive sentences. The terms of the plea bargain permitted execution of sentences only for offenses involving one minor. Hence, the judgment must be reversed and the matter must be remanded to the trial court.

We note, however, that on remand the trial court cannot simply resentence the defendant in accordance with the plea bargain. ²

When a defendant is convicted of a crime by either plea or verdict, it is the duty of the court to pass sentence and impose the punishment prescribed. (Pen.Code, § 12.) Pursuant to this duty, the court must either impose the prescribed punishment or grant probation in a lawful manner. (Pen.Code, § 12; People v. Santana (1986) 182 Cal.App.3d 185, 191, 227 Cal.Rptr. 51; People v. Cheffen (1969) 2 Cal.App.3d 638, 641, 82 Cal.Rptr. 658; People v. Superior Court (1962) 202 Cal.App.2d 850, 855, 21 Cal.Rptr. 178; People v. Morrow (1969) 275 Cal.App.2d 507, 514-515, 80 Cal.Rptr. 75.) We know of no general authority for the court to impose sentence and then to simply stay execution permanently. A court has authority to stay execution to avoid the restrictions of Penal Code section 654, prohibiting double punishment for the same act, or to avoid statutory restrictions on the duration of consecutive sentences under Penal Code section 1170.1, or for the purpose of granting probation under Penal Code section 1203. But the sentence here does not fall within any of those categories and there is no authority otherwise to simply stay permanently an imposed sentence.

Here, the plea bargain purports to authorize the court to exercise a power it does not have. Since the plea bargain cannot be carried out according to its terms, the orders entered on the basis of the plea bargain must be vacated.

We note, too, that the offenses charged here are listed in section 1192.7 and the prosecuting attorney failed to state on the record the grounds which permit a plea bargain under that section as required by section 1192.6. (People v. Cardoza (1984) 161 Cal.App.3d 40, 45, 207 Cal.Rptr. 388.) Since the matter must be remanded, the trial court can readily require compliance with sections 1192.6 and 1192.7 if there are further proceedings to which those sections apply. ³

Since the matter must be remanded for further proceedings, and the other contentions of the defendant may be made again, we will consider those for the guidance of the trial court.

The defendant's complaint that one judge accepted the plea bargain and another judge imposed sentence is frivolous. The record shows that the defendant entered an Arbuckle waiver on January 13, 1986.

The court's decision to deny probation was well within the...