People v. Gonzales

• Decision Date: 31 December 1986
• Citation: 233 Cal.Rptr. 204,188 Cal.App.3d 586
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Angel Luis GONZALES, Defendant and Appellant. F004880.

Page 204

233 Cal.Rptr. 204

188 Cal.App.3d 586

The PEOPLE, Plaintiff and Respondent, v. Angel Luis GONZALES, Defendant and Appellant.

F004880.

Court of Appeal, Fifth District, California.

Dec. 31, 1986.

[188 Cal.App.3d 587] Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Susana Halfron, Deputy State Public Defender, Sacramento, for defendant and appellant.

[188 Cal.App.3d 588] John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

The issues raised in this appeal are limited to noncompliance by the trial court with Penal Code section 1192.6, ¹, ² requiring the prosecuting attorney to provide a statement of reasons on the record for his recommendation that the court accept a proposed negotiated plea, and the violation of section 1192.7 ³ prohibiting plea bargaining in cases of serious felonies unless the case falls within one of three exceptions.

The issues being so limited, a sufficient statement of the facts is simply to relate that about 9 p.m. one evening the victim answered the door of his apartment and was confronted by two men. One of the men, later identified as appellant, said "This is from Lorraine," and the two men proceeded to beat the victim about the head. Appellant used a pipe to strike the victim, causing severe injuries.

In count one of the information appellant was charged with assault with a deadly weapon in violation of section 245, subdivision (a)(1); intentional infliction of great bodily harm within the meaning of section 12022.7 and a prior serious felony conviction for robbery within the meaning of section 667. In count two he was charged with burglary and the same section 12022.7 and prior serious felony enhancements.

After a preliminary hearing, appellant entered into a plea bargain whereby he agreed to plead guilty to the assault charge and intentional infliction of great bodily injury, in exchange for which the burglary charge and prior serious felony enhancements would be dismissed. The sentence was not part of the plea bargain. Based upon the prosecutor's recommendation, the court dismissed count two and sentenced appellant to the upper term of four years for assault and a consecutive three-year sentence for intentional infliction of great bodily injury, for a total term of seven years. There was no statement setting forth reasons as required by section 1192.6, and it does not appear that any of the exceptions listed in section 1192.7 are present.

DISCUSSION

Appellant contends he has been prejudiced by the errors because he was not afforded a complete record for review nor an opportunity for review of prosecutorial abuse of the plea bargain procedure. Furthermore, appellant contends that had the court heard the prosecutor's rationale for the recommendation or considered whether the case fit one of the exceptions to the prohibition against plea bargains in serious felony offenses, the court may have imposed the mid or lower term of imprisonment instead of the upper term.

While, as we will shortly explain, we do not reach the merits of appellant's contention, we note in passing that a similar argument was rejected by the court in People v. Cardoza (1984) 161 Cal.App.3d 40, 45, footnote 4, 207 Cal.Rptr. 388, where the court stated:

"Defendant Cardoza asserts that '[i]t is entirely possible that the court would have imposed a lesser sentence than the prosecutor recommended, had the court known the prosecutor's specific reasons. It is entirely possible that a plea bargain more favorable to the defendant would have emerged had the prosecutor been required to state ... specific reasons in open court, on the record.' We do not view section 1192.6, subdivision (c), as a shield for defendants against hard bargaining prosecutors. Its purpose is to prevent the prosecutorial abuse of the plea bargaining procedure, i.e., plea bargains which are too lenient. Defendants are protected in plea bargaining because the law prohibits the imposition of punishment in excess of that which was bargained for by a defendant. (s[s] 1192.1, 1192.2, 1192.5.) Section 1192.5 provides, inter alia, that 'the court may not proceed as to [a] plea other than as specified in the plea.' (Italics added.) We interpret this language to mean that the court lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree. (People v. Orin, supra, 13 Cal.3d 937, 942-943 [120 Cal.Rptr. 65, 533 P.2d 193].) Therefore, we reject defendant's argument that disclosure by the prosecutor could have resulted in a more favorable plea bargain or sentence."

We agree with these observations. Appellant's contention indeed rests upon speculation and presents slim arguable merit.

This language from Cardoza logically leads into a discussion of appellant's lack of standing to raise the issue of violation of sections 1192.6 and 1192.7. Cardoza traces the statutory history of this legislation and concludes that the provisions of section 1192.6 were intended by the Legislature to protect the public interest in vigorous prosecution of the accused, the imposition of appropriate punishment, the protection of the victims of crime, and to assure accountability by requiring public officials to disclose the basis of their actions. Thus, section 1192.6 was designed to benefit the public and not defendants. Similarly, we conclude that the Legislature in prohibiting plea bargains in serious felony cases under section 1192.7 clearly intended to protect the public and not defendants.

Further, appellant did not raise the error in the trial court, thus giving the trial court an opportunity to correct it. A defendant is precluded from raising an error for the first time on appeal where there has been an opportunity to object to the error below and a defendant has failed to avail himself of the...