People v. Gore

• Decision Date: 15 August 1995
• Docket Number: No. B089331,B089331
• Citation: 37 Cal.App.4th 1009,44 Cal.Rptr.2d 244
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 37 Cal.App.4th 1009, 42 Cal.App.4th 1, 46 Cal.App.4th 1396 37 Cal.App.4th 1009, 42 Cal.App.4th 1, 46 Cal.App.4th 1396, 95 Cal. Daily Op. Serv. 6463, 95 Daily Journal D.A.R. 11,008 The PEOPLE, Plaintiff and Appellant, v. Jeffrey Martin GORE, Defendant and Respondent.

Page 244

44 Cal.Rptr.2d 244

Previously published at 37 Cal.App.4th 1009, 42 Cal.App.4th 1, 46 Cal.App.4th 1396

37 Cal.App.4th 1009, 42 Cal.App.4th 1, 46 Cal.App.4th 1396,

95 Cal. Daily Op. Serv. 6463,

95 Daily Journal D.A.R. 11,008

The PEOPLE, Plaintiff and Appellant, v. Jeffrey Martin GORE, Defendant and Respondent.

No. B089331.

Court of Appeal, Second District, Division 7, California.

Aug. 15, 1995.

Rehearing Denied Aug. 31, 1995.

Review Granted Nov. 22, 1995.

Review Transferred to the Court of Appeal Oct. 1, 1997.

[46 Cal.App.4th 1399] Gil Garcetti, Dist. Atty. of Los Angeles County, Diana L. Summerhayes and Brent Riggs, Deputy Dist. Attys., for plaintiff and appellant.

Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Alex Ricciardulli, John Haveson, and Tracy A. Mooney, Deputy Public Defenders, for defendant and respondent.

FRED WOODS, Associate Justice.

In this "three strikes" case (PEN.CODE, § 667¹, subds. (b)-(i)) we consider: (1 ) the prohibition against plea bargaining (§ 667, subd. (g)); (2 ) a dismissal "upon the application of the" defendant (§ 1385, subd. (a)); (3 ) a dismissal for reasons not "set forth in an order entered upon the minutes" (§ 1385, subd. (a)); (4 ) section 667, subdivision (f)(2) and the separation of powers doctrine; and (5 ) section 667, subdivision (e)(2)(A)(ii) and the prohibition against "cruel or unusual punishment" (Cal. Const., Art. I, § 17).

We conclude the trial court, in dismissing a serious-violent felony conviction allegation (§§ 211, 667, subds. (b)-(i), 667.5, subd. (c)(9), 1192.7, subds. (c)(19) and (c)(23)), violated a prohibition against plea bargaining (§ 667, subd. (g)), exceeded its jurisdiction by granting a defendant's dismissal motion (§ 1385, subd. (a)), invalidly dismissed a prior felony conviction allegation without setting forth reasons in the minutes (§ 1385, subd. (a)), had no power to dismiss a section 667, subdivisions (b)-(i) prior felony allegation, and imposition of the prescribed punishment would not be cruel or unusual. Accordingly we reverse the judgment.

BACKGROUND

An August 22, 1994, information charged appellant possessed cocaine on July 20, 1994, (Health & Saf.Code, § 11350, subd. (a)) and alleged two robbery convictions as serious-violent felony priors (§§ 667, subds. (b)-(i)). It also alleged two state prison priors (§ 667.5, subd. (b)), robbery (the same robberies as alleged for purposes of §§ 667, subds. (b)-(i)) and forgery.

On August 22, 1994, appellant pleaded not guilty and denied the felony conviction allegations.

Appellant filed a demurrer, two motions to dismiss the "three strike" priors, and a motion to suppress evidence (§ 1538.5). The district attorney filed opposition papers and a request the trial court judicially notice its court records concerning the alleged robbery and forgery convictions.

Pretrial conferences were continued on September 20, September 22, September 29, and October 12.

On October 17, 1994, the trial court, "in furtherance of justice" (§ 1385, subd. (a)) dismissed one serious-violent felony conviction allegation (§§ 667, subds. (b)-(i)). Appellant then pleaded guilty and admitted the other serious-violent felony conviction allegation (§§ 667, subds. (b)-(i)) and the two state prison prior conviction allegations (§ 667.5, subd. (b)). Appellant waived time for sentencing and the trial court sentenced him "to 32 months in the state prison, low term doubled."

This People's appeal (§ 1238, subd. (a)(10)) followed.

DISCUSSION

1. Prohibition against plea bargaining (§ 667, subd. (g)).

Section 667, subdivision (g) provides: "Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (2) of subdivision (f)."

Section 1192.7 defines "plea bargaining" as "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." (§ 1192.7, subd. (b); italics added.)

The People contend the trial court violated this prohibition against plea bargaining. We agree.

On October 17, 1994, the trial court had an in-chambers, unreported disposition discussion with counsel. The only record of this discussion is a reference by the trial court made later that morning in open court. The trial court stated, "I had sort of indicated, and I don't know if it's on the record, but let's clarify at this time, that if the defendant pleaded to the low term doubled, 32 months total, that I would strike the prior."

Such discussions, in "serious felony" and other specified cases, were prohibited by Initiative approved June 8, 1992. (§ 1192.7.) By then, for ordinary people, "plea bargaining" was a dirty word. Although appellate courts had approved plea bargaining (People v. West (1970) 3 Cal.3d 595, 604-605, 91 Cal.Rptr. 385, 477 P.2d 409), the people had condemned it. While appellate courts viewed plea bargaining as "indispensable to the efficient administration of criminal justice" (ibid.) the people viewed plea bargaining as incompatible with "justice."

In 1979, a prosecutor described the ordinary person's image of plea bargaining this way: " 'Step right up folks. Come look at what we have for you. A little gift? A little deal? A small discount? Why, no sireeee. We have an honest to goodness, absolutely, guaranteed, today only, weekday special: PLEA BARGAIN.' " 'You heard me right. Yes, you did. A plea bargain. An absolutely irresistible, once-in-a-lifetime plea bargain. I mean a pleeea bargain! A money back, can't lose, judge sanctioned--STEP RIGHT UP AND HEAR THIS NOW--P-L-E-A B-A-R-G-A-I-N.'

" ' "Can I afford it?" [t]he little lady asks. Why, my Dear Little Lady, you can't not afford it. Now, hear this. That's it, move in closer. What we're offering right now, right here, to just you special folks is a plea bargain. A no-money down, any trade-in allowed, credit for time served, work furlough recommended, concurrent, weekends only, probation guaranteed, out-patient counseling, conjugal visitation rights, nolo contendere PLEA BARGAIN.' " (Bradbury, "Plea Bargaining: The Carnival Comes to the Courthouse," 4 Prosecutor's Brief, Number 5, p. 5 (Mar.-Apr. 1979).)

In 1994, to avoid such merchandising of justice in cases involving serious-violent felony priors, the legislature enacted section 667, subdivision (g). We find that by its inchambers, unreported sentence commitment, the trial court engaged in plea bargaining and violated this provision. ²

2. A dismissal "upon the application of the" defendant (§ 1385, subd. (a)).

The October 17, 1994, proceeding was in the words of the trial court, for "determination of ... motions made by the defense, including ... motion to strike the prior...." In dismissing one of the alleged serious-violent priors (§ 667, subds. (b)-(i)) "in furtherance of justice" (§ 1385, subd. (a)), the trial court was ruling upon "a formal motion by the defense" (People v. Smith (1975) 53 Cal.App.3d 655, 657, 126 Cal.Rptr. 195). The minute order so reflects: "The Court strikes the first prior alleged in the information pursuant to defense motion." (Italics added.)

The People contend that section 1385 ³ authorizes a dismissal only "upon the application of the prosecuting attorney" or on the trial court's "own motion" but not on motion of the defendant. The People are correct.

The cases make clear that if a dismissal is pursuant to a defendant's motion it is not "in furtherance of justice" and is not authorized by section 1385. (People v. Smith, supra, 53 Cal.App.3d 655, 657-658, 126 Cal.Rptr. 195 ["Here, the entire transaction was initiated by respondent's motion to the court to withdraw his not guilty plea and to plead guilty to a lesser related offense; while a defendant can informally suggest that a court consider a dismissal of charges against him, section 1385 does not provide a formal motion by the defense to accomplish the same result. Therefore, the court's action cannot properly be characterized as a dismissal of charges 'in furtherance of justice' as authorized by Penal Code section 1385."]; People v. Andrade (1978) 86 Cal.App.3d 963, 973, 150 Cal.Rptr. 662 ["The motion which was made and granted was that of defendant not that of the trial court. The statute makes no provisions for a defendant to move for dismissal. Although without statutory provision, the trial court expressly accepted, considered, and granted defendant's motion to dismiss. To recognize such motion and order would judicially enlarge the scope of Penal Code section 1385 if the dismissal were intended in furtherance of justice. The Legislature limited the right to initiate the use of the authority of section 1385 to the People and to the court. Granting a defendant's motion cannot be properly characterized as a dismissal of charges in furtherance of justice as authorized by Penal Code section 1385."]; People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136-137, 262 Cal.Rptr. 576 ["A criminal prosecution may be dismissed in superior court and the defendant may be discharged on several statutory grounds, including those set forth in section 1385. However, that section does not authorize the defendant to make a motion to dismiss in furtherance of justice. To recognize such motion and order would judicially enlarge the scope of section 1385 if the dismissal were intended in furtherance of justice. The Legislature limited the right to initiate the use of section 1385 to the People and to the...