People v. Orin

• Decision Date: 04 April 1975
• Docket Number: Cr. 17731
• Citation: 533 P.2d 193,13 Cal.3d 937,120 Cal.Rptr. 65
• Court: California Supreme Court
• Parties: , 533 P.2d 193 The PEOPLE, Plaintiff and Appellant, v. Ervin L. D. ORIN, Defendant and Respondent.

Page 65

120 Cal.Rptr. 65

13 Cal.3d 937, 533 P.2d 193

The PEOPLE, Plaintiff and Appellant, v. Ervin L. D. ORIN, Defendant and Respondent.

Cr. 17731.

Supreme Court of California,

In Bank.

April 4, 1975.

Rehearing Denied May 1, 1975.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender, Harold E. Shabo, Gerald S. Peterson and Michael Rothschild, Deputy Public Defenders, for defendant and respondent.

SULLIVAN, Justice.

The People appeal from an order dismissing two counts of a three-count information (Pen.Code, § 1238, subd. (a)(8)), ¹ the court having entered judgment of conviction on defendant's plea of guilty to the remaining count and sentenced defendant to state prison for the term prescribed by law.

Defendant was charged by information with three counts all arising out of the same incident: in count I with attempted robbery (§§ 211, 664); in count II with burglary (§ 459); and in count III with assault with a deadly weapon (§ 245, subd. (a)).

With respect to counts I and II, it was alleged that at the time of the commission of said offenses defendant was armed with a deadly weapon within the meaning of sections 3024 and 12022, that he used a firearm within the meaning of section 12022.5, and that he intentionally inflicted great bodily injury upon the person of Violet V. Myers. ²

Defendant was arraigned and entered a plea of not guilty to each count. Thereafter on defendant's motion and pursuant to Evidence Code sections 730 and 1017, the court appointed two doctors to examine defendant, to perform specified tests upon him and to prepare a confidential report for defendant.

When the case was called for trial, the following occurred. The prosecutor immediately addressed the court, stating that the People were ready to proceed to trial on all counts and that any plea to count III was unacceptable. ³ Shortly thereafter defendant's counsel informed the court that defendant was willing to withdraw his plea of not guilty to the charge of assault with a deadly weapon and to enter a plea of guilty to that count (count III). The court replied that it was 'willing to accept that plea at this time as to Count III and put the matter of the disposition of the remaining counts over to the time of probation and sentence proceedings. This would be in the nature of a plea bargain in which the People do not wish to enter, as stated by (the prosecutor) and with the further understanding that if the Court feels that it cannot at that time accept it, that the Court would allow you to set the plea aside and go to trial. . . . The Court feels that we can proceed on that basis. The Court, on it's (sic) own motion, will dismiss the remaining counts against you.' Defendant responded that he understood. Continuing, the court warned defendant that if this disposition of the case proved acceptable, it was likely that defendant would be sentenced to state prison for the term prescribed by law on count III. The prosecutor again objected to the proposed arrangement and indicated the People's readiness to proceed to trial on all three counts.

Defendant made appropriate Tahl waivers (see In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449), ⁴ and entered a plea of guilty to count III. Over further objection by the People to the court's contemplated dismissal of the charges of attempted robbery and burglary, the court continued the case to the date set for the probation and sentence hearing with respect to count III and for the disposition of counts I and II.

At the probation and sentence hearing, the People moved that the guilty plea be withdrawn and that they be given the right to go to trial on all three counts. The court denied the motion, stating: 'Well, the Court, especially after getting the probation report and it seems like there was some psychiatrist report in connection with that, . . . which would indicate there would be probably a serious problem concerning the specific intent required as to the 211 robbery because of the excessive use of alcohol, and the factual situation in connection with it, still feels this would be the proper plea and so finds . . ..'

The court thereupon denied probation as well as defendant's alternative request for commitment for diagnosis and treatment (see § 1203.03), sentenced defendant on count III to state prison for the term prescribed by law, and dismissed counts I and II in the interests of justice. These proceedings are reflected in a printed form denominated 'Judgment' (as distinguished from 'Minute Order'); at the bottom of the form a box is checked, indicating 'Remaining counts dismissed in interests of justice.' We set forth in the margin the pertinent part of the record. ⁵ This appeal followed.

It is clear and indeed the parties agree that the court's action in dismissing the two counts was purportedly taken pursuant to section 1385. ⁶ The People contend, however, that such dismissal constituted an abuse of discretion. They argue that since it was ordered, over their objection, solely because defendant had pleaded guilty to the third count, the dismissal was not 'in furtherance of justice' (see § 1385, and fn. 6, Ante), and therefore beyond the power vested in the court by the above statute. ⁷

Before we proceed to the merits of the People's argument we dispose of two preliminary matters. First, we observe that notwithstanding the court's characterization of the disposition of the cause below as being 'in the nature of a plea bargain,' there was in fact no plea bargain and we are not here presented with any issue of the existence, validity or effect of any plea bargain.

The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604--608, 91 Cal.Rptr. 385, 477 P.2d 409.) Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. (People v. West, Supra, 3 Cal.3d at p. 604, 91 Cal.Rptr. 385, 477 P.2d 409.) This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People's acceptance of a plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or kind (People v. West, Supra, 3 Cal.3d at p. 608, 91 Cal.Rptr., 385, 477 P.2d 409), or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the 'bargain' worked out by the defense and prosecution. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West, Supra, 3 Cal.3d at pp. 607--608, 91 Cal.Rptr. 385, 477 P.2d 409.) But implicit in all of this is a process of 'bargaining' between the adverse parties to the case--the People represented by the prosecutor on one side, the defendant represented by his counsel on the other--which bargaining results in an agreement between them. (See People v. West Supra, 3 Cal.3d at pp. 604--605, 91 Cal.Rptr. 385, 477 P.2d 409.)

However, the court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of 'plea bargaining' to 'agree' to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor's consent to the proposed disposition, ⁸ would detract from the judge's ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be initimidated by the judge's participation in the matter. (People v. Williams (1969) 269 Cal.App.2d 879, 884, 75 Cal.Rptr. 348.) ⁹ In the instant case it is undisputed tht the prosecution did not agree to the arrangement by which the charges against defendant were disposed of; it is therefore clear that the matter under consideration herein does not involve a plea bargain.

Secondly, we note that the dismissal of counts I and II is manifestly invalid under section 1385 because of the court's failure to comply with the following provision of the statute: 'The Reasons of the dismissal must be set forth in an order entered upon the minutes.' (Italics added; see fn. 6 Ante.) It is settled law that this provision is mandatory and not merely directory. Recently in People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502--503, 72 Cal.Rptr. 330, 446 P.2d 138, while recognizing the broad right of a trial judge to dismiss in furtherance of justice, we adverted to the requirement that he 'must state his reasons in the minutes' and took pains to point out that '(i)f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385. (Citations.)' (Id. at p. 503, fn. 7, 72 Cal.Rptr. at p. 338, 446 P.2d at p. 146.)

Thus, it has been said: 'The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter's transcript may show the trial court's motivation; the Minutes must reflect the reason 'so that all may know why this great power was exercised. '' (People v. Beasley, Supra, 5 Cal.App.3d 617, 637, 85 Cal.Rptr. 501, 514.) The underlying purpose of this statutory requirement is 'to protect the public interest against improper or corrupt (fn. omitted) dismissals' and to impose a purposeful restraint upon the exercise of...