P. v. Wise

Filed 8/6/09 P. v. Wise CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.

Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Jeffrey Wise, pled guilty to assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)).^[1] On August 28, 2008, the court suspended imposition of sentence and placed Wise on probation for three years on condition he serve one year in local custody.

On appeal, Wise contends this court should clarify that the offense he pled to is not a serious felony. We will strike Wises admission that his assault offense is a serious felony. In all other respects, we will affirm.

FACTS

On May 22, 2008, Wise confronted his neighbor, Doreen Berzins, accusing her children of killing one of his dogs by running over it with an ATV. Wise threatened to blow up Berzinss house.

Berzins drove to a sheriffs substation that was closed. As she drove from the substation, she encountered Wise driving his truck toward her at a high rate of speed. Berzins had to swerve in order to avoid hitting Wises truck.

On May 27, 2008, the district attorney filed a complaint charging Wise with assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 1) and driving while his driving privilege was suspended (count 2/Veh. Code, 14601.1, subd. (a)). The complaint also alleged that Wises assault was a serious felony within the meaning of section 1192.7, subdivision (c).

On July 16, 2008, the prosecutor amended count 1 to allege that Wise assaulted Berzins by means of force likely to produce great bodily injury. Wise then pled guilty to the amended count in exchange for a grant of probation with a maximum local term of confinement of one year and the dismissal of the remaining count.

During the change of plea proceedings the following colloquy occurred:

[THE PROSECUTOR]: . . . Sir, in [c]ase [n]umber MF008314A, it is alleged in Count I that on or about May 22, 2008, that you did willfully and unlawfully commit an assault upon Doreen Berzins, B-e-r-z-i-n-s, by force likely to produce great bodily injury, in violation of Penal Code [s]ection 245, subsection (a), subsection (1), a felony.

Its further alleged that this offense is a serious felony within Penal Code [s]ection 1192.7, subsection (c):

To that charge, sir, how do you plead?

[APPELLANT] : Guilty with an explanation.

DISCUSSION

Wise contends he pled guilty to assault in count 1 with the explicit agreement that the court would strike the language in that count that made his assault offense a serious felony. He further contends that the court violated the terms of his plea bargain when it allowed him to admit the language in count 1 that made his assault offense in that count a serious felony. We will reject this contention.

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. [Citations.] 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. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the Peoples acceptance of a plea to a lesser offense than that charged, either in degree [citations] or kind [citation] 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. [Citations.] 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. [Citation.] (People v. Orin (1975) 13 Cal.3d 937, 942-943.)

Wise misrepresents the record when he asserts that his plea bargain explicitly provided that the court would strike language in count 1 that made his assault offense a serious felony. All the record discloses is that as part of Wises plea agreement, the prosecutor agreed to amend count 1 to delete language that he assaulted the victim with a deadly weapon and replace it with language that Wise assaulted the victim by means of force likely to produce great bodily injury and that the Vehicle Code count would be dismissed. Further, in announcing the terms of the plea bargain, the prosecutor did not mention striking the language that the assault offense was a serious felony within the meaning of section 1192.7. Accordingly, we reject Wises contention that the court violated the terms of his plea bargain.

Nevertheless, we will strike Wises admission that his assault offense is a serious felony within the meaning of section 1192.7, subdivision (c) because it is a legal conclusion which must be stricken as premature. (People v. Sanchez (1991) 230 Cal.App.3d 768, 772.) Additionally, we agree with respondent that the section 245 offense pled to was no longer a serious felony as amended.

DISPOSITION

The judgment is modified to strike Wises admission that his present assault offense is a serious felony within the meaning of section 1192.7, subdivision (c). In all other respects the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Dawson, J., and Kane, J.

^[1] All further statutory references are to the Penal Code, unless otherwise indicated.