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Hartman v. Superior Court of Kern County8/18/1982
--REF-->23 Cal. 3d 274 [152 Cal. Rptr. 528, 590 P.2d 383, 100 A.L.R.3d 823], and Esteybar v. Municipal Court (1971) 5 Cal. 3d 119 [95 Cal. Rptr. 524, 485 P.2d 1140].
Lewallen holds that the fact of conviction upon a plea of not guilty is "completely irrelevant at sentencing; if a judge bases a sentence, or any aspect thereof, on the fact that such a plea is entered, error has been committed and the sentence cannot stand." (23 Cal. 3d at p. 279.)
Esteybar v. Municipal Court, supra, 5 Cal. 3d 119, 125 states, "In determining whether a defendant should be held to answer on a felony or a misdemeanor, a committing magistrate exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him."
In this case, the magistrate did not expressly condition the exercise of his discretion upon petitioner's willingness to plead guilty to a misdemeanor; however, the magistrate inferably considered petitioner's willingness to plead guilty in exercising his discretion to reduce the charge.
The circumstances of the case within the meaning of Esteybar do not include petitioner's intent to exercise his constitutional right to stand trial upon the misdemeanor if Penal Code section 17 relief is granted. Such an intent is as irrelevant to the charge reduction issue before the magistrate in this case as a not guilty plea to sentencing after conviction. (See In re Lewallen, supra, 23 Cal. 3d 274, 279.)
Furthermore, the magistrate's inquiry as to petitioner's intent to plead guilty gives rise to one or more of the following appearances of impropriety: (1) judicial discretion was being exercised to encourage and/or coerce a guilty plea; (2) petitioner was penalized by an adverse ruling upon his motion to reduce the charge for exercising his constitutional
right to thereafter stand trial; and (3) the municipal court's future trial calendar was a factor in the exercise of judicial discretion.
Therefore, we hold that the magistrate's inquiry regarding petitioner's intent to plead guilty was error.
Respondent court erred in denying petitioner's motion to set aside the information. (Jackson v. Superior Court, supra, 110 Cal. App. 3d 174, 177-178.)
Let a peremptory writ of mandate issue directing the Kern County Superior Court to vacate its order denying the defendant's motion to set aside information No. 22885 and to enter a new order granting said motion.
Disposition
Let a peremptory writ of mandate issue directing the Kern County Superior Court to vacate its order denying the defendant's motion to set aside information No. 22885 and to enter a new order granting said motion.
Judges Footnotes
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