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People v. Thomas6/8/1994
YEGAN, J.:
Frank Cornelius Thomas was convicted of felony driving under the influence of alcohol with three prior offenses (Veh. Code, §§ 23152a, 23175) and driving with knowledge that his license was suspended or revoked (Veh. Cod, § 14601.2, subd. (a)). He also admitted having served two prior prison terms within the meaning of Penal Code section 667.5 subdivision (b)). He was sentenced to state prison for an aggregate unstayed term of four years; the middle two year term on the substantive offense and one year each for the prior prison terms. Prior thereto, his plea of "once in jeopardy" was rejected. He appeals contending, inter alia, that ". . . filing the felony complaint after appellant already pleaded guilty to the misdemeanor charges violated the constitutional prohibition against double jeopardy . . . a trial court lacks authority to withdraw an accepted guilty plea on its own motion." These contentions are without merit and we affirm the judgment.
Appellant was originally charged in a misdemeanor complaint, number 92S004781, in the Ventura County Municipal Court, with driving under the influence on August 7, 1992, with two prior driving under the influence convictions. He was also charged with driving with a blood alcohol level of .08. At arraignment, appellant and the district attorney entered into a negotiated Disposition. Appellant agreed to plead guilty to driving with a blood alcohol level of .08 or greater and admit the two priors with the remaining count to be dismissed. Appellant executed a written Tahl waiver. (In re Tahl (1969) 1 Cal. 3d 122, 81 Cal. Rptr. 577, 460 P.2d 449.) The trial court accepted the plea and the admissions, dismissed the remaining count, and immediately started to impose sentence.
As the trial court was explaining the terms and conditions of formal probation, it warned appellant that ". . . should you be arrested again for this charge, it may be charged against you as a felony in the Superior Court. Instead of talking about how many days of jail, they'll be talking about how many years in prison."
As the trial court told appellant that his driving privilege was revoked, it paused and then said: "The court, rather than continue with the proposed grant of probation, is going to vacate the order it started granting probation, and set aside the defendant's plea. In reviewing the teletype as the court is required to do, I find that this is the defendant's fourth conviction, a DUI in '87, a broken DUI alcohol related reckless in '89, a 1990 conviction, I cannot in good faith go forward on the negotiated Disposition that was based on a false premise. The plea is set aside, the order initiated [sic, initially] granting probation is vacated, counsel may proceed to discuss the matter based on the present complaint. Or the district attorney may not wish to proceed on the present complaint. But everything I have done so far, save the appointment of the public defender is vacated. If counsel are of a mind to proceed on the complaint and wish me to go forward today with a different negotiated Disposition I'll be happy to discuss that."
The district attorney elected to dismiss the misdemeanor complaint after filing a felony complaint, ultimately numbered CR30195. Appellant entered pleas of not guilty and "once in jeopardy."
On the latter plea, the superior court expressly ruled: "It's pretty fundamental that a Judge has to approve a plea in a plea bargain. So we've got a plea bargain situation here where the Judge originally said 'I accept your plea,' but then the
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