People v. King

[408]

Opinion

ELKINGTON, Acting P. J.

Pursuant to a

renegotiated

plea bargain, defendant King pleaded guilty to rape by force and violence in the commission of which he used a deadly weapon. (Pen. Code, §§ 261, subd. 2, 12022, subd. (b).) On his appeal from the judgment thereupon entered, he contends only that he was entitled to specific enforcement of an earlier, and to him a more favorable, plea bargain which the trial court had repudiated, as not in the public interest, when more fully advised at the time set for sentencing.

The trial court was, of course, permitted to reject the earlier tentatively accepted plea bargain, in its discretion, upon being more fully informed about the case. (Pen. Code, § 1192.5;

People

v.

Johnson

(1974) 10 Cal.3d 868, 873 [112 Cal.Rptr. 556, 519 P.2d 604].) King makes no contrary contention.

Instead, he points out that the trial court did

not,

as required by Penal Code section 1192.5 (3d par.), advise him at the time the earlier plea was conditionally accepted and entered, that it might “withdraw its approval in the light of further consideration of the matter, ...” He then states that as a result he “was under the impression that the bargain was an accomplished fact—and thereafter talked freely [and] revealed acts to the probation officer which would impair his ability to go to trial on the dismissed charges.” Therefore, he continues: “Because of the trial court’s failure to follow the rule of Penal Code § 1192.5 and appellant’s reliance thereon, the trial court was without power to set aside the plea bargain.”

It has been held that such candid revelations, as King here claims to have made to the probation officer, “are not admissible either for substantive evidence or for impeachment in any retrial on the same issues.”

(People

v.