People v. Gutierrez

Opinion

LORD, J.

*

September 28, 1979, a complaint was filed in the Municipal Court, San Diego County, South Bay Judicial District, charging Arturo Gutierrez with 18 counts of burglary (Pen. Code, § 459) between March 1977 and August 1979. In each count it was alleged that the burglary was committed upon an inhabited dwelling in the nighttime.

On that same date, Gutierrez pleaded guilty to six of the counts. The remaining 12 were dismissed as a part of a plea bargain. On October 25, 1979, the superior court sentenced Gutierrez to prison for ten years as follows: Count 9, the upper term of six years; count 4, four years

[232]

concurrent with count 9, and counts 11, 13, 15 and 16, one year each consecutive to count 9. Gutierrez was given credit for 49 days in custody.

The burglaries to which the plea of guilty was entered took place between October 1978 and July 1979 and were not related offenses. Gutierrez’ sole contention on appeal is that in sentencing him the trial court erroneously considered the charges which had been dismissed as a result of the plea bargain and that this court should reduce the sentence for count 9 to the middle term of four years without remand for sentencing.

Gutierrez relies upon

People

v.

Harvey

(1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396], which held that it was improper for the sentencing court to consider any of the facts underlying charges dismissed upon a plea bargain. The court stated (at p. 758): “Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." The court pointed out that an earlier decision of this district

(People

v.