Opinion
WOOLPERT, J. Appellant was convicted of being an ex-felon in possession of a handgun in violation of Penal Code section 12021. He complains that he was forced to undergo jury trial and imprisonment because of an arbitrary local court rule. Several days prior to trial he accepted the district attorney’s offer of a county jail commitment. However, the court refused to consider the plea bargain because it was untimely. We are asked to hold that plea bargains must be considered by the court at any time.
On the night of February 6, 1981, two police officers were on patrol in a marked police vehicle when they saw a car parked on the wrong side of the street. The driver was talking to a woman standing nearby. As the police car came closer, the parked vehicle pulled out and sped away. Both vehicles came to a stop soon after the overhead lights on the patrol car were activated.
Appellant got out of the car in response to a request for identification. One officer noticed an open beer can on the transmission hump. While leaning in to check the can, he saw a handgun on the floorboard below the left front seat. One bullet was observed in the chamber of the gun and one in the magazine. Appellant was arrested.
[581]In his defense, appellant testified that while visiting his aunt, he lent his car to her housekeeper, who, unbeknown to appellant, carried a gun for her own protection. She left the gun on the floorboard of the car before entering a store and forgot to remove it when she returned. Appellant testified he was unaware of the presence of the gun at the time of his apprehension. The housekeeper confirmed these circumstances. However, the jury thought otherwise and found him guilty. He was then sentenced to prison for the upper base term of three years.
In passing sentence, the court noted appellant’s history of robberies involving the use of firearms, a prior prison term not charged as an enhancement, two “ninety-mile-an-hour chases, and repeated use of guns . . . [and] threatening] the innocent victim with a butcher knife in his home while perpetrating a burglary.” Outside the presence of the jurors, appellant had admitted the charged prior armed robbery conviction.
The “Fresno Rule”
Injudicial circles it is well known that in certain counties the presiding judge does riot permit last moment plea bargaining. In other counties such a rule does not exist, or it exists more in theory than in reality, the judges finding it expedient to take pleas at any time. The record indicates that in the Fresno County Superior Court, ultimate management of the criminal calendar is in the hands of the presiding judge, who, by agreement of the judges of the court, requires a readiness conference to be held a week or so prior to trial. It is held to assure that the parties are ready for trial and to advise them that no plea bargain will be considered after that time.
Generally, such deadlines are supported as a means of reducing the confusion, hardship and inconvenience inherent in calling calendars. The priority of the criminal calendar and the frequency of pleas in lieu of trials often place civil litigants in a trailing position, which on trial day is at best an uncertain one. When pleas are taken at this time, the practice may well have a domino effect on other cases. It may leave courtrooms vacant if the calendar judge has failed to overschedule trials. Excusing unused jurors or, when expected pleas do not materialize, announcing there are insufficient judges or courtrooms for the balance of the calendar, is an unpleasant judicial task.
In this case, appellant and counsel appeared at the readiness conference. They were ready for trial; no plea was offered. They were well aware that henceforth any plea would have to be, as defense counsel stated, “straight up to the charges as alleged without any conditions.”
[582]The problems before us arose because after the readiness conference, the district attorney was advised that the gun found in the car and removed for evidence purposes had been destroyed. He proposed a plea bargain which called for no more than a local time commitment. Before defense counsel accepted the offer, the district attorney learned that the gun had not been destroyed. He did not try to revoke the offer. The expected acceptance came soon thereafter. Feeling himself morally bound by the agreement, the district attorney joined with defense counsel in seeking its presentation to a willing judge.
Two judges were approached and each refused to consider the plea. No record was kept when the presiding judge discussed and refused the plea. It is unclear whether he rejected it solely because of its untimeliness or also because he was told the gun had been located and the conditions for the offer had changed. We accept counsel’s representation that the Fresno time rule was the reason.
As trial commenced, the plea issue was discussed again. The trial judge was not willing to countermand the presiding judge’s decision. Appellant argued that he had a constitutional right to have a judge consider the plea bargain without any time restriction. His authority was simply “due process.” He now urges that the Fresno rule prevents the exercise of discretion, is a form of coercion, and does not “necessarily . . . increase the efficiency of the criminal process.”
The Standards of Judicial Administration adopted by the Judicial Council, effective January 1, 1972, authorized this practice. Section 10(a)(7) provides in part: “Finally, the court should adopt a rule or policy providing that the readiness conference is the last possible point of negotiation and that thereafter a defendant may plead only to the principal charge against him.”
The Judicial Council is authorized to “adopt rules for court administration, practice and procedure, not inconsistent with statute. ...” (Cal. Const., art. VI, § 6.) Local court rules may be adopted if “not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.” (Gov. Code, § 68070.) We find no inconsistent constitutional or statutory law or rule which would nullify the standard and local rule to which appellant objects.
The defendant in North Carolina v. Alford (1970) 400 U.S. 25, 38-39 [27 L.Ed.2d 162, 171-172, 91 S.Ct. 160], accepted a plea offer in order to avoid the death penalty. On appeal, he urged the plea agreement should not have been offered him and that instead, full proof of the crime should have been required by the trial process. In response, the Supreme Court held: “The States in their wisdom may take this course by statute or otherwise and may prohibit the prac[583]tice of accepting pleas to lesser included offenses under any circumstances. ” (Id., at p. 39 [27 L.Ed.2d at p. 172], italics added.) On the subject of unconditional guilty pleas, the court also noted that a criminal defendant “does not have an absolute right under the Constitution to have his guilty plea accepted by the court [citations], although the States may by statute or otherwise confer such a right. ” (Id., fn. 11.) The Fresno rule sets no time limit on taking unconditional pleas.
The California rules on plea bargaining have a parallel in the federal rules. Rule 11(e) of the Federal Rules of Criminal Procedure (18 U.S.C.), adopted by Congress in 1975, and amended in 1979, outlines the proper procedure to be followed in taking a “plea agreement.”1 When the rule was proposed, federal judges expressed concern that its language mandated the court to consider all offers. To lay this fear to rest, the House Judiciary Committee Report stressed that the rule “. . . permits each federal court tp decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdiction. No court is compelled to permit any plea negotiations at all.” (United States v. Stamey (4th Cir. 1978) 569 F.2d 805, 806.)
The refusal of a judge to consider a plea bargain one day after the expiration of the deadline fixed by the court for plea negotiations was upheld in United States v. Ellis (5th Cir. 1977) 547 F.2d 863, 868. The prosecutorial prerogative and the rights of the defendant under rule 11(e) were considered. Approval was given to the trial court view that “strict adherence to [the court’s] deadline order was necessary for proper scheduling of cases and to save time, difficulty and expense to jurors and witnesses who would otherwise have to be summoned needlessly to attend court sessions.” It was also noted that one exception would lead to another, “with the result that the deadline would become meaningless. ” (Ibid.)
[584]Section 1192.5 of the Penal Code was enacted in 1970.2 As subsequently amended, it sets forth “guidelines which the trial court can utilize in receiving and considering plea bargains involving pleas to lesser offenses.” (People v. West (1970) 3 Cal.3d 595, 608 [91 Cal.Rptr. 385, 477 P.2d 409].) However, as in the case of the federal rule, there is no reference to the court’s discretion to refuse to consider such a plea at all, or within certain time limits. Federal courts have rejected the suggestion that similar language compels the courts to hear and consider all plea bargains. (United States v. Moore (8th Cir. 1981) 637 F.2d 1194, 1196.)
California decisions emphasize that successful judicial administration depends upon a positive attitude toward plea bargaining. After the enactment of Penal Code section 1192.5, it was held to be an abuse of discretion and a violation of the spirit of the section to refuse to hear an offered plea bargain on the following basis stated by the trial judge: “ ‘[L]ooks to me like the possibility that the people who have violated the law are dictating the disposition of their case rather than the Judge. . . .’” (People v. Smith (1971) 22 Cal.App.3d 25, 29 [99 Cal.Rptr. 171].)
Prosecutors have drawn their share of adverse comment: “On the other hand, sentencing discretion wisely and properly exercised should not capitulate to rigid prosecutorial policies manifesting an obstructionist position toward all plea bargaining irrespective of the circumstances of the individual case. As the calendars of trial courts become increasingly congested, the automatic refusal [585]of prosecutors to consider plea bargaining as a viable alternative to a lengthy trial may militate against the efficient administration of justice, impose unnecessary costs upon taxpayers, and subject defendants to the harassment and trauma of avoidable trials. (People v. Williams, supra, 269 Cal.App.2d 879, 884.) A court may alleviate this burden placed upon our criminal justice system if this can be accomplished by means of a permissible exercise of judicial sentencing discretion in an appropriate case.” (People v. Orin (1975) 13 Cal.3d 937, 949 [120 Cal.Rptr. 65, 533 P.2d 193].)
In People v. Hill (1974) 12 Cal.3d 731, 768 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on another point in People v. DeVaughn (1977) 18 Cal.3d 889 [135 Cal.Rptr. 786, 558 P.2d 872], the defendant’s role in plea bargaining was examined, with this conclusion: “Consequently, only the most compelling reasons can justify any interference, however slight, with an accused’s prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty.” (Original italics.) The reference was to plea bargaining as such and not to the timing of the plea.
It appears that the competing interests of accurately scheduling court calendars and judiciously taking pleas to avoid trial can be accommodated while reasonably restricting pleas to certain time periods. The purpose of improving calendar management justifies the setting of deadlines beyond which no conditional plea may be taken. However, contrary to the federal rule apparently permitting an anticonditional plea policy irrespective of time, we hold that section 10(a)(7) of the Standards of Judicial Administration limits the preclusion period to that reasonable time which follows the readiness conference and ends upon the completion of trial. The justification for the rule is as applicable after commencement of trial as just before trial.3
In response to appellant’s argument that the basis for the plea bargain arose after the readiness conference, we hold that the standard does not preclude the exercise of discretion at any time under exceptional circumstances. In this case, the judges concerned had that authority and were properly consulted. Although we have no record of the exact conversation, we have been shown no abuse of discretion. By the time the offer was presented to the court, the gun had been found. Despite the fact that the district attorney considered himself to be “morally bound,” the error did not justify an exception to the rule against late conditional pleas. Since the gun had been found, the situation was the same as it had been at the time of the readiness conference when both parties had chosen to go to trial.
[586]Appellant’s criminal background was such that the presiding judge, if made aware of it, would have considered the probability of the sentencing judge rejecting the plea to be too great to justify taking the plea and unsetting the trial. “[I]mplicit in the language of section 1192.5 is the premise that the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea.” (People v. Johnson (1974) 10 Cal.3d 868, 873 [112 Cal.Rptr. 556, 519 P.2d 604].) Therefore, whether the plea was rejected for reasons of timeliness alone, or upon consideration of the availability of the gun or of the defendant’s criminal history, the court acted within its proper discretion.4
Although not argued by the parties, an equal protection of the law theory is urged by the dissent. It is a good point to discuss and deserves a response. We agree that there are variations from county to county regarding taking late plea bargains.
Plea bargaining, which may in cases such as this be more properly termed “sentence bargaining,” has been given judicial sanction only recently. (People v. West, supra, 3 Cal.3d 595, 605.) It has no constitutional origin and little statutory recognition. Any attempt to find equality in its practice is doomed to failure. On the federal level the lack of uniformity is understandable in light of repeated statements such as: “The States and the Federal Government are free to abolish guilty pleas and plea bargaining; but absent such action, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas.” (Corbitt v. New Jersey (1978) 439 U.S. 212, 223 [58 L.Ed.2d 466, 477, 99 S.Ct. 492].) Generally, unless there is an overriding national interest, equal protection is implied in the Fifth Amendment due process clause. (Hampton v. Mow Sun Wong (1976) 426 U.S. 88, 100 [48 L.Ed.2d 495, 506, 96 S.Ct. 1895].)
We can compare variations between counties in California to permitted variations within the same federal court. For example: “In our opinion each in-, dividual judge is free to decide whether, and to what degree, he will entertain plea bargains, and his refusal to consider any plea bargaining whatsoever will not vitiate a guilty plea which has otherwise been knowingly and voluntarily entered.” (United States v. Jackson (4th Cir. 1977) 563 F.2d 1145, 1148.)
In California, plea bargaining is controlled as to “how” (§ 1192.5), and “when” (the suggestion in the standard and the various requirements of local rules). The “if” cannot be legislated with any certainty because of prosecutorial discretion in selecting the original charges and the limitations obvious in “bargaining” without the prosecutor’s express approval. (People v. Orin, [587]supra, 13 Cal.3d 937, 942-949.) Even between codefendants the law has not contemplated equality in plea bargaining. A grant of immunity, or a less formal plea agreement, which is arranged to obtain the testimony of one defendant against the other, may greatly distort the end result so that one defendant may be jailed and the other imprisoned. Plea bargains, having such uncertain conceptions, are subject to reasonable time constraints on their delivery to the court.
Other Issues
We do not find appellant’s other claims of error to be of substance. Over his objection, appellant’s 1977 robbery conviction was admitted into evidence before the jury. It was properly received for impeachment purposes, with the court’s limitation that the jury was not informed that the robbery was an armed one. The court also excluded mention of a 1973 robbery. Though robbery may have less correlation to honesty and veracity than crimes such as perjury and embezzlement, and though it is of the disfavored assaultive kind, under these circumstances there was no error. (People v. Bailes (1982) 129 Cal.App.3d 265, 274 [180 Cal.Rptr. 792].) His stipulation to ex-felon status did not shield appellant from impeachment when he testified. (People v. Faught (1981) 124 Cal.App.3d 848, 857 [177 Cal.Rptr. 637].)
There was a question whether appellant saw the officers approaching the vehicle prior to the time he rapidly drove away. He complains that the trial court erred in giving the standard instruction on flight.5 The instruction was given under proper circumstances. It assumes nothing; it merely instructs the jury that if there was flight, there may be an inference of a consciousness of guilt. (People v. Cannady (1972) 8 Cal.3d 379, 391-392 [105 Cal.Rptr. 129, 503 P.2d 585]; People v. Campos (1982) 131 Cal.App.3d 894, 900 [182 Cal.Rptr. 698].)
Finally, appellant contends that the imposition of the upper base term was improper. As noted by the trial court, appellant was on parole at the time of the offense. His prior record has been mentioned earlier in this opinion. He was properly sentenced.
The judgment is affirmed.
Stanton, J.,* concurred.
Rule 11 prescribes the plea alternatives, advice to be given by the court, the duty of the court to ensure that the plea is voluntary, and then the plea agreement procedure and need for a proper factual basis determination and record of the proceedings. We quote only subparagraphs (2) and (5) of rule 11(e): “(2) Notice of Such Agreement. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. If the agreement [moves for dismissal of other charges or agrees on a specific sentence], the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement [recommends a particular sentence or agrees not to oppose the defendant’s request for a particular sentence], the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw his plea.
“(5) Time of Plea Agreement Procedure. Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.”
That section reads: “Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, other than a violation of subdivision (2) or (3) of Section 261, or Section 264.1, Section 286 by force, violence, duress, menace or threat of great bodily harm, subdivision (b) of Section 288, Section 288a by force, violence, duress, menace or threat of great bodily harm, or Section 289, the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it.
“Where such plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on such plea to a punishment more severe that that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.
“If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for such plea.
“If such plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available.
“If such plea is withdrawn or deemed withdrawn, it may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.” (As amended in 1974 and 1979.)
We are not here concerned with the jurisdiction of the trial judge or the effect of a trial judge’s disregard of such a rule.
Plea bargaining is prohibited or limited in certain circumstances by constitutional and statutory law. We are here concerned only with the timely offer of plea bargains when otherwise permitted by law.
“The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.” (CALJIC No. 2.52.)
Assigned by the Chairperson of the Judicial Council.