(San Francisco City & County Super. Ct. No. 208858). Hon. Charles F. Haines.
The opinion of the court was delivered by: Marchiano, P.J.
CERTIFIED FOR PUBLICATION
Defendant Alejandro Alvarez reached an agreement with the prosecution for a disposition of the criminal charges against him. The judge in whose chambers the deal was struck approved the agreement but did not take defendant's plea. The judge transferred the case to a designated judge to approve and accept the plea pursuant to a local court procedure by which the presiding judge assigns two judges the responsibility for approving plea agreements reached after a case is set for trial. After reviewing the case, including the serious nature of two charged robberies, the second judge declined to approve the bargain. Defendant would not agree to the disposition the second judge was willing to accept. Defendant filed a petition for writ of mandate or prohibition disputing the process.
In his petition for writ of mandate or prohibition, defendant/petitioner contends that the court's judicial assignment procedure limiting the judges who are authorized to accept plea agreements is invalid because it was not promulgated as a local rule of court, or because it conflicts with other law. We disagree for the reasons explained below and deny the petition.
Defendant was charged by information with committing the following crimes on May 3, 2009: second degree robbery of Amanda Fisher (Pen. Code, § 211), while on bail (Pen. Code, § 12022.1); receiving stolen property of Amanda Fisher (Pen. Code, § 496, subd. (a)), while on bail; second degree robbery of Jupei Hsiao; and unlawful display of an imitation firearm (Pen. Code, § 12556).
The record does not include the preliminary hearing transcript, but some of the circumstances of the offenses are set forth in points and authorities filed in connection with defendant's motion to set aside the information (Pen. Code, § 995 (hereafter § 995)).
Ms. Hsiao was walking home around 3:30 p.m. when she was assaulted by defendant and a young Latino female. Hsiao looked over her shoulder and saw them running toward her. The female began hitting her and defendant joined in the attack. They stole the iPod Touch and house keys Hsiao had been holding in her hand.
Ms. Fisher was walking to a grocery store around 7:30 p.m. when defendant and a woman attacked her. Defendant threw his arm over Fisher's shoulder, forcing her to the ground. Defendant and the woman hit Fisher as she lay in a fetal position, clutching her purse. She gave them the purse to stop the beating.
On June 1, 2009, defendant was arraigned on the information, and trial was set for July 17, 2009. Defendant filed his section 995 motion on July 7, 2009, and moved on July 14, 2009 to continue the July 17 trial date, advising that his counsel would not be available on that date or on July 20, 2009, when the section 995 motion was set to be heard. The section 995 motion came on for hearing before Judge Kevin McCarthy (Department 24) on July 24, 2009. No pretrial conference had been held up to that point in the case, but it appears that one had been scheduled for August 20, 2009, in Department 23, one of the two departments of the Superior Court designated to handle plea negotiations.
According to defense counsel's declaration in support of the petition, Judge McCarthy "did not have the papers to conduct the [section 995] hearing, but... he offered to conduct a pretrial conference in the case anyway." In a discussion in chambers, the parties agreed upon a disposition in which defendant would plead to one count of grand theft (Pen. Code, § 487, subd. (c)), imposition of sentence would be suspended, and probation would be granted, with a search condition, a stay away order, restitution to the victims, and service of six months in county jail. The agreement between counsel occurred after negotiation involving other terms and conditions, including an eight-month jail term. Defense counsel declares that in chambers "Judge McCarthy gave his blessing indicating he would be willing to accept such a plea." However, when the parties returned to the courtroom for entry of the plea, "Judge McCarthy told us to `hold on' because he had to go to [Department 22] to get permission to take the plea." When Judge McCarthy returned, "he... said that he was not permitted to take the plea, but that the plea would go through as agreed upon. The only difference, he said, was that the plea would occur in Department 22 in front of Judge [Charles] Haines. [Judge Haines was in Department 22, which was also designated to handle plea settlement.]" In the reporter's transcript for the hearing, Judge McCarthy stated: "We are going to have to forthwith this matter to Department 22 where it will settle. [¶]... [¶] You'll get your deal."
Defense counsel further declares that when the parties appeared before Judge Haines they had a new pretrial conference at the judge's request, at which he informed them he would not accept the disposition unless it provided for eight months of jail time, rather than six. When they went on the record, defense counsel recounted what transpired before Judge McCarthy and noted that he was "a Superior Court Judge here in the City and County of San Francisco." Judge Haines responded: "Judge McCarthy is not authorized to hear the pretrial... so that judge doesn't have the authority to okay the deal. It has to come through me or through Judge Breall [Department 23 judge]. That's by order of the Presiding Judge who assigns the cases through me. [¶] Judge McCarthy came over to see-he was trying to settle it. And I said we have to send it back to me, and we would take care of it. He told me he thought it would settle. And I independently looked at it, and I told you I'm not going along with the deal.... [¶]... [¶] There's no authority, except here or Department 23, to take the deal. [¶] Judge McCarthy knew it. That's why he came to see me."
Later in the hearing, after defense counsel referred to Judge McCarthy as "a court of identical jurisdiction," counsel and Judge Haines had the following exchange: "The Court: [T]he law says the Presiding Judge has the authority to assign cases, and he assigns them here to Department 22 for certain purposes: to set trials, for... pretrials and motions generally. And I have been told by the Presiding Judge to keep the pretrials in Department 22 and Department 23, and I have been announcing that. [¶] [Defense Counsel]: Your Honor, we were in Department 24 for a 995. Sounds like the Presiding Judge is saying no other judge can reach a disposition in a case. [¶] The Court: Yes, that's exactly what he is saying. No more forum shopping- not that people are accused of doing that. But things will be pretried and pretried in the settlement department, and that's this department and Department 23. But that's exactly what he is saying. He has authority, as Presiding Judge, to do that."
As for his views on the merits of the case, Judge Haines said, "I didn't like the facts as I read them: a woman walking down the street, thrown to the ground, two people attacking- you know, that's a robbery. And he's getting a big, big break, a real big break, okay, to get a grand theft. [¶]... [A]nd there were two of them, you just have a weaker ID on the second. [¶]... [¶]... This is serious criminal behavior. People go to prison for this stuff. And robbers, by the way, generally do go to prison." The prosecutor said he had agreed to "the lesser... non-strike felony charge because there was no injury, no weapon this defendant used, and he is 18 with no record," and the judge responded, "That I understand. And that's the reason I said I would accept that disposition.... [¶] So I do believe in giving people a chance. But you know, I said what I said, this is serious stuff here."
The case was continued to the next week. Defendant did not accept Judge Haines's proposed disposition, and proceeded ...