Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MJ13967, Richard E. Naranjo, Judge
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Minor L.S. appeals from the juvenile court’s judgment ordering his camp community placement for a minimum of six months. We affirm.
FACTS AND PROCEEDINGS
At 2:00 a.m. one morning in August 2007, Los Angeles County sheriff’s deputies pulled over a car in which L.S. was a backseat passenger. Standing alongside the car, a deputy ordered L. and other passengers to place their hands on the headrests in front of them. L. did not comply. Instead, he put his left hand in his pocket. With his gun drawn, the deputy told L. to remove his hand from his pocket and place it on the headrest. L. slowly removed his cupped fist from his pocket as if trying to hide something and rested it on his lap next to his right hand. Aiming his gun’s laser targeting scope at L.’s head, the deputy repeated his order that L. put his hands on the headrest and warned that if he did not he was “probably going to die.” L. uncupped his hands and put them on the headrest. As he did so, the deputy saw something drop from L.’s grasp. Searching the car floor later, the deputy found a gun where L. had been sitting.
The People filed a petition under Welfare and Institutions Code section 602 against L. for possession of a concealed gun in a car. He denied the petition’s allegations. After adjudication, the court sustained the petition. The court ordered L.’s confinement in community camp for a minimum of six months, with his maximum confinement not to exceed five years and eight months. This appeal followed.
DISCUSSION
In the morning of the adjudication hearing, the following colloquy occurred among the court, L., defense counsel, and prosecutor before the court began to hear testimony.
“[Court] [L.], I just want you to know [your defense counsel] asked if I would consider letting you admit and earn your way out of going to camp and I told her no because I just put you on probation in March. . . . [¶] . . . [A]nd I put you home on probation back in March and now allegedly the charge – you are charged with possessing a firearm, so I told her no if you wanted to admit today it would be the three months camp. If you want to have a trial we’ll have a trial. Once I hear the evidence in the trial if the People proved the case I don’t know that I would still go along with three month camp; it could be longer. I don’t know. So whatever you want to do is fine with me. [¶] [Defense counsel] Your Honor, I also did ask the district attorney to allow him EWOC as a counteroffer and as much – right now we’ll withdraw that and just announce ready for the adjudication. [¶] [Court] Well, I have made him an offer, okay. Does he want to accept or reject my offer? [¶] [Defense Counsel] One moment, your Honor. [¶] [Prosecutor] You made him three months? [¶] [Court] Yeah. [¶] [Prosecutor] That was my offer, too. [¶] [Court] Same offer as the People? Okay. [¶] [Prosecutor] Yeah.
L. rejected the offer, and the adjudication proceeded. At the end of the adjudication hearing, the court sustained the petition and ordered L.’s confinement in community camp for at least six months. L. contends the six month minimum, instead of the three months the court had indicated earlier in the morning, was unlawful retaliation by the court for his going to trial. The record does not support the contention.
A court may not punish a defendant for exercising his constitutional right to trial. (In re Lewallen (1979) 23 Cal.3d 274, 278-279, 280-281.) Although the imposition of a longer sentence after a trial than had been discussed in pretrial proceedings implicates the constitutional prohibition, it does not prove by itself retaliation. (People v. Szeto (1981) 29 Cal.3d 20, 35.) To the contrary, a court may lawfully impose a sentence harsher than a proposed pretrial disposition based on facts about the offense that emerged from the trial. (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276-277 (Felmann).)
Here, the People’s petition alleged L. had carried a concealed gun in a car. But the facts adduced at trial showed the encounter between L. and the deputies was more perilous than the petition’s bare allegations suggest. L. disobeyed the deputy’s repeated orders to place his hands on the headrest. His disobedience pushed the confrontation toward a potentially fatal climax with the deputy aiming his gun at L.’s head and threatening to shoot if L. did not unclench his hands and move them to the headrest. The court credited the peaceful denouement to the deputy, noting “Thankfully [L.] is alive today because Deputy Kim showed great restraint in not emptying his clip into him.”
L. does not discuss how the evidence from the adjudication likely influenced the court’s assessment of a suitable minimum camp confinement. Instead his brief summarizes his offense as follows: “[L.] had been on probation, had been out past curfew, and had been in a car with, and at least for a moment in possession of a loaded firearm. The adjudication showed nothing more egregious than this.” (Italics added.) Of course, the adjudication showed much more. By not addressing the facts developed against him at trial, L. fails to show the court’s imposition of a minimum of six months’ confinement at camp was retaliation for going to trial. (Contrast People v. Morales (1967) 252 Cal.App.2d 537, 542 fn. 4 [court unlawfully increased sentence because court wanted “the word to go back to” other potential defendants that they would pay a price for going to trial without a viable defense].)
We observe that selective remarks by the trial judge could be read as suggesting L. was “punished” for going to trial. For example: “The Court: He could have got rewarded for going early and getting this matter taken care of and beginning rehabilitation, but no, he chose to fight this denying to the end that he didn’t possess this gun.” Notions of “reward,” “fight” and “punishment” in the context of plea negotiations raise the specter of interference with a defendant’s right to trial on balance. Here, given the serious, life threatening testimony that came out at the hearing, we are confident the trial court did not interfere with L.’s constitutional rights.
L. also contends the court improperly engaged in plea negotiations with him when the court stated before the adjudication hearing that it would impose three months’ camp placement if L. admitted the petition’s allegations without a trial. L. is correct that separation of powers prohibits a court from negotiating a plea bargain with a defendant, which is an exclusively prosecutorial prerogative. (Felmann, supra, 59 Cal.App.3d at p. 276.) A careful reading of the pre-adjudication colloquy leads us to conclude, however, that the court was not negotiating a plea with L. when the court proposed three months at camp. Instead, it was indicating what it believed was a proper sentence based on the then-existing record. (Felmann, at p. 276 [stating an indicated disposition is not plea bargaining].)
L. notes that the court spoke of three months’ confinement as its “offer,” but that language does not support the inference that the court was overstepping its judicial role. What matters is the substance of the court’s discussion with L. and his counsel, not the words the court chose. (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1266 fn. 2 [“In taking the pleas and admission, the trial court used the words ‘promise’ and ‘commitment.’ The choice of words is not determinative.”].) The colloquy does not indicate the court was trying to assume executive powers or override the prosecutor’s prerogative to negotiate pleas. In fact, one would expect that if the prosecutor had believed the court was infringing on the prosecutor’s privileges, the prosecutor would have objected; instead, the prosecutor seconded the court’s belief in the suitability of three months’ confinement by affirming he had previously “offered” three months to L. Furthermore, during the court and counsels’ discussion of L.’s placement after the court sustained the petition, defense counsel referred to three months as the court’s “indicated” disposition. In addition, defense counsel framed her objection to six months’ minimum confinement in terms of whether the court had heard evidence during the adjudication that justified departing from the previously indicated three months – a framing consistent with three months being an indicated sentence, not a binding plea bargain. (See Felmann, supra, 59 Cal.App.3d at pp. 276-277 [court may depart from indicated pre-trial sentence based on what it learns during trial].) Based on the foregoing we conclude that even if the court used the word “offer” inaptly, it was merely disclosing its indicated sentence, and not improperly engaging in plea negotiations. (People v. Superior Court (Ramos), supra, at p. 1266 fn. 2 [noting helpfulness to reviewing court and parties when trial court speaks more precisely of the “indicated sentence”].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.