People v. Mikhail

In People v. Mikhail (1993) 13 Cal.App.4th 846, defendant was charged with murder, attempted murder and assault with a deadly weapon. Defendant entered a plea of guilty to the lesser included offense of voluntary manslaughter in exchange for dismissal of the remaining charges. (Id. at p. 850.) The plea included no restrictions on the court's sentencing power. ( Ibid.) The court took the plea, granted the motion to dismiss the other charges and set the matter for sentencing before another judge. (Id. at p. 851.) The sentencing judge stated he believed the charge of voluntary manslaughter too light and that a jury should decide the matter. (People v. Mikhail, supra, 13 Cal.App.4th at p. 851.) Over the prosecutor's objection, he declined to sentence and reinstated the original charges. (Ibid.) In a subsequent jury trial, defendant was convicted of second degree murder, attempted second-degree murder and assault with a deadly weapon. (Id. at p. 852.) In Mikhail the Court noted that both the charging of offenses and the negotiation of pleas to lesser offenses are matters solely within the province of the executive branch. On the other hand the imposition of sentence is exclusively a judicial function. Pleas taken under Penal Code section 1192.1 do not specify a sentence. Since the plea under section 1192.1 does not affect its sentencing function, a court is forbidden by the doctrine of separation of powers from vacating the plea and reinstating the original charges. (People v. Mikhail, supra, 13 Cal.App.4th at pp. 852-857.)