Is a plea of guilty to a charge of second degree burglary valid?

It is clear that a magistrate is authorized to accept a plea of guilty to any noncapital felony charge "at any time . . . while the charge remains pending before the magistrate" ( 859a) and thereafter to certify the matter to the superior court for further proceedings (People v. Superior Court (Barke) (1976) 64 Cal.App.3d 710, 715, 134 Cal.Rptr. 704). However, when the plea tendered to the magistrate pertains "to a [85 Cal.App.3d 967] crime divided into degrees," such plea may specify the degree only with The consent of the prosecuting attorney expressed in open court and the magistrate's approval. ( 1192.2, 1192.4.) ⁶ (Cf. 1192.1 imposing

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In effect, in reducing the charge to a misdemeanor burglary followed by acceptance of a plea of guilty, the magistrate improperly fixed the degree of the admitted crime as second degree burglary. (See 461.) Yet, absent the required prosecutorial consent, the magistrate was without authority to accept a guilty plea to such a "divided crime." In such circumstances the purported plea must be deemed withdrawn and the original felony charge remains subject to further appropriate pleas. ( 1192.4.) And unless such offense is properly determined to be burglary in the second degree, it is not an offense punishable in the court's discretion alternatively (a "wobbler") "by imprisonment in the state prison or . . . county jail" ( 17, subd. (b)) empowering the magistrate to declare it a misdemeanor under subdivision (b)(5). The attempt to circumscribe the explicit statutory restriction by purporting to invoke the statutory power reducing the charge to second degree burglary was wholly ineffectual and void. Under such circumstances the magistrate was without jurisdiction to accept the nonconsensual plea and the purported imposition of sentence on the invalid reduced misdemeanor charge constituted a nullity. (See Burris v. Superior Court, supra, 43 Cal.App.3d 530, 538, 117 Cal.Rptr. 898.) ⁷