Balinton

In this case we hold a trial court is authorized to set the degree of the offense upon a plea of guilty to murder despite the presence of a special circumstance allegation. The People challenge an order determining two counts of murder to be in the second degree. We affirm.

An amended information charged Mark Balinton with two counts of murder (Pen. Code, § 187), two counts of second degree robbery (§ 212.5, subd. (b)) and one count of attempted murder (§§ 187, 664), all with firearm use (§ 12022.5, subd. (a)). The information included a special circumstance allegation of more than one first or second degree murder. (§ 190.2, subd. (a)(3).)

Balinton pleaded guilty to all offenses and admitted all firearm use allegations as set forth in the information. The pleas occurred as a result of discussions with the court, with the understanding that the court would determine the degree of the murders based on the preliminary hearing transcripts and a witness’s statement, and upon a finding that the murders were in the second degree the indicated sentence would be 15 years to life for the murders but the court would retain discretion in imposing the firearm use enhancements. The…