¶1The majority opinion reveals a profound misunderstanding of both the trial judge’s remarks and the constitutional principles applicable to plea bargaining.
¶2A fair reading of the record clearly reveals the judge was saying: (1) Under a plea bargaining system a defendant pleads guilty in exchange for more lenient treatment than he could reasonably expect to receive upon being convicted after trial. (2) Therefore, while a defendant who pleads not guilty and is convicted after jury trial must not be penalized for exercising his constitutional rights, he is not necessarily entitled to the lenient treatment he would have received for pleading guilty. Rather, such a defendant must show that leniency is appropriate under the facts and circumstances of his case. (3) Petitioner failed to make the required showing; to the contrary, aggravating factors of substantial importance were revealed by the evidence adduced at trial.
¶3The majority take exception to two remarks made by the trial judge. “First, in response to defense counsel’s suggestion that placing petitioner on informal probation would suffice, the trial judge responded, ‘You mean whether or not there’s a disposition or not after a jury trial?’ Second, after sentencing the trial judge stated, T think I want to emphasize there’s no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody’s time, and what’s he got to,lose. And as far as I’m concerned, if a defendant wants a jury trial and he’s convicted, he’s not going to be penalized with that, but on the other hand he’s not going to have the consideration he would have had if there was a plea.’ ” (Ante, p. 277.)
¶4As to the first remark, the majority misconceive its significance when they simply state it was “in response to defense counsel’s suggestion that placing defendant on informal probation would suffice.” Defense counsel *283not only argued that informal probation was appropriate in the circumstances of this case, but added: “I think that’s pretty much standard on drunk driving cases.” It was with regard to the latter assertion that the judge inquired: “You mean whether or not there’s a disposition or not after a jury trial?” The point of the judge’s question is that in a plea bargaining system leniency is exchanged for guilty pleas, with the result that the “standard” sentence for drunk driving entered upon a bargained for plea will be more lenient than the “standard” sentence for that offense entered upon a jury conviction. As will be demonstrated below, this disparity is constitutionally unobjectionable.
¶5With regard to the second statement, the majority cannot deny that the judge expressly affirmed, “as far as I’m concerned, if a defendant wants a jury trial and he’s convicted, he’s not going to be penalized with that . . . .” However, they argue that the judge contradicted himself when he went on to say of such a defendant: “but on the other hand he’s not going to have the consideration he would have had if there was a plea.” There is, of course, no contradiction here. As has been stated earlier, the judge clearly meant that, although a defendant who pleads not guilty and is convicted after jury trial must not be penalized for exercising his constitutional rights, he is not necessarily entitled to the lenient treatment he would have received for pleading guilty, but must show that leniency is appropriate under the facts of his case. So understood, the judge’s remarks are clearly consistent with the constitutional principles applicable to plea bargaining, as will now be shown.
¶6In Corbitt v. New Jersey (1978) — U.S. — [58 L.Ed.2d 466, 99 S.Ct. 492], the high court considered the constitutionality of a New Jersey statute that provides for imposition of a mandatory life sentence on a defendant convicted of first degree murder after a jury trial, but that also allows a trial judge discretion to accept a plea of nolo contendere to homicide generally and then to impose life imprisonment or a lesser sentence. The defendant contended that the possibility of a sentence of less than life upon a plea of nolo contendere, combined with the absence of a similar possibility when found guilty of first degree murder by a jury, was an unconstitutional burden on his rights under the Fifth, Sixth and Fourteenth Amendments and also violated his right to equal protection under the Fourteenth Amendment. In rejecting these contentions the court restated the constitutional principles applicable to this case.
¶7“Had Corbitt tendered a plea and had it been accepted and a term of years less than life imposed, this would simply have recognized the fact *284that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account. The States and the Federal Government are free to abolish guilty pleas and plea bargaining; but absent such action, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. New Jersey has done no more than that. [1Í] . . . There is no doubt that those homicide defendants who are willing to plead [nolo contendere] may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed. Those cases, as we have said, unequivocally recognize the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based.” (— U.S. at p. —, [58 L.Ed.2d at pp. 476-477].)
¶8Reiterating this point, the court stated: The system of plea bargaining “permits a proper amount of leniency in return for pleas, leniency that is denied if one goes to trial. In this sense, the standard of punishment is necessarily different for those who plead and for those who go to trial. For those who plead, that fact itself is a consideration in sentencing, a consideration that is not present when one is found guilty by a jury.” (Id, at p. —, fn. 14 [58 L.Ed.2d at p. 477].)
¶9The foregoing principles are, I submit, entirely consistent with the trial judge’s statement that “there’s no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody's time, and what’s he got to lose. And as far as I’m concerned, if a defendant wants a jury trial and he’s convicted, he’s not going to be penalized with that, but on the other hand he’s not going to have the consideration he would have had if there was a plea.”
¶10Moreover, the majority opinion does not tell us the trial judge prefaced the foregoing statement with the observation: “I think this case is much more serious than perhaps appears on the surface . . . .” Certainly the presentence report provided substantial grounds for denying petitioner the leniency granted a defendant entering a bargained-for guilty plea to the simple offense of drunk driving. First, the majority concede that petitioner’s participation in a drug rehabilitation program as a condition of probation was justified by information in the presentence report that *285he was in possession of hand-rolled cigarettes and double-crossed white pills when arrested. (Ante, p. 281, fn. 3.)
¶11Second, as the majority concede (ante, p. 281), factors legitimately influencing sentencing may come to the court’s attention during trial. In this case the judge came to the justified conclusion that, while petitioner had been acquitted of the firearm charges, his probation should be conditioned on confiscation of the firearm found in his possession and on future nonpossession of firearms.
¶12We have not been furnished with a reporter’s transcript of the trial, but the presentence report indicates that when petitioner used the hospital restroom an officer observed him remove something from his pants and drop it behind the restroom door, producing the sound of a metal object hitting the floor. The only metal object the officer found behind the door was a loaded .38 caliber derringer. According to the judge’s summary of the evidence, petitioner admitted ownership of the pistol but claimed he “gave it to his cousin who had six kids and lived in Pacifica and needed it for herself and protection. He gave it to her the day after he got it, and suddenly the gun turns up at the washroom in the Emergency Hospital.” The judge “recogniz[ed] fully that the jury did not convict [petitioner] on the gun charge.” However, in the absence of any reasonable explanation for the pistol’s presence in the hospital restroom, the judge would have been, as he said, “naive if I ignored it in imposing sentence.”
¶13Finally, the presentence report revealed that while petitioner had not run afoul of the law recently, he had a bad record. “Between the years of 1952 and 1971 the defendant has had a substantial number of arrests. In 1961, his probation was revoked and he was sentenced to State Prison for six months to ten years. In 1963, he was paroled. In 1964, he was sent back to prison for [burglary] .... The defendant was paroled on March 30, 1967 and discharged on April 25, 1969.”
¶14In conclusion, as has been stated, the record amply supports the trial court’s refusal to extend petitioner the leniency that would be granted to a defendant entering a bargained-for guilty plea to the simple offense of drunk driving.
¶15The writ should be denied.