Article Bank # A-69 *TEXT CONTINUES ON A-69-ii*
REPORTED THREE STRIKES OPINIONS AS OF SEPTEMBER 14, 2005
(Case names and citations, when they appear in bold, are new additions to the outline.)
By Gary M. Mandinach
PENDING CASES BEFORE
THE CALIFORNIA SUPREME COURT
1. CAN THE PROSECUTION APPEAL A GRANT OF PROBATION
a. People v. Samples (S112201) formerly at (2002) 104 Cal.App.4th 76, the Fourth Appellate District, Division 1, held that pursuant to section 1238, subdivision (d), the Court of Appeal lacks jurisdiction to hear an appeal by prosecution from order granting probation following judicial determination that sister-state conviction was not a “strike,” since “not true” findings are not appealable and orders granting probation are not appealable except as explicitly authorized by statute. (See People v. Robles (1997) 52 Cal.App.4th 157; see also People v. Douglas (1999) 20 Cal.4th 85, 92-93.) The Court of Appeal found that subdivision (a)(10) of section 1238 does not apply since the defendant was granted probation, and not “sentenced.” Additionally, the Court of Appeal held that the prosecution could not appeal within the meaning of section 1238, subdivisions (a)(1) or (8).
2. IF THE TRIAL COURT DISMISSES A PRIOR CONVICTION UNDER THE THREE STRIKE LAW, WITH RESPECT TO THE COMPUTATION OF THE TERM TO BE IMPOSED ON SOME BUT NOT ALL COUNTS, IS THE DEFENDANT NONETHELESS SUBJECT TO MANDATORY CONSECUTIVE SENTENCE ON ALL CONVICTIONS ARISING OUT OF THE SAME SET OF OPERATIVE FACTS, INCLUDING THOSE COUNTS AS TO WHICH THE PRIOR CONVICTIONS WERE DISMISSED.
a. People v. Johnson (S113803) formerly at: (2003) 105 Cal.App.4th 505, the Sixth Appellate District held that when the trial court strikes strikes within the meaning of People v. Garcia (1999) 20 Cal.4th 490, 503-504, if the crimes were committed on different occasions or based on a different set of operative facts, the court must still sentence appellant consecutively.
3. CAN THE PROSECUTION APPEAL A NOT TRUE FINDING ON A PRIOR CONVICTION
a. People v. Dale (S114527) GRANT AND HOLD BEHIND PEOPLE v. SAMPLES (S112201); formerly at: (2003) 106 Cal.App.4th 194, the Sixth Appellate District held that the trial judge’s “not true” on the question of whether allegation that prior conviction was a serious or violent felony for purposes of the Three Strikes Law, is not appealable. The trial court was free to reject the testimony of a witness even where that testimony is uncontradicted. (People v. Anderson (1966) 243 Cal.App.2d 243, 247.) Here, the court considered the testimony of the witness from the preliminary hearing transcript. The prosecution was not prevented from putting on other evidence or from fully presenting its case to the court. Consequently, the trial prosecution cannot appeal pursuant to section 1238, subdivision (a)(1). Nor can it appeal within the meaning of section 1238, subdivision (a)(10), as the not true finding did not result in a sentence based on an unlawful order of the court which strikes or modifies the effect of a prior conviction.
4. IS STRIKE SENTENCING IMPLICATED IN THE GROUP BEATING EXCEPTION FOR PURPOSES OF FINDING GREAT BODILY INJURY TO ENHANCE A PRESENT OR FUTURE SENTENCE?
a. People v. Modiri (S120238). The court directed the parties to address the following issue in their briefs: Is the so-called “group beating exception” (see People v. Corona (1989) 213 Cal.App.3d 589), as embodied in CALJIC No. 17.20, to the requirement of a finding of personal infliction of great bodily injury for purposes of enhancing a present or future sentence (see Pen. Code, §§ 667, subds. (a), (c), (d)(1), 1170.12, subds. (a), (b)(1), 1192.7, subd. (c)(8), 12022.7) inconsistent with People v. Cole (1982) 31 Cal.3d 568?
6. DOES THE DEFENDANT’S NEBRASKA PRIOR FOR SEXUAL ASSAULT QUALIFY AS A SERIOUS FELONY ALTHOUGH THE NEBRASKA STATUTE DOES NOT INCLUDE ALL OF THE ELEMENTS OF ANY FELONY UNDER CALIFORNIA LAW AMOUNTING TO LEWD AND LASCIVIOUS CONDUCT ON A CHILD UNDER 14 WITHIN THE MEANING OF SECTION 1192.7, SUBDIVISION (C)(6)?
a. People v. Warner REVIEW GRANTED (S126233) FORMERLY AT: (2004) 119 Cal.App.4th 331 wherein the Third Appellate District held that a conviction under a Nebraska statute criminalizing sexual assault on a child 14 years of age or younger is not a qualifying prior sexual offense under provisions of the habitual sexual offender statute (§ 667.71) permitting an offense which includes all of the elements of section 288, subdivision (a) to serve as a qualifying offense, since section 288, subdivision (a) includes a specific intent element not required under the Nebraska law. However, a conviction under a Nebraska statute criminalizing sexual assault on a child 14 years of age or younger is a serious felony under three-strikes law where the record of conviction establishes that victim was younger than age 14, since the three-strikes law specifies that a conviction of any lewd or lascivious act on a child under the age of 14 years qualifies as a serious felony.
The court has now limited the review to the following: Does the defendant’s prior conviction of sexual assault of a child under Nebraska Revised Statutes, section 28-320.01 qualify as a serious felony for sentencing purposes in California as a “lewd and lascivious act on a child under the age of 14 years” within the meaning of Penal Code section 1192.7, subdivision (c)(6), for purposes of Penal Code sections 667, subdivision (a), 667, subdivisions (b) through (i), and 1170.12, subd. (b)(2), even though Penal Code sections 667, subdivision (a), 667, subdivision (d)(2), and 1170.12, subdivision (b)(2), require that a prior felony conviction from another jurisdiction include “all of the elements” of a California serious felony and even though the Nebraska statute does not require that the perpetrator have acted “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child” (Pen. Code § 288, subd. (a))?
7. CAN THE COURT SUBSTITUTE TWO ATTEMPTED CRIMES, BOTH WHICH CONSTITUTE STRIKES, FOR ONE COMPLETED COUNT WHERE THE COURT OF APPEAL FOUND THE EVIDENCE INSUFFICIENT TO SUPPORT THAT CONVICTION, OR IS ONLY ONE CRIME PERMITTED?
a. People v. Navarro REVIEW GRANTED (S132666) formerly at: (2005) 127 Cal.App.4th 159, the Fifth Appellate District held that where was insufficient evidence to support a conviction for attempted kidnaping during a carjacking (see § 209.5, subd. (a)), since there was no movement of the vehicle and therefore no completed carjacking, the appropriate remedy was to modify the judgment by striking the original single conviction, and substituting convictions for both attempted kidnaping and attempted carjacking. The Court of Appeal found that the substitution of two “strike” convictions for a single such conviction did not cause an unconstitutional increase in punishment where total sentence imposed for the two offenses would be less than that for the original offense, which was life with the possibility of parole, (Cf. see People v. Hanson (2000) 23 Cal.4th 355, 357; People v. Henderson (1963) 60 Cal.2d 482, 95-497 [when a defendant successfully appeals a sentence the constitution prohibits more sever punishment on resentencing based on double jeopardy principles], and the defendant would not be in jeopardy of a three-strikes sentence, for these offenses, if he did not commit a subsequent offense. In this case, there were other felony offenses which placed him at risk of being a third striker in any case. As a result, the Court of Appeal found that attempted kidnaping and attempted carjacking are lesser included offenses to kidnaping for the purpose of carjacking.
8. DID THE LOWER COURT FAIL TO PROPERLY EXERCISE ITS DISCRETION TO STRIKE A PRIOR CONVICTION?
a. In re Large, S127754. Original proceeding. The court issued an order to show cause limited to the following claim: Is petitioner entitled to relief on the ground the trial court failed to exercise properly its discretion to dismiss prior conviction allegations under the three strikes law?
9. WAS THE PROOF ADEQUATE TO PROVE A PRIOR CONVICTION
a. People v. Delgado, S141282; People v. Miles, S140413.
Delgado and Miles both concern the adequacy of proof that a prior conviction was a serious felony for purposes of recidivist sentencing. (See People v. Rodriguez (1998) 17 Cal.4th 253.) In Delgado, the issue is whether the reference to “245(a)(1) ASSLT W DWPN” in the abstract of judgment for the prior conviction sufficed to prove that the defendant had previously violated section 245, subdivision (a)(1), by committing assault with a deadly weapon rather than assault by means of force likely to produce great bodily injury. (See § 1192.7, subd. (c)(31).) In Miles, the issue is whether the reference to “armed bank robbery” in the commitment form for a prior conviction in federal court sufficed to prove that the defendant had previously violated 18 U.S.C. section 2113(a) by committing an offense that would constitute robbery\ under California law rather than the version of the federal crime that would be commercial burglary under California law. (See § 1192.7, subds. (c)(19), (d).)
10. People v. Trujillo, S130080
a. Did the trial court err in ruling that the defendant’s alleged prior conviction for inflicting corporal injury in violation of section 273.5, subdivision (a), was “not a strike”?
BY THE CALIFORNIA SUPREME COURT
1. PENAL CODE SECTION 1385
2. A BURGLARY, NOT LISTED WITHIN 1192.7, SUBDIVISION (C)(18), CAN BE USED AS A STRIKE
3. AMENDING THE INFORMATION TO ADD PRIORS AFTER DEFENDANT PLED
4. OUT OF STATE PRIORS AND STRIKES AFTER THE INITIATIVE
5. THE TRIAL COURT HAS DISCRETION TO REDUCE A WOBBLER TO A MISDEMEANOR AND THE SCOPE OF DISCRETION IS NOT LIMITED TO A DEFENDANT’S BAD RECORD–OTHER FACTORS MUST BE CONSIDERED
6. CONSECUTIVE SENTENCES ARE NOT MANDATED UNDER THE THREE STRIKES LAW WHEN A DEFENDANT ON PROBATION COMMITS A NEW OFFENSE AND IS SENTENCED FOR BOTH THE NEW OFFENSE AND THE ORIGINAL OFFENSE FOLLOWING THE REVOCATION OF PROBATION.
7. EX POST FACTO
8. THE THREE STRIKES LAW DOES NOT SUPERSEDE THE DEATH PENALTY LAW
9. A FITNESS FINDING IS NOT REQUIRED FOR A JUVENILE ADJUDICATION TO QUALIFY AS A STRIKE
10. SERIOUS FELONY PRIORS ARE ADDED ON TOP OF THE DESIGNATED LIFE TERM IN A THREE STRIKES CASE
11. MANDATORY CONSECUTIVE V. DISCRETIONARY CONCURRENT SENTENCES
12. BROUGHT AND TRIED SEPARATELY/RECIDIVIST ARGUMENTS
13. NO REMAND IN SILENT RECORD CASES
14. IN A NON-CAPITAL CASE, NEITHER THE STATE OR FEDERAL PROHIBITIONS AGAINST DOUBLE JEOPARDY APPLY TO A RETRIAL WHEN THE COURT OR JURY DETERMINES THE TRUTH OF THE PRIOR CONVICTION ALLEGATION IS INSUFFICIENT
15. THE COURT OF APPEAL MAY REVIEW A TRIAL COURT’S DETERMINATION TO STRIKE A STRIKE UNDER AN ABUSE OF DISCRETION STANDARD
16. A DEFENDANT MUST BE PRESENT FOR THE ROMERO REMAND (RESENTENCING), BUT NOT FOR A ROMERO WRIT PROCEEDING
17. AN ASSAULT WITH A DEADLY WEAPON MUST EITHER SHOW THE DEFENDANT PERSONALLY USED A WEAPON OR PERSONALLY INFLICTED GREAT BODILY INJURY ON A PERSON OTHER THAN AN ACCOMPLICE
18. A COURT OF APPEAL OPINION CAN CONSTITUTE A RECORD OF CONVICTION FOR PURPOSE OF PROVING A SERIOUS FELONY ENHANCEMENT
19. A DEFENDANT WHO PLEAD GUILTY WITHOUT A NEGOTIATED DISPOSITION OR BARGAINED FOR SENTENCE WHICH LIMITS THE TRIAL COURT’S SENTENCING DISCRETION, CAN RAISE CLAIMS OF SENTENCING ERROR ON APPEAL WITHOUT HAVING FIRST OBTAINED A CERTIFICATE OF PROBABLE CAUSE
20. A PREVIOUSLY STAYED CONVICTION CAN BE USED AS A STRIKE
21. THE TRIAL COURT DOES NOT HAVE TO ADVISE APPELLANT OF HIS LIMITS ON HIS ABILITY TO EARN CONDUCT CREDITS AND THAT HE MUST SERVE 4/5TH OF THE TOTAL SENTENCE BEFORE HE IS ELIGIBLE FOR PAROLE AND IT IS NOT A VIOLATION OF BOYKIN/TAHL/BUNNELL LINE OF CASES.
22. A JUVENILE ADJUDICATION QUALIFIES AS A STRIKE IF IT IS AN OFFENSE LISTED IN WELFARE AND INSTITUTIONS CODE SECTION 707, SUBDIVISION (B) AS WELL AS PENAL CODE SECTION 1192.7. HOWEVER, IN A MULTIPLE COUNT PETITION, IF THE MINOR IS FOUND TO BE A WARD FOR ONE OFFENSE THAT IS A SECTION 707, SUBDIVISION (B) OFFENSE AND ONE IS NOT A 707, SUBDIVISION (B) OFFENSE, THEN THE MINOR QUALIFIES FOR TWO STRIKES AND NOT MERELY ONE.
23. A DEFENDANT SENTENCED TO A “LIFE” TERM IS SENTENCED TO DOUBLE THE TERM PROSCRIBED IN SECTION 3046 OR A HIGHER TERM ESTABLISHED PURSUANT TO ANOTHER SECTION OF THE LAW-HERE, SECTION 186.22, SUBDIVISION (b)(4)
24. IN A TWO STRIKE SENTENCE, THE SUBORDINATE COUNTS ARE DOUBLED AT ONE THIRD THE MID TERM AND NOT DOUBLED AT FULL TERM
25. THE COURT, AND NOT THE JURY, MAKES THE DETERMINATION THAT A PRIOR CONVICTION IS A SERIOUS OR VIOLENT FELONY
26. A DEFENDANT WHO IS SUBJECT TO AN INDETERMINATE THREE STRIKE SENTENCE, IS NOT LIMITED TO 15% PRESENTENCE CREDITS WHEN HE WAS CONVICTED OF A DETERMINATE SENTENCE CRIME WHICH WOULD NOT SUBJECT HIM TO A LIFE TERM WITHIN THE MEANING OF SECTION 667.5, SUBDIVISION (C) (7).
27. COMPUTER PRINTOUTS OF THE DEFENDANT’S CRIMINAL HISTORY ARE ADMISSIBLE UNDER BUSINESS RECORD EXCEPTION (EVIDENCE CODE SECTION 1280) TO PROVE A PRIOR FELONY CONVICTION OR PRIOR PRISON TERM
28. THE DEFENDANT IS NOT ENTITLED TO PRESENTENCE CREDITS ON HIS/HER INDETERMINATE TERM WHICH WAS IMPOSED SOLELY DUE TO HIS THREE STRIKE SENTENCE WHERE THE CREDITS WOULD NOT ATTACH TO A DETERMINATE TERM
29. THE PROSECUTION CANNOT AMEND THE INFORMATION TO ADD STRIKES AFTER THE JURY HAS COMPLETED THE GUILT PHASE AND HAS BEEN DISCHARGED
30. DENIAL OF A JURY TRIAL ON A DEFENDANT’S PRIOR OFFENSES IS NOT STRUCTURAL ERROR
31. A NON-FORCIBLE SEXUAL OFFENSE AGAINST A MINOR UNDER 14 DOES CONSTITUTE A STRIKE
32. A JUROR IS NOT PERMITTED TO ENGAGE IN JURY NULLIFICATION
33. IT IS NOT IMPROPER TO USE AN ELEMENT OF THE OFFENSE TO DOUBLE THE DEFENDANT’S TERM; THEREBY NOT APPLYING EDWARDS TO STRIKE CASES BASED ON THE WORDING OF THE STATUTE.
34. A DEFENDANT IS NOT ENTITLED TO GOOD BEHAVIOR CREDITS UNDER SECTION 4019 FOR THE TIME HE SPENT IN COUNTY JAIL WHILE AWAITING REMAND FOR RESENTENCING. HOWEVER, THE TRIAL COURT, AT THE TIME OF THE REMAND MUST RECALCULATE ALL ACTUAL DAYS OF CUSTODY CREDITS EARNED AT THE TIME OF THE REMAND WHETHER IN JAIL OR PRISON AND AWARD SUCH IN THE NEW ABSTRACT OF JUDGMENT.
35. SECTION 667.61 (the one strike law) AND THE THREE STRIKES LAW, OPERATE JOINTLY, AND THE MINIMUM TERM OF THE ONE STRIKE LAW CAN BE TRIPLED UNDER THE THREE STRIKES LAW, AND THE SECTION 667, SUBDIVISION (a)(1) CAN BE ADDED TO THE TERM.
36. RETRIAL OF A JUVENILE STRIKE PRIOR IS PERMISSIBLE.
37. PLEA IN ARIZONA TO AGGRAVATED ASSAULT WITH A HANDGUN QUALIFIES AS A STRIKE EVEN THOUGH DEFENDANT WAS PLACED ON PROBATION AND THE CASE ULTIMATELY DISMISSED
38. A DEFENDANT IS ENTITLED TO A “REDUCTION OF SENTENCE” UNDER SECTION 2935 FOR HIS LIFE SAVING ACTION, AND IS NOT LIMITED BY THE 20% CREDIT LIMITATION OF SECTION 667, SUBDIVISION (C) (5).
39. WHEN THE TRIAL COURT DISMISSES A PRIOR CONVICTION UNDER THE THREE STRIKES LAW, WITH RESPECT TO THE COMPUTATION OF THE TERM TO BE IMPOSED ON SOME BUT NOT ALL COUNTS, THE DEFENDANT IS NONETHELESS SUBJECT TO THE MANDATORY CONSECUTIVE SENTENCE ON ALL CONVICTIONS ARISING OUT OF THE SAME SET OF OPERATIVE FACTS, INCLUDING THOSE COUNTS AS TO WHICH THE PRIOR CONVICTIONS WERE DISMISSED.
40. THE TRIAL COURT’S DECISION NOT TO STRIKE A STRIKE IS REVIEWED BASED ON A DEFERENTIAL ABUSE OF DISCRETION STANDARD
41. THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING A STRIKE, BY CONSIDERING EVIDENCE PRESENTED AT THE PRELIMINARY HEARING IN THE PRIOR CASE THAT PRECEDED DEFENDANT’S GUILTY PLEA IN THAT MATTER
42. PRIOR SERIOUS FELONY CONVICTIONS ARE ADDED TO EACH INDETERMINATE COUNT IN A THREE STRIKES CASE
43. SECTION 1192.7, SUBDIVISION (B)(28), A PROVISION PERTAINING TO CRIMINAL STREET GANG “ENHANCEMENTS” DOES TRANSFORM THE UNDERLYING OFFENSE OF SECTIONS 12021, OR 12025 INTO SERIOUS FELONIES FOR PURPOSES OF A THREE-STRIKE SENTENCE OR SERIOUS FELONY ENHANCEMENT
BY THE CALIFORNIA COURT OF APPEAL
DOUBLING SUBORDINATE COUNTS
DUAL USE IN TWO STRIKE CASES
EX POST FACTO
THE MARCH 7, 1994 ARGUMENT
PRIORS COMMITTED BEFORE 1982 AND/OR 1977
PENAL CODE SECTION 17, SUBDIVISION (b) ISSUES
THREE STRIKE SENTENCING CALCULATIONS
MANDATORY CONSECUTIVE V. CONCURRENT SENTENCES
PENAL CODE SECTION 1385 AND RELATED ISSUES
D.A.’s POWER TO STRIKE PRIOR AFTER THE ALLEGATION IS FOUND TRUE
PLEA BARGAIN ISSUES
CRUEL AND/OR UNUSUAL ARGUMENTS
URGENCY LEGISLATION ARGUMENTS
PROVING PRIORS AT PRELIMINARY HEARING
BROUGHT AND TRIED SEPARATELY/RECIDIVIST ARGUMENTS
OUT OF STATE PRIORS AND STRIKES AFTER THE INITIATIVE
DUE PROCESS/EQUAL PROTECTION AND ASCENDING/DESCENDING RECIDIVISM
SEPARATION OF POWERS–THE LEGISLATURE USURPING THE DA’S POWER
EXPUNGED PRIORS ARE STILL STRIKES
A JUDGE CAN BE DISQUALIFIED FROM RULING ON PRIORS
THREE STRIKES SENTENCE APPLIES OVER OTHER SENTENCING SCHEMES
DOUBLE JEOPARDY ISSUES
WHAT DOCUMENTS OR RECORDS CAN BE USED TO DETERMINE WHETHER A PRIOR IS A SERIOUS FELONY OR STRIKE PRIOR
GROSSLY NEGLIGENT DISCHARGE OF A FIREARM QUALIFIES AS A STRIKE
WHEN THE PRIOR WAS NOT ADMITTED OR PROVEN TO BE A SERIOUS FELONY WHEN THE PLEA WAS ENTERED, THE PROSECUTION IS NOT PRECLUDED FROM RAISING THE ISSUE ON APPELLANT’S SUBSEQUENT CONVICTION
PRIOR CONVICTION FOR CARJACKING “WITH A PERSONAL FIREARM USE” QUALIFIES AS A STRIKE
DOES THE COURT OR THE JURY MAKE THE DETERMINATION WHETHER THE SUBSTANTIVE OFFENSE IS A FELONY OR A MISDEMEANOR? AND IS THE OFFENSE A FELONY OR A MISDEMEANOR?
CAN A SERIOUS FELONY PRIOR (§ 667, SUBD. (a)) BE IMPOSED EVEN IF NOT PLED, WHEN SECTION 667, SUBDIVISION (b)-(i) ALLEGATIONS ARE PLED AND PROVEN?
THE COURT NEED NOT GIVE JURY NULLIFICATION INSTRUCTIONS
WHEN IS A PRIOR A PRIOR?
SECTION 667.61 (THE ONE STRIKE LAW) AND THE THREE STRIKES LAW, BOTH ARE APPLIED WHEN IMPOSING SENTENCE
INDETERMINATE TERM CALCULATION IN A TWO STRIKE CASE
THE PROSECUTION CAN APPEAL AN UNAUTHORIZED SENTENCE, BUT (IN SOME DIVISIONS) NOT A GRANT OF PROBATION
THERE IS NO RIGHT TO VOIR DIRE ABOUT THREE STRIKES
ENHANCEMENTS ARE NOT ADDED AT 1/3 THE MIDDLE TERM IN THREE STRIKE CASES
CAN THE CRIMINAL STREET GANG ENHANCEMENT BE ADDED TO MORE THAN ONE COUNT IN A SINGLE INFORMATION?
LAW OF THE CASE ISSUES
MUST A DEFENDANT BE PRESENT AND REPRESENTED BY COUNSEL AT A RE-SENTENCING HEARING
A JUVENILE SUSTAINED PETITION FOR RESIDENTIAL BURGLARY OR ROBBERY MAY QUALIFY AS A STRIKE EVEN THOUGH A RESIDENTIAL BURGLARY IS NOT A WELFARE AND INSTITUTIONS CODE SECTION 707, SUBDIVISION (b) OFFENSE DEPENDING ON WHICH DISTRICT YOU ARE IN, AND EVEN IF THE PROSECUTION DID NOT PROVE THE MINOR WAS PERSONALLY ARMED WITH A FIREARM DURING THE COURSE OF THE ROBBERY
DEFENDANT DOES NOT HAVE A RIGHT TO A UNITARY TRIAL ON THE CURRENT OFFENSES AND THE STRIKE ALLEGATIONS
WHEN THE SUPERIOR COURT DENIES A ROMERO WRIT AFTER GRANTING AN OSC, THE RULING IS APPEALABLE AND NOT MERELY WRITABLE IN SOME DISTRICTS
A JUVENILE IS NOT ENTITLED TO A JURY TRIAL IN JUVENILE COURT EVEN THOUGH A SUSTAINED PETITION FOR A SERIOUS OR VIOLENT FELONY WOULD QUALIFY AS A STRIKE
THE RECORD OF CONVICTION THAT DOES NOT INCLUDE SPECIFIC FACTS OF THE OFFENSE, SUCH AS SHOWING THAT THE DEFENDANT PERSONALLY USED A WEAPON, OR AS AN ACCOMPLICE WHO DID NOT USE A WEAPON, IS NOT A STRIKE; AND IF THE FACTS SHOW THAT THE DEFENDANT USED A WEAPON, EVEN A STRICKEN ENHANCEMENT CAN BECOME A STRIKE
GRAND THEFT “INVOLVING” A FIREARM IS A SERIOUS FELONY INCLUDES GRAND THEFT OF A FIREARM, THEREBY MAKING IT A STRIKE
A PLEA TO A FEDERAL BANK ROBBERY CONVICTION, WHERE THERE ARE TWO DISTINCT WAYS IN WHICH THE STATUTE CAN BE VIOLATED, AND IF PROVEN CONSTITUTE A SERIOUS FELONY, AND A STRIKE, IS INSUFFICIENT AS A MATTER OF LAW UNLESS THE EVIDENCE PRESENTED PROVES ONE OR BOTH OF THE TWO DISTINCT WAYS THE STATUTE CAN BE VIOLATED.
INSTRUCTION EQUATING PROXIMATE CAUSE WITH PERSONALLY INFLICTING GREAT BODILY INJURY WAS ERROR IN DETERMINING WHETHER AN OFFENSE IS A STRIKE
DOES THE TRIAL COURT, AS A MATTER OF LAW, DETERMINE IF AN OUT OF STATE PRIOR CONVICTION IS A SERIOUS OR VIOLENT FELONY
A PRIOR JUVENILE ADJUDICATION THAT IS NEITHER A SERIOUS NOR VIOLENT FELONY, BUT IS A 707 (b) OFFENSE, IS NOT A STRIKE
THE PROSECUTION AND NOT THE DEFENDANT HAS THE BURDEN OF PROOF THAT THE DEFENDANT PERSONALLY INFLICTED GREAT BODILY INJURY TO A PERSON, “OTHER THAN AN ACCOMPLICE” WITHIN THE MEANING OF SECTION 1192.7, SUBDIVISION (C)(8)
STRIKING A USE ENHANCEMENT AS PART OF A PREVIOUS PLEA BARGAIN DOES NOT PREVENT THE FACTS OF THAT CASE TO SHOW THAT THE DEFENDANT “PERSONALLY USED A FIREARM” WITHIN THE MEANING OF SECTION 1192.7, SUBDIVISION (C)(8); THEREFORE, A STRICKEN ALLEGATION CAN BECOME A STRIKE
RAPE IN CONCERT QUALIFIES AS A STRIKE EVEN THOUGH IT WAS NOT LISTED IN SECTION 1192.7 UNTIL AFTER JUNE 30, 1993
A DEFENDANT’S PRIOR CONVICTION FOR SECTION 288, SUBDIVISION (a), CONSTITUTES A PRIOR STRIKE
FAILURE TO OBTAIN A CERTIFICATE OF PROBABLE CAUSE TO CHALLENGE THE MAXIMUM SENTENCE IMPOSED BASED ON A PLEA AGREEMENT PRECLUDES A CONSTITUTIONAL CHALLENGE TO THE SENTENCE
A VIOLATION OF SECTION 243, SUBDIVISION (D) IS NOT A STRIKE AS IT CAN BE COMMITTED WITHOUT FORCE “LIKELY” TO PRODUCE GREAT BODILY INJURY
A THREE STRIKE DEFENDANT IS NOT PROHIBITED FROM ENTERING A DEFERRED ENTRY OF JUDGMENT PROGRAM
RETRIAL ON A PRIOR CAN BE BARRED POST-MONGE IF BASED ON DUE PROCESS AND/OR EQUAL PROTECTION, RES JUDICATA OR LAW OF THE CASE GROUNDS
DOES THE EXCEPTION MENTIONED IN FOOTNOTE 8 OF BENSON APPLY? AND WILL THE SUPREME COURT TAKE UP THIS ISSUE?
A HIT AND RUN ACCIDENT DOES NOT QUALIFY AS A SERIOUS FELONY OR A STRIKE UNLESS THE “RUNNING” ASPECT OF THE CRIME CAUSES THE GREAT BODILY INJURY
A DEFENDANT MAY NOT CHALLENGE HIS PLEA WHEN A SUBSEQUENT CASE FOUND THAT A PRIOR WAS NOT A STRIKE, THEREBY LOWERING THE MAXIMUM PENALTY FOR THE CURRENT OFFENSE
THE COURT CANNOT CONDITIONALLY DISMISS STRIKES
WHAT CAN THE DEFENDANT RAISE ON A LIMITED REMAND
A PRIOR CONVICTION IS A SERIOUS FELONY BASED ON WHETHER IT WAS A SERIOUS FELONY ON OR AFTER THE EFFECTIVE DATE OF PROPOSITION 21
ABATEMENT DOES NOT APPLY TO THE LOS ANGELES DISTRICT ATTORNEY’S POLICY ON CHARGING STRIKE CASES
A JUVENILE ADJUDICATION MAY NOT QUALIFY AS A STRIKE SINCE APPELLANT WAS NOT AFFORDED A JURY TRIAL
NOT ALL SECTION 245’S ARE SERIOUS FELONIES POST PROPOSITION 21
PRIOR CONVICTIONS FOR SECOND DEGREE RESIDENTIAL BURGLARY ARE SERIOUS FELONIES POST PROPOSITION 21
ATTEMPTED ROBBERIES ARE NOT VIOLENT FELONIES POST-PROPOSITION 21
WHEN A SUBSTANTIVE OFFENSE WHICH WOULD OTHERWISE BE PRIORABLE IS DISMISSED PURSUANT TO SECTION 1385, IT CANNOT BE USED AS A STRIKE IN A SUBSEQUENT PROCEEDING.
THE PROSECUTION CANNOT AMEND THE INFORMATION TO ADD STRIKES AFTER THE JURY HAS COMPLETED THE GUILT PHASE AND HAS BEEN DISCHARGED
THE COURT REFUSES TO APPLY THE PALERMO DOCTRINE, AND HOLDS THAT CRIMES WHICH ARE VIOLENT FELONIES AFTER PROPOSITION 21 ARE LIMITED TO 15% EVEN THOUGH SECTION 2933.1 WAS NOT AMENDED
THE SAME PRIOR CONVICTION CANNOT BE USED TO QUALIFY UNDER SECTION 667.61 AND UNDER THE THREE STRIKE LAW
THE JURY ONLY NEEDS TO DETERMINE IF THE DEFENDANT SUFFERED A PRIOR CONVICTION, AND A SEPARATE FINDING IS NOT REQUIRED FOR EACH ENHANCEMENT
ASSAULT WITH INTENT TO COMMIT LEWD ACTS ON A CHILD QUALIFIES AS A SERIOUS FELONY EVEN THOUGH NOT LISTED UNDER SECTION 1192.7
APPELLANT IS SENTENCED ON ALL COUNTS UNDER THE THREE STRIKES LAW EVEN THOUGH THE JURY ONLY FOUND, UNDER ONE COUNT THAT APPELLANT HAD BEEN CONVICTED OF A SERIOUS OR VIOLENT FELONY
SECTION 1192.7, SUBDIVISION (B)(28), A PROVISION PERTAINING TO CRIMINAL STREET GANG “ENHANCEMENTS” DOES NOT TRANSFORM THE UNDERLYING OFFENSE OF SECTIONS 12021, OR 12025 INTO SERIOUS FELONIES FOR PURPOSES OF A THREE-STRIKE SENTENCE OR SERIOUS FELONY ENHANCEMENT
UNDER PROPOSITION 21, THE DEFENDANT MAY HAVE A STRIKE WHEN THE DOCUMENTS DO NOT ESTABLISH THAT HE PERSONALLY USED A DANGEROUS OR DEADLY WEAPON IN COMMITTING AN ASSAULT WITH A DEADLY WEAPON
THE THREE STRIKES LAW TRUMPS THE CONTRACT CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS
A CRIMINAL OR TERRORIST THREAT WITHIN THE MEANING OF SECTION 422 IS A STRIKE EVEN IF COMMITTED PRIOR TO THE ENACTMENT OF PROPOSITION 21
ALL FELONY VIOLATIONS OF SECTION 136.1 ARE SERIOUS FELONIES
DEFENDANT’S SILENCE CAN ESTABLISH THE PRIOR AS A STRIKE
A CRIMINAL OR TERRORIST THREAT WITHIN THE MEANING OF SECTION 422 IS A SERIOUS FELONY WITHIN THE MEANING OF SECTION 667, SUBDIVISION (a)(1) EVEN IF COMMITTED PRIOR TO THE ENACTMENT OF PROPOSITION 21
THE STATUTE OF LIMITATIONS FOR AN OFFENSE SUBJECT TO THE THREE STRIKES LAW IS BASED ON THE OFFENSE ITSELF AND NOT THE SENTENCE ENHANCEMENT OF THE THREE STRIKES SENTENCE
A STRIKE ALLEGATION CAN BE ADDED BY ORAL AMENDMENT TO THE INFORMATION
A UTAH PRIOR FOR AGGRAVATED ROBBERY WAS INSUFFICIENTLY PROVEN TO HAVE THE SAME ELEMENTS AS A CALIFORNIA ROBBERY, AND COULD NOT BE IMPOSED AS A SERIOUS FELONY OR A STRIKE
A SERIOUS FELONY IS ADDED TO EACH COUNT IN A TWO STRIKE CASE, WHERE AT LEAST ONE OF THE COUNTS IS AN INDETERMINATE TERM DO TO APPELLANT’S RECIDIVISM
ISSUES DECIDED BY
THE UNITED STATES SUPREME COURT
1. CRUEL AND UNUSUAL PUNISHMENT
2. WHAT CAN THE COURT CONSIDER TO DETERMINE IF A PRIOR IS A SERIOUS OR VIOLENT FELONY
BY THE NINTH CIRCUIT COURT OF APPEAL
44. HABEAS CORPUS RELIEF NOT WARRANTED AS THERE IS NO DUE PROCESS VIOLATION FOR USE OF OUT-OF-STATE OFFENSE AS PREDICATE FOR APPLICATION OF THREE-STRIKE SENTENCE
2. APPELLANT HAS THE RIGHT TO TESTIFY AT A SENTENCING HEARING TO DETERMINE IF THE PRIOR CONVICTION IS A SERIOUS OR VIOLENT FELONY
3. APPELLANT’S 25 TO LIFE SENTENCE FOR STEALING A VCR, WITH TWO PRIOR SECOND DEGREE ROBBERIES, WITHOUT A WEAPON AND WITH MINIMAL FORCE, AND A 6 MONTH JAIL SENTENCE, AND NO OTHER FELONY CONVICTIONS, VIOLATED THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT
4. A NONJURY JUVENILE PRIOR CAN BE USED TO ENHANCE SENTENCE
5. THE REMEDY FOR INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO ADVISE THE DEFENDANT ABOUT A POTENTIAL THREE STRIKES CONSEQUENCE IS TO PUT THE PARTIES BACK TO THEIR POSITION PRIOR TO THE ERROR
6. WHERE THE PLEA AGREEMENT, PRIOR TO THE ENACTMENT OF THE THREE-STRIKES STATUTES, STATED THAT THE PRIORS WOULD ONLY BE COUNTED AS ONE CONVICTION, MUST BE UPHELD
7. NO ERROR OR INEFFECTIVE ASSISTANCE IN FAILING TO RECOMMEND THE DEFENDANT PLEAD TO A NON-THREE STRIKE SENTENCE WHEN THE BELIEF THAT THE DEFENDANT WAS NOT A THREE STRIKER WAS ERRONEOUS
BY THE CALIFORNIA SUPREME COURT
1. PENAL CODE SECTION 1385 ISSUES:
a. People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Footnote 13 is modified in 13 Cal.4th 1026a as follows:
A defendant serving a sentence under the Three Strikes law imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in furtherance of justice pursuant to section 1385(a), may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence.
In an opinion by Justice Werdeger, the court holds that a defendant serving a sentence under the three strikes law may file a writ of habeas corpus in the trial court to secure reconsideration of the sentence. Such a petition may be summarily denied if the record shows that the sentencing court was aware that it had discretion to strike prior felony conviction allegations and did not strike them, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations. (See fn. 13.)
As a result of the modified footnote 13, it is clear that there is no dual jurisdiction. When the matter is in the appellate courts, ask for a remand to the superior court for that court to make its discretionary determination under section 1385, subdivision (a). If appeal is no longer available (e.g., remittitur has issued, or the court has dismissed the appeal, see People v. Couch (1996) 48 Cal.App.4th 1053, [see # 14 (d) under plea bargain issues]), then the “Romero writ” should be filed in the superior court in the appropriate case. (See People v. Fuhrman (1997) 16 Cal.4th 930.) If you do not have a copy of the “Romero writ” that was prepared by this office, and you desire one, please call and it can be sent to you.
b. People v. Garcia (1999) 20 Cal.4th 490, the Supreme Court maintained its consistent set of rulings providing the trial court with the discretion to strike a strike. Here, the High Court stated that the trial court had the discretion to strike a strike as to other or subordinate counts while not striking the same strikes on the principle count. In other words, in a three strike case, if the court has the legal right to sentence the defendant to 100 plus years to life, based on four counts, but determines that the sentence would be sufficient if it imposed a 25 to life term, it now has the right to strike the strikes as to counts 2-4, but impose a three strike sentence as to count 1. This theoretically will give the defendant the chance of getting out of prison before the grim reaper takes him/her of natural or unnatural causes.
2. A BURGLARY, NOT LISTED WITHIN 1192.7, SUBD. (C)(18), CAN BE USED AS A STRIKE
a. People v. Cruz (1996) 13 Cal.4th 764. The supreme court in some tortured logic to dance around statutory interpretation concepts, finds that a house boat is a dwelling and is included as an inhabited vessel; therefore, a boat is a house for section 460 and 1192.7 purposes.
3. AMENDING THE INFORMATION TO ADD PRIORS AFTER DEFENDANT PLED
a. People v. Valladoli (1996) 13 Cal.4th 590. Post verdict amendment to the information is permitted before the jury is discharged to add a prior conviction.
4. OUT OF STATE PRIORS AND STRIKES AFTER THE INITIATIVE
a. People v. Hazelton (1996) 14 Cal.4th 101. Out-of-state priors qualify as strikes under both the statute and the initiative. All of the justices concurred in the aforementioned conclusion, but for differing reasons. The majority of justices reasoned that, given the ambiguity in the statute, they could look to the intent of the voters and other extrinsic material to reach the conclusion that out-of-state priors are admitted and qualify as strikes.
b. People v. Avery (2002) 27 Cal.4th 49, the California Supreme Court held that a Texas conviction for burglary qualified as a serious felony as the intent requirement was similar to that in California. The High Court stated that, even though larceny requires an intent to permanently deprive the owner of possession of the property, it is also satisfied if the property is taken temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment. The court specifically disapproved People v. Marquez (1993) 16 Cal.App.4th 115, to the extent that it is inconsistent with this holding. Finally, the court held that the rule of “lenity”, whereby courts must resolve doubts as to the meaning of a statute in a defendant’s favor, does not compel a different result.
5. THE TRIAL COURT HAS DISCRETION TO REDUCE A WOBBLER TO A MISDEMEANOR AND THE SCOPE OF DISCRETION IS NOT LIMITED TO A DEFENDANT’S BAD RECORD–OTHER FACTORS MUST BE CONSIDERED
a. People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968. The trial court has the power to reduce a wobbler to a misdemeanor if it is not merely to avoid a particular statutory scheme such as the minimum 25 to life term in the three strikes scheme. The trial court can take into account whether the defendant was: (1) cooperative with law enforcement, (2) his prior record, (3) public safety, (4) the age of the priors, (5) whether the priors involved violent conduct, (6) the defendant’s demeanor during trial, (7) and other mitigating factors particular to the defendant. The court explicitly indicated that they were not establishing a “floor” below which reviewing courts may never find an abuse of discretion. They also reiterated the age old precept that the Court of Appeal cannot merely reverse because it disagrees with the result of the trial court. The trial court’s determination must be irrational or arbitrary before the Court of Appeal is permitted to reverse a sentencing decision. The burden is on the appellant to clearly show that the trial court’s sentencing decision was not arbitrary nor capricious, but was an impartial discretion, guided and controlled by fixed legal principles and grounded by sound reasoned judgment. An appellate tribunal is not permitted to substitute its judgment for the judgment of the trial court. Therefore, in arguing this issue, present as much mitigation as humanly possible — let your mind wonder and be creative given the fact that the discretionary floor is not set by this case.
6. CONSECUTIVE SENTENCES ARE NOT MANDATED UNDER THE THREE STRIKES LAW WHEN A DEFENDANT ON PROBATION COMMITS A NEW OFFENSE AND IS SENTENCED FOR BOTH THE NEW OFFENSE AND THE ORIGINAL OFFENSE FOLLOWING THE REVOCATION OF PROBATION.
a. People v. Rosbury (1997) 15 Cal.4th 206. The Supreme Court reversed Second District, Division 5, and found that a defendant who was granted probation, was not “sentenced” within the technical meaning of the term, and as a result, he was not “serving a term” within the meaning of section 667, subdivision (c)(8). The High Court also indicated that the defendant had not suffered a “current conviction,” based on the probation violation for the “prior offense,” within the meaning of section 667, subdivision (c)(6), and therefore, consecutive sentences were not mandated. This is the first opinion where the High Court clearly indicates that a defendant is not “sentenced” until he has been delivered to the sheriff for delivery to state prison, and “likely not until the sheriff delivered him to prison.”
7. EX POST FACTO
a. People v. Helms (1997)15 Cal.4th 608, the High Court held that the ex post facto doctrine does not apply to a pre-strikes case wherein the punishment on the pre-strikes case does cause the punishment on the non-strikes case to be increased. Quite frankly, I find this to be a very confusing opinion from Justice Mosk.
8. THE THREE STRIKES LAW DOES NOT SUPERSEDE THE DEATH PENALTY LAW
a. People v. Samayoa (1997) 15 Cal.4th 795, the High Court held that, consistent with its previous ruling in People v. Alvarez (1996) 14 Cal.4th 155, and one from the Court of Appeal in People v. Williams (1995) 40 Cal.App.4th 446, 457-458, the death penalty law has not been superseded by the three-strikes law wherein the death penalty is not imposed and the provisions of section 667, subdivision (e) are imposed.
9. A FITNESS FINDING IS NOT REQUIRED FOR A JUVENILE ADJUDICATION TO QUALIFY AS A STRIKE
a. People v. Davis (1997) 15 Cal.4th 1096. The Supreme Court, in a 4-3 split, ruled that there does not have to be an express finding of fitness for a juvenile adjudication to qualify as a strike within the meaning of section 667, subdivision (d)(3)(C), it may be implied. The court specifically did not state what type of juvenile priors would qualify as strikes, leaving open the question of whether the felony must be within sections 1192.7, subdivision (c), 667.5, subdivision (c) or Welfare and Institutions Code section 707, subdivision (b). The noted exception between the code sections is that residential burglary is not a Welfare and Institutions Code section 707, subdivision (b) offense. This question was answered in People v. Garcia (1999) 21 Cal.4th 1; see infra # 22 this section.
The Supreme Court either dismissed or transferred the following cases back to the Court of Appeal in light of Davis: People v. Renko (1996) 44 Cal.App.4th 620; People v. Callahan (1996) 50 Cal.App.4th 1723: People v. Graham (1997) 53 Cal.App.4th 1288; People v. Venegas (1997) 47 Cal.App.4th 1605.
10. SERIOUS FELONY PRIORS ARE ADDED ON TOP OF THE DESIGNATED LIFE TERM IN A THREE STRIKES CASE
a. People v. Dotson (1997) 16 Cal.4th 547. In an unanimous opinion, the High Court ruled, wherein: (1) appellant was found guilty of one count of first degree burglary, (2) four serious felony prior conviction allegations were found true, and (3) where the sentence calculated under the (iii) provision of subdivision (e)(2)(A), was greater than 25 to life, the determinate term “enhancements” for the serious felony prior convictions, within the meaning of subdivision (a)(1) of section 667, are added to the minimum term under either subdivisions (i), (ii) or (iii). The court, despite the specific wording of the statute, basically found that it would not be fair for the appellant who has the more egregious prior history, to obtain a lesser sentence by not adding the enhancements to the (iii) term, when they are added to the (i) and (ii) calculation when either of those provisions is calculated to be the greatest term. Additionally, the Supreme Court simply adopted the prosecution’s analysis of our Jenkins argument, finding that the introductory language in section 667, subdivision (e), which indicates that “in addition to any other enhancements or punishments provisions that may apply”, is sufficiently distinguishable from the language in section 667.7, the statute which the Jenkins’ court decided that the enhancements were not added onto the minimum term. Therefore, that effectually puts an end to this issue. It is now formally considered dead.
11. MANDATORY CONSECUTIVE V. DISCRETIONARY CONCURRENT SENTENCES
a. People v. Hendrix (1997) 16 Cal.4th 508, held that the trial court has discretion to impose a concurrent sentence wherein the defendant has two or more prior felony convictions, and then commits serious or violent felonies against multiple victims on the same occasion. The court found that the language in section 667, subdivision (c)(6), which indicates that concurrent sentences can be imposed when the acts are based on “the same set of operative facts” and occur on the “same occasion”, is incorporated into subdivision (c)(7) by reference. The court found that the difference between subdivisions (c)(6) and (7) is that in subdivision (c)(7), the trial court must impose the sentences for these offenses which are not committed on the same occasion, consecutive to each other and “consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner proscribed by law.” (i.e., that would include a misdemeanor sentence.) The High Court rejected the prosecution’s contention that subdivision (c)(6) and (7) only apply to “two strike” cases. The court specifically did not address the meaning of “same set of operative facts” or “same occasion”. Additionally, Justice George noted that the majority opinion does not address the issue of whether section 654 applies, or whether the fact that the crimes were committed against multiple victims would not prohibit multiple punishment, even though the acts were committed on the same occasion and arose out of the same set of operative facts. These issues were answered in People v. Deloza (1998) 18 Cal.4th 585, infra, next.
b. People v. Deloza (1998) 18 Cal.4th 585. The High Court determined that the phrase “not committed on the same occasion”, as used in section 667, subdivisions (c)(6)(7), was given, as I had urged the court, the plain meaning, that is, a degree of temporal and spacial proximity to the current offenses. The court also found, as we stated in the briefing, and contrary to the position taken by the Court of Appeal opinions, that section 654 is totally inapplicable to the situation where multiple victims are involved. The court did not define the phrase “same set of operative facts”, which is answered in People v. Lawrence (2000) 24 Cal.4th 219, infra., next.
c. People v. Lawrence (2000) 24 Cal.4th 219, the California Supreme Court, in a vary narrow interpretation of the phrase “same set of operative facts”, essentially equated the “same occasion” rule it pronounced in People v. Deloza (1998) 18 Cal.4th 585, to the “same set of operative facts” test, to determine whether the trial court can impose other offenses concurrently rather than mandatorily consecutively within the meaning of section 667, subdivisions (c)(6) and (c)(7). Essentially, the majority stated that they did not believe the voters intended that the mandatory consecutive sentence provision not to apply to a situation wherein the crimes were perpetrated on different groups of victims merely because there was a flight from the initial crime scene, even though all the events took place within minutes of the other. The High Court indicated that there must be, similar to “same occasion” rule, the same concept of closeness in time and space for either prong to apply. The bottom line is, there is virtually no difference between, the “same occasion” rule and the “same set of operative” facts rule, even though the statute provides that the court can impose concurrent time if either of those factors can be proven.
12. BROUGHT AND TRIED SEPARATELY/RECIDIVIST ARGUMENTS
a. People v. Fuhrman (1997) 16 Cal.4th 930, held that even though all of the convictions which qualified as appellant’s strikes were brought and tried together, each of the convictions qualified as strikes. The court found that the brought and tried separately language is found exclusively in section 667, subdivision (a)(1) and not within subdivisions (b) through (i). That subdivision (a)(1) is not within the three-strikes law, and therefore it simply does not apply. The court never addressed the concept of sequential sentencing, nor the public policy briefing behind the habitual offender statutes that was briefed for the court. Simply this issue is now dead.
13. NO REMAND IN SILENT RECORD CASES
a. People v. Monge v. California
(1998) 524 U.S. 721, [141 L.Ed2d 615, 118 S.Ct. ]People v. Monge
(1997) 16 Cal.4th 826People v. Williams
(1998) 17 Cal.4th 148People v. Rodriguez
(1998) 17 Cal.4th 253People v. Woodell
(1998) 17 Cal.4th 448People v. Lloyd
(1998) 17 Cal.4th 658People v. Benson
(1998) 18 Cal.4th 24People v. Sanchez
(2001) 24 Cal.4th 938People v. Barella
(1999) 20 Cal.4th 261People v. Garcia
(1999) 21 Cal.4th 1People v. Jefferson
(1999) 21 Cal.4th 86People v. Nguyen
(1999) 21Cal.4th 197People v. Kelii
(1999) 21 Cal.4th 452People v. Thomas
(1999) 21 Cal.4th 1121People v. Martinez
(2000) 22 Cal.4th 106In re Cervera
(2001) 24 Cal.4th 1073People v. Tindall
(2000) 24 Cal.4th 767People v. Epps
(2001) 25 Cal.4th 19People v. Murphy
(2001) 25 Cal.4th 136People v. Hammer
(2003) 30 Cal.4th 756People v. Williams
(2001) 25 Cal.4th 411People v. Garcia
(2001) 25 Cal.4th 744People v. Buckhalter
(2001) 26 Cal.4th 20People v. Acosta
(2002) 20 Cal.4th 105 People v. Cornelius
(2002) 29 Cal.4th 105People v. Barragan
(2004) 32 Cal.4th 236People v. Laino
(2004) 32 Cal.4th 878In re Young
(2004) 32 Cal.4th 900 People v. Casper
(2004) 33 Cal.4th 1242 People v. Carmony
(2004) Cal.4th , reported on July 9, 2004 People v. Wallace
(2004) Cal.4th , reported on July 27, 2004People v. McKee
(1995) 36 Cal.App.4th 540 People v. Hill
(1995) 37 Cal.App.4th 220 People v. Dominguez
(1995) 38 Cal.App.4th 410 People v. Ruiz
(1996) 44 Cal.App.4th 1653 People v. Lopez
(1997) 60 Cal.App.4th 275 People v. Riggs
(2001) 86 Cal.App.4th 1126 People v. Moody
(2002) 96 Cal.App.4th 987People v. Ayers
(2004) Cal.App.4th , June 25, 2004 People v. Ramirez
(1995) 33 Cal.App.4th 559 People v. Jackson
(1995) 33 Cal.App.4th 1027 People v. Anderson
(1995) 35 Cal.App.4th 587 People v. Sipe
(1995) 36 Cal.App.4th 468 Hill (1995) 37 Cal.App.4th 220, once again the Third District follows the ruling in Sipe on the issue of “dual use.”
f. People v. Nobleton (1995) 38 Cal.App.4th 76. In this matter Division 5 follows its own lead from Ramirez, supra, and finds that there is not violation of “dual use” to (1) elevate a section 12021, subdivision (a) from a misdemeanor to a felony, (2) to enhance the offense pursuant to section 667.5, subdivision (b), and (3) to bring the matter within the sentencing provisions of section 667, subdivision (e)(1) (i.e., the two-strike provision). Once again, division 5 indicated that the new sentencing provisions are not enhancements (see also Ramirez, supra, Anderson, supra, and Loomis, supra). To arrive at this conclusion, the court adopts the holding of People v. Bruno (1987) 191 Cal.App.3rd 1102, and rejects People v. Darwin (1993) 12 Cal.App.4th 1101, which relied on People v. Edwards (1976) 18 Cal.3d 796, rejecting the notion that the prior can be used as an element of the offense and to enhance with the same prior.
g. concurred with the above cases, finding that the serious felony enhancement is added to the principle term, and there is no dual use violation, even when the same prior is used to find the strike prior and to enhance the term with an additional five years.
h. People v. Coronado (1995) 12 Cal.4th 145, the High court finally ruled in this “dual use” case. They found that it is just fine to use the same deuce conviction to elevate the misdemeanor to a felony and to add the section 667.5, subdivision (b) enhancement. The court specifically found that since not all deuce priors necessarily or commonly will result in a state prison commitment, there is no violation of dual use or section 654 in this case. They also found that a violation of a specific statute necessarily or commonly will result in a violation of a general statute when the elements are the same. Since not all deuce priors necessarily result in prison terms, the court found there was no problem to use both in this case. NOW USING THAT LOGIC, SHOULD WE NOT WIN IN STRIKE CASES WHEN THE USE OF A SECTION 667, SUBDIVISION (A) STRIKE PRIOR ACTS AS BOTH THE STRIKE AND TO ADD THE 5 YEAR YEARS TO THE SENTENCE? Answer, no; see People v. Dotson (1997) 16 Cal.4th 547.
The Supremes also disapproves People v. Hopkins (1985) 167 Cal.App.3d 110, and adopts the rationale of People v. Rodriguez (1988) 206 Cal.App.3d 517, finding that section 654 does not prohibit the use of a prison prior term enhancement; they specifically limit their opinion to this particular fact pattern, indicating that section 654 applies to facts, either an act or omission, where section 666 applies only to facts, not acts, and that it relates to the status of the recidivist who engaged in criminal conduct, not the conduct itself. Therefore, because the repeat offender enhancement imposed does not implicate multiple punishment or an act or omission, section 654 is inapplicable.
i. People v. Baird (1995) 12 Cal.4th 126, the High court ruled that there is no violation of “dual use” to use a single felony to elevate a section 12021 (ex-con with a gun) violation to a felony and to enhance the sentence with a prison prior. HOWEVER, the court indicated that the same CONVICTION CANNOT be used for both purposes. Nonetheless, in this case, the prison time that appellate did is what triggered the enhancement, not the conviction on the current case.
j. People v. Nelson (1996) 42 Cal.App.4th 131, Second District, Division 4, follows the lead of all of the other cases indicating that there is no dual use problem.
k. People v. Purata (1996) 42 Cal.App.4th 489, Fourth District, Division 1, follows the lead of all of the other cases indicating that there is no dual use problem even though the court “must impose a consecutive five year term for each such prior conviction.”
l. People v. Cressy (1996) 47 Cal.App.4th 981, the First District Court of Appeal, Division 3, held that the court can add a one year prison prior (§ 667.5, subd. (b)) to a two strike case without there being a violation of dual use. The court found that there was no violation of dual use under Jones, Baird, or Coronado, given the facts of this case. Here, appellant was convicted of a non-serious felony. The court also stressed that the defendant’s prior felony conviction would have brought him within the three strikes scheme whether or not defendant had been imprisoned for that conviction. The fact of imprisonment is a distinct factor properly supporting the enhancement.
m. People v. White Eagle (1996) 48 Cal.App.4th 1511, the Fifth District permits the use of a prior petty theft for three separate purposes: (1) to elevate the misdemeanor to a felony, (2) to double under three strikes, and to add a one year prison prior under section 667.5, subdivision (b). The court does effectively address the Jones/Prather argument by indicating that the legislature laid out it clear intent that both the enhancement within the meaning of section 667.5, subdivision (b) and the elevation from a misdemeanor petty theft to a felony, should apply, thereby effectively circumventing the aforementioned arguments. Additionally, Edwards is distinguished given the fact that the prior prison term is not an element of the offense of section 666.
One of the real problems with this case is the fact that the court does not remand for re-sentencing; in fact, it orders the preparation of a new abstract, adding the one year, and that is to be sent to the Department of Corrections. This should be resisted at all costs. The trial court still could decide to strike the prior prison term under section 1170.1, subdivision (h), and it should be given that opportunity.
As an adjunct to that argument, the Court of Appeal held that the double jeopardy clause and the holding of Missouri v. Hunter (1983) 459 U.S. 359, 366, does not apply, given the fact that the legislature authorized multiple punishment, which is what Hunter expressly stated the legislature must do to be constitutionally valid. (See also Moore v. Missouri (1895) 159 U.S. 673, 677.)
n. People v. Yarborough (1996) 65 Cal.App.4th 1417, the Fifth District held that there was not a dual use violation within the meaning of People v. Edwards (1976) 18 Cal.3d 796. In Edwards, the Supreme Court stated that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction. Edwards had a prior conviction for selling marijuana, and a new conviction for possession of a weapon by an ex-con. The possession of a weapon would other wise be noncriminal but for the prior conviction. Here, the court states that appellant’s current conviction for failing to register, based upon the prior conviction for a sexual assault, was not noncriminal and therefore distinguished Edwards. However, one could argue that but for the prior sexual assault conviction, Yarborough would not have had to register, and therefore, the rule in Edwards should still apply. We will see if the Supreme Court grants review to clarify Edwards, at least within this context.
o. People v. Tillman (1999) 73 Cal.App.4th 770, First Appellate District, Division 2 held that the use of a prior offense to justify an element of the offense for failing to register, and to double the current offense, may be dual use, but the intent of the legislature in enacting the three strikes legislation is a clear expression that it intended to eliminate the rule set forth in People v. Edwards (1976) 18 Cal.3d 796. Edwards had stated that a single fact cannot be used to establish an element of an offense and to enhance a sentence. The Court of Appeal goes through the history of Edwards, setting aside those cases such as People v. Yarborough (1996) 65 Cal.App.4th 1417, as finding distinction without a difference from Edwards. To that end, the case has some very good language, Justice Kline however comes to the same conclusion as the prior cases, that dual use is not precluded, but this time based on the intent of the legislature not to follow Edwards.
3. EX POST FACTO APPLICATION:
a. People v. Hatcher (1995) 33 Cal.App.4th 1526. Ex post facto principles are not violated by the enhancing use of prior convictions pre-dating the enactment of the three strikes law.
b. People v. Tran DEPUBLISHED 99 LOS ANGELES DAILY JOURNAL D.A.R. 2563; (1998) 67 Cal.App.4th 1320, the Third District also held that there is a violation of both the federal and state ex post facto clause prohibitions when a restitution fine is imposed within the meaning of section 1202.45, if the crimes were committed be fore the effective date of the statute August 3, 1995 – these crimes were committed before that period, therefore a violation since a restitution fine is a form of punishment. The Court of Appeal distinguished People v. McVickers (1992) 4 Cal.4th 81, which held that a statute requiring an AIDS blood test for certain convictions did not violate ex post facto principles, and served a legitimate governmental interest. The Tran court also found that it mattered little that the restitution fine had been stayed.
4. THE MARCH 7, 1994 ARGUMENT:
a. People v. Reed (1995) 33 Cal.App.4th 1608. A prior conviction need not post-date the enactment of the three strikes law in order to qualify as a strike.
b. People v. Green (1995) 36 Cal.App.4th 280. The Second District, Division Two follows the lead of Reed, indicating that the intent of the legislature would be frustrated if section 667, subdivision (d)(1) were only given prospective rather than retroactive application. There is no discussion of section 3 which mandates a prospective application unless specifically expressed.
Additionally, Green can be interpreted to limit serious or violent felonies to those which were classified as such at the time of the prior conviction. In other words, if the conviction for the felony occurred prior to the enactment of sections 667.5 or 1192.7, then one can argue that it cannot be classified a serious or violent felony now.
c. People v. Hill (1995) 37 Cal.App.4th 220, follows their opinion in Sipe, rejecting the upon the date of challenge one more time. The clearly hold that the use of a former conviction is not a direct consequence of that conviction, and therefore a prior advisement is unnecessary. (See People v. Bernal (1994) 22 Cal.App.4th 1455, 1457.)
e. Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, follows the same train of thought as did Reed, Green, Sipe, and Hill, wherein the court’s have all uniformly rejected the argument that the legislation should apply prospectively and not retroactively. Gonzales summarizes the other cases, and once again comes to the conclusion that the intent of the statute would be frustrated unless it would apply immediately. They indicated that to give the statute prospective application would defeat the purpose of the urgency legislation.
f. People v. Allen (1995) 39 Cal.App.4th 1513, Division 4 of the Second Appellate District follows Reed, Anderson, Green, and Gonzales in rejecting the March 7th argument.
g. People v. Jones (1995) 40 Cal.App.4th 630, First District Division Four followed the other cases and rejected the March 7th argument.
h. People v. Ingram (1995) 40 Cal.App.4th 1397, the Fifth Appellate District, came to the same conclusion as all their other brethren who have decided this issue. I pronounce this issue DEAD.
i. People v. Kinsey (1995) 40 Cal.App.4th 1627, in another Fred Wood’s opinion, concurs with the holding in all of the aforementioned cases, rejecting the argument. THEREFORE THIS ARGUMENT STAYS DEAD.
5. PRIORS COMMITTED BEFORE 1982 AND/OR 1977
a. People v. People v. Turner
(1995) 40 Cal.App.4th 733 People v. Moenius
(1997) 60 Cal.App.4th 820 People v. O’Roark
(1998) 63 Cal.App.4th 872 People v. Brady
(1995) 34 Cal.App.4th 65 People v. Williams
(1996) 49 Cal.App.4th 1632 People v. Culpepper
(1995) 32 Cal.App.4th 237 People v. McCain
(1995) 36 Cal.App.4th 817Sipe (1995) 36 Cal.App.4th 468. Sipe also rejects equal protection challenges to limiting credits to 20% pursuant to People v. Jenkins (1995) 10 Cal.4th 234, 248, fn. 8. The same challenge, based on equal protection, is also denied in People v. Hill, infra.
f. People v. People v. Applin
(1995) 40 Cal.App.4th 404People v. Hamilton
(1995) 40 Cal.App.4th 1615People v. Spears
(1995) 40 Cal.App.4th 1683People v. Caceres
(1997) 52 Cal.App.4th 106People v. Cortez
(1997) 55 Cal.App.4th 426People v. Keelen
(1998) 62 Cal.App.4th 813People v. Honea
(1997) 57 Cal.App.4th 842People v. Henson
(1997) 57 Cal.App.4th 1380People v. Thornburg
(1998) 65 Cal.App.4th 1173People v. Myers
(1999) 69 Cal.App.4th 305People v. Mack
(2002) 97 Cal.App.4th 1010People v. Superior Court (Perez)
(1995) 38 Cal.App.4th 347People v. Vessell
(1995) 36 Cal.App.4th 285People v. Trausch
(1995) 36 Cal.App.4th 1239People v. Dent
(1995) 38 Cal.App.4th 1726People v. Carranza
(1996) 51 Cal.App.4th 528People v. Glee
(2000) 82 Cal.App.4th 99People v. Jenkins
(1995) 10 Cal.4th 234People v. Cartwright
(1995) 39 Cal.App.4th 1123Ingram (1995) 40 Cal.App.4th 1397, the Fifth Appellate District, came to the same conclusion as their brethren in Cartwright and Turner, that the serious felony priors are added to the minimum term. This conclusion was upheld in Dotson, supra, wherein the High Court also found that the serious felony priors are also added to the minimum term, and specifically overrules Ingram on this point.
d. People v. Rucker (1995) 41 Cal.App.4th 236. DEPUBLISHED. In another opinion by Justice Woods from division 7, the court finds that the serious felony priors must be added to the minimum term. The court then went on to use the “two strike” cases to justify its ruling.
e. People v. Samuels (1996) 42 Cal.App.4th 1022, Second District, Division 1, follows the lead of Carter, supra, and Ingram, finding that consecutive terms are calculated per count, and that there is no impediment to adding enhancements on top of the life term. The imposition of the serious felony enhancements on top of the life term is now a dead issue, as it has been answered in the affirmative in Dotson, supra.
f. People v. Hayes (1996) 44 Cal.App.4th 1238. DEPUBLISHED. Second District, Division 7, followed the lead of the aforementioned cases and find that the court’s failure to impose the 2 section 667, subdivision (a)(1) prior serious felony convictions amounted to an unauthorized sentence; as a result, the court ordered the 10 years added onto the sentence previously imposed.
g. People v. Ayon (1996) 46 Cal.App.4th 385, Fourth District, Division 1 ruled that when using the (iii) formula for calculating the third strike sentence, you do not compute the sentence by aggregating the multiple counts as you would with standard section 1170.1 sentencing, rather each count is calculated separately including adding the enhancements onto the substantive counts. The opinion states that the statute does not suggest that the counts should be combined and then the calculation tabulated. However, as previously discussed, since the two strike cases such as Ramirez, Anderson and the like indicate that the subordinate counts are computed by using the one third the mid-term formula (i.e., the language in (e)(1)), therefore aggregating the sentence, and the statute uses the same language in (e)(2)(A)(i) as in (e)(1), then aggregate sentencing must be used in both (e)(2)(A)(I) and (e)(1). Given the fact that it only makes sense to compare like computations, (iii) must be tabulated in the same manner, using section 1170.1 aggregate sentencing principles.
Appellant argued that if the calculation were to be made on a count by count basis, (i) and (iii) would virtually never be used, the default of (ii) would be used for each count, therefore (i) and (iii) would become a nullity, which, as we know, violates all the rules of statutory construction. The court cites a few instances wherein the (i) sentence would exceed 25 years (e.g., §§ 215, 208, 288.5). However, I would not give up on this aspect of the argument given the limited application of this argument.
h. People v. Randall REHEARING GRANTED AND THEN DISMISSED AFTER REHEARING; (1996) 50 Cal.App.4th 144, the Sixth Appellate District held that section 667, subdivision (a), 5 year priors, must be added to each count when determining the minimum term under the three strike (iii) formula. The court distinguishes People v. Tassell (1984) 36 Cal.3d 77, stating that it applies to a different statutory scheme.
i. People v. Wynder (1996) 51 Cal.App.4th 1062, the Second Appellate District, Division 2, ruled that the serious felony allegations pursuant to section 667, subdivision (a) must be served prior to the minimum term which is calculated to the greater of the term under subdivisions (e)(2)(A) (i-iii). The court reasoned that the legislature intended that the prefatory language, “in addition to any other term” can only mean that the serious felony allegations must be added to the minimum term. They use section 669 to bolster this analysis. However, they do not take into account the fact that section 669 does not mandate a consecutive term even on a life sentence.
j. People v. Mines DEPUBLISHED (1997) 55 Cal.App.4th 698, Second Appellate District, Division 2, ruled that it was not error for the trial court to add an enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a) to the minimum term of 25 to life. The court had rejected our Jenkins analysis. Therefore, post-Dotson, this issue seems dead.
k. People v. Thomas (1997) 56 Cal.App.4th 396, Second Appellate District, Division 7, ruled that when calculating an indeterminate life sentence, in a multiple count case, each count is individually calculated to determine if it is greater or less than 25 years to life. The court specifically rejects our argument that the language from subdivision (e)(1), of section 667, “the term otherwise provided as punishment” means that the calculation under subdivision (e)(2)(A)(i), which uses the same language must be calculated in the same “aggregate” manner. The court ruled that the above quoted phrase means that the court is to calculate the sentence using the lower, middle or upper term; it does not mean that the consecutive sentencing calculations are done pursuant to section 1170.1 terms as they are in the two strike calculations. (See People v. Ingram (1995) 40 Cal.App.4th 1397, 1407.) In spite of this conclusion drawn by Justice Johnson, I would continue to raise this issue until the Supreme Court rules against us. The statutory construction argument in this opinion is somewhat weak and may be subject to Supreme Court review in the future.
l. People v. People v. Garcia
(1997) 59 Cal.App.4th 834People v. Bolden
(1999) 71 Cal.App.4th 730People v. Mendoza
(2000) 78 Cal.App.4th 918People v. Dozier
(2000) 78 Cal.App.4th 1195People v. Byrd
(2001) 89 Cal.App.4th 1373People v. Coker
(2004) Cal.App.4th , reported on July 13, 2004People v. Carter
(1995) 41 Cal.App.4th 683People v. Miles
(1996) 43 Cal.App.4th 364People v. Dominguez
(1996) 44 Cal.App.4th 389People v. Davis
(1996) 48 Cal.App.4th 1105People v. Randall
(1996) 50 Cal.App.4th 144People v. Roberts
(1997) 55 Cal.App.4th 1073People v. Newsome
(1997) 57 Cal.App.4th 902People v. Bell
(1998) 61 Cal.App.4th 282People v. Hall
(1998) 67 Cal.App.4th 128People v. Jones
(1998) 67 Cal.App.4th 742People v. Durant
(1999) 68 Cal.App.4th 1393People v. Danowski
(1999) 74 Cal.App.4th 815People v. Mitchell
(2000) 82 Cal.App.4th 55People v. Jeffries
(2000) 83 Cal.App.4th 15People v. Riggs
(2000) 85 Cal.App.4th 327People v. Jenkins
(2001) 86 Cal.App.4th 699People v. Coelho
(2001) 89 Cal.App.4th 861People v. Metcalf
(1996) 47 Cal.App.4th 248People v. Sotomayor
(1996) 47 Cal.App.4th 382People v. Gutierrez
(1996) 48 Cal.App.4th 1894People v. Askey
(1996) 49 Cal.App.4th 381People v. Carter
(1996) 49 Cal.App.4th 567People v. Alvarez
(1996) 49 Cal.App.4th 679White Eagle (1996) 48 Cal.App.4th 1511, the Fifth District held that in a “silent record” case, the appellate court cannot determine the sentencing court misunderstood its authority or direction, and since every presumption is used to uphold a judgment, and the burden is on the defendant to demonstrate error — it will not be presumed — they find no error and refuse to remand. Therefore, use the Alvarez result, and file the Romero writ in the Superior Court.
h. People v. Cunningham (1996) 49 Cal.App.4th 1044, the Third District held that when a defendant stipulates to a plea bargain with the prosecution, he cannot later ask the court to strike a strike per Romero. The court finds that the prosecution is entitled to the benefit of the bargain, and once the court agrees to take the plea, it lacks jurisdiction to alter it, unless the parties agree to a change. I believe that this is a faulty opinion. Everyone was under the impression that the court was mandated to double the term agreed to. Given the fact that the prosecution and the court believed that the term must be doubled, the defendant should, at a minimum be able to withdraw his plea, and start from scratch. That may have other negative consequences, but it should be the defendant’s option.
i. People v. DeGuzman (1996) 49 Cal.App.4th 1049, the First District, Division One, held that it would not remand the matter back to the trial court to consider a Romero issue, on a silent record case, where it would be an abuse of discretion to strike the prior under any circumstance. Here, appellant’s record was abysmal, which included a long juvenile record from the age of nine years old. I would merely try and distinguish this one away on its facts when it is used against you.
j. People v. Cepeda (1996) 49 Cal.App.4th 1235, the Second District, Division Seven, held that it would remand the matter back to the trial court so that it could state for the record, and in the minute order, its reason for dismissing two strike priors. Pursuant to a plea bargain, and with the prosecutor’s concurrence, the court struck two serious felonies, and then sentenced appellant as a two striker. The Court of Appeal found that appellant does not now have the right to have the trial court, on Romero remand, determine whether it would strike the remaining strike. The court indicated that since appellant pled for a specified sentence, it was now precluded from asking for a further review of his sentence. (People v. Walker (1991) 54 Cal.3d 1013, 1024; People v. Panizzon (1996) 13 Cal.4th 68, 80.) The court found that the trial court is not inclined to find error even if the court acted in excess of jurisdiction, as long as the court did not lack fundamental jurisdiction. Whether appellant would have been better off is not the issue, or even if the court will strike another strike; the issue is does the court have a right to consider striking another strike — answer yes.
k. People v. Smith (1997) 59 Cal.App.4th 46, First Appellate District, Division 2, held that a new sentencing hearing is required when the court believed that it had no discretion to strike a strike, even though appellant was sentenced pursuant to a plea bargain. The court’s opinion can be considered contra to the holdings in Couch, Cunningham, and Cepeda, which found that an appellant was estopped from asking the court to strike a strike when the sentence was pursuant to a negotiated disposition. In the aforementioned cases, the defendant bargained for a “specified sentence”, while in this matter, the plea contemplated a range of sentencing. In the aforementioned cases, the specified sentence is what the prosecution and the defendant bargained for, and as a result, to permit the court to then exercise its discretion to strike a strike would have given appellant an unfair benefit. Nonetheless, in this case, since appellant was not given a specified sentence, the court was not precluded from striking a strike. Given the fact that this was a pre-Romero case, where the court indicated that it did not believe that it could strike a strike, the matter was remanded for the court to make the appropriate determination.
l. People v. Taylor (1998) 63 Cal.App.4th 29, the Second Appellate District, Division 7 held that, pursuant to People v. Fuhrman (1997) 16 Cal.4th 930, 945, on a silent record, the proper procedure for the review of a request to strike a strike, is for the defendant to file a writ of habeas corpus, and not a remand to the superior court with an order for a new sentencing hearing. Here, the trial court merely denied the prior request to strike the strike without giving any reasons. The Court of Appeal also indicated that appellant is not precluded from filing a writ even though a “plea bargain” of sorts had been entered into before the bifurcated trial on the enhancements and the strike priors. Appellant plead to 2 strike priors and the prosecutor struck four serious felony enhancements and prison priors, saving defendant 21 years. The Court of Appeal distinguished its own case of People v. Cepeda (1996) 49 Cal.App.4th 1235, which had precluded the motion to strike because a plea bargain, which struck a strike, and made Cepeda a “two-striker” rather than a “three-striker”, was fundamentally different than the appellant’s predicament in this matter. Here, appellant was still a “three-striker”, subject to a life sentence, where in Cepeda, the defendant was not. The court did state that if the court was inclined to strike 3 strikes and make the defendant a “two-striker”, then the prosecution would have the option of proving the serious felony priors and the prison prior that had previously been dismissed pursuant to the bargain.
m. People v. Allan (1996) 49 Cal.App.4th 1507, the Second District, Division Four, held that the court cannot enter into a “plea bargain” with the defendant as it is a violation of the strike law and of People v. Orin (1975) 13 Cal.3d 497. Additionally, the Court of Appeal ruled that the trial court could not dismiss a strike prior, in the master calendar court, even after the people had announced ready, and indicated that they did not have the proof of the prior at that time, but they indicated that they would have it latter in the day. Citing People v. Ferguson (1990) 218 Cal.App.3d 1173, the Court of Appeal found that the trial court abused its discretion in striking the strike prior, at that time, since the interests of society was not considered, and that a reasonable judge would not have done the same thing. Given the fact that (1) the defendant had received prior continuances, (2) that the trial on the priors is usually bifurcated, (3) that the matter had not yet been assigned to a trial court, and (4) the people would have the priors packet in time for the presentation at the trial and objected to the dismissal of the prior, the court found that there was an abuse of discretion to enter into a plea bargain and to dismiss the prior in the manner described. Just factually argue this one away. No real new big news here, just another application of an abuse of discretion.
n. People v. Davis (1996) 50 Cal.App.4th 168, the First District, Division Four, held that in a “silent record” case appellant has not met his burden of proof to establish that the court misunderstood its sentencing discretion; therefore, remand is not required. Once again Romero’s footnote 13 does not set out this requirement as a necessity before the matter should be remanded to the trial court; the opinion merely indicates the 2 exceptions which will allow the court to deny either a remand or the granting of a hearing on the court’s exercise of its discretion.
o. People v. Smith (1996) 50 Cal.App.4th 1194, Fourth District, Division One, held that a court’s antipathy for the strikes law is not a valid reason for striking a strike. It therefore sent the matter back to the trial court in order for the court to state valid reasons for striking the strikes. Furthermore, the court held that People v. Scott (1994) 9 Cal.4th 331, did not preclude the prosecutor from raising the abuse of discretion issue for the first time on appeal. HOWEVER, THIS CASE SHOULD BE REVIEWED IN LIGHT OF PEOPLE V. TILLMAN (2000) 22 CAL.4TH 300.
p. People v. Kelley (1997) 52 Cal.App.4th 568, Fourth Appellate District, Division 3, ruled that where the record did not indicate whether it would strike a prior to ameliorate the prison sentence, a remand is required. Since the court clearly did not indicate that it would not have exercised its discretion, then remand is proper.
q. People v. Mosley (1997) 53 Cal.App.4th 489, Second Appellate District, Division 5, ruled that appellant is not entitled to a Romero remand, as the trial court ruled on the issue 53 days after the Supreme Court issued the Romero decision. As a result, relying on an interpretation of Tenorio, the Court of Appeal found that the trial court was presumed to have known the applicable law at the time of its ruling, (see Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443), and therefore, footnote 13 of Romero did not apply. The court did not address the issue of the Supreme Court’s modifying of its opinion and its effect on the trial court’s decision. The Court of Appeal did state that if, (1) it can be shown that the trial court was not aware of its decision after Romero was filed, or (2) the court refused to follow Romero after the filing of Romero on June 12, 1996, because the decision was not yet final, then footnote 13 would still mandate a remand for re-sentencing.
r. In re Iveys (1997) 54 Cal.App.4th 1288, Second Appellate District, Division 5, ruled that a defense request for the trial court to strike a strike on its own motion, prior to or at the time of the probation and sentencing hearing, is not a prerequisite to seeking habeas corpus relief under Romero. (See People v. Sotomayor (1996) 47 Cal.App.4th 382, 391.)
s. People v. McLeod (1997) 55 Cal.App.4th 1205, Fourth Appellate District, Division 1, ruled that, in this silent record case, the record does affirmatively show that the court would not have exercised its discretion had it understood its sentencing power. The Court of Appeal comes to this conclusion based on how the trial court did sentence appellant. It found that circumstances in aggravation outweighed those in mitigation, and the court imposed the middle term rather than the low term for the current offense. It then imposed a one year prison prior, and there was no dispute that the court knew that it could strike the prison prior. The court did go into defendant’s background after his mother’s plea for leniency and on balance found that a remand was not called for. The Court of Appeal did not preclude a Romero writ, if counsel could point to facts outside the record which would justify review.
t. People v. Bishop (1997) 56 Cal.App.4th 1245, Second Appellate District, Division 1, the court, primarily guided by People v. Superior Court (Alvarez), supra, a defendant’s individualized considerations and his background must be taken into consideration when it is determining if it should strike a strike. The trial court struck two strikes, and the prosecution, on appeal contended that the court erred because the reasons did not outweigh the aggravating factors. The Court of Appeal acknowledged that appellant was not “a worthy member of society”, but found that the court did not abuse its discretion in striking the strikes after it considered appellant’s age, the remoteness of the priors, and the pettiness of the current offense. The court conceded that all three strike appellant’s are generally not good persons, but the court can weigh all factors in determining to strike a strike based on individualized considerations. Additionally, the court did use the aggravating factors to sentence appellant to the upper term on the current offense. This is a very good case, along with Alvarez, to use to justify a remand when the court did not use the individualized sentencing factors in ruling on the strike issue.
u. In re Saldana (1997) 57 Cal.App.4th 620, Second Appellate District, Division 5, in one portion of the opinion that the trial court must base its decision to strike a strike on a multitude of individualized sentencing factors, and not merely on appellant’s criminal record. Given the fact that the trial court was not presented with all mitigation the first time, nor was it presented to the Court of Appeal, appellant was not bound by the law of the case. The Court of Appeal found that considering only a defendant’s criminal history is “incompatible with the very nature of sentencing decision; the entire picture must remained exposed.” This is another in a series of cases which established that individualized sentencing criteria must be used. Combine this case and the concepts of People v. Bishop, supra, 56 Cal.App.4th 1245, which indicate that all three strike defendant’s have bad records, but alone should not preclude the court from striking a strike based on the mitigating factors presented, People v. Banks (1997) 59 Cal.App.4th 20, and even People v. Williams (1997) 17 Cal.4th 148 to establish that the trial court must consider whether appellant’s background, current felony offense, character and other individualized considerations should be deemed inside or out of the “spirit” of the three strikes law.
v. People v. Humphrey (1997) 58 Cal.App.4th 809, Second Appellate District, Division 6, held that, the matter must be remanded for the court to state its reasons for striking the strike on the record. (See People v. Orin (1975) 13 Cal.3d 937, 944.) The Court of Appeal also held that, if the “sole” reason that the court was striking the prior was its remoteness, in this case 20 years old, and the defendant had led a “continuous life of crime in the interim”, then remoteness, in and of itself, was an insufficient reason to strike the strike.
w. People v. Banks (1997) 59 Cal.App.4th 20, Second Appellate District, Division 7, held that, the matter must be remanded for the trial court for re-sentencing, with appellant being present and represented by counsel, given the fact that the court denied the section 1385 motion prior to the Romero decision. The Court of Appeal specifically stated that it would not presently rule on whether the trial court would have abused its discretion had it stricken a strike since the only statement made by the trial court when the request was first made, was that it had no power to strike a strike. The Court of Appeal declined to supplant its own view for the trial court’s, and declined to prejudge the matter. Furthermore, the Court of Appeal laid out further parameters for the trial court to consider when it was making the determination on remand whether one or more strikes should be dismissed. Those factors are as follows: (1) the circumstances of the instant offenses, (2) the absence of violence or threat of violence, (3) defendant’s age, (4) the nature of appellant’s previous offenses, (5) appellant’s willingness to undergo psychotherapy and drug counseling, (6) appellant’s computer skills, and (7) all other relevant considerations that would justify dismissal of one or more strikes.
x. People v. Lee (1997) DEPUBLISHED 59 Cal.App.4th 348, Second Appellate District, Division 4, held that, no hearing is required, nor is the defendant required to be present, following a “remand”. This case was in direct conflict with Rodriguez, and therefore — depublication.
y. People v. People v. Superior Court (Pipkin)
(1997) 59 Cal.App.4th 1470People v. Gillispie
(1997) 60 Cal.App.4th 429People v. Benevides
(1998) 64 Cal.App.4th 728Myers (1999) 69 Cal.App.4th 305, Second District, Division 4 held that a defendant does have a right to appeal a trial court’s denial of a Romero motion when he or she argues that the court abused its discretion in denying the request to strike the strike. The opinion mentions Benevides (OVERRULED IN PEOPLE V. CARMONY, SUPRA), tries to reconcile it based on the modification in footnote 6 of that opinion, but clearly indicates that this division will continue to rule on an appellant’s challenges, on appeal, to the lower court’s ruling on this issue. In this case, the court did not find that the trial court abused its discretion in denying the Romero motion, in that the trial court indicated that it had considered the sentencing memorandum which was prepared by the defense, including the circumstances of the current offense, and that it did not involve violence. The Court of Appeal holds that the trial court is presumed to have considered all relevant factors in the absence of an affirmative record to the contrary.(People v. Kelly (1997) 52 Cal.App.4th 568, 582.) The fact that the court focused on the violence of appellant’s prior, does not mean that those were the only factors considered.
dd. People v. Superior Court (Roam) (1999) 69Cal.App.4th 1220, Sixth District, held that the prosecution could writ the trial court’s decision to continue a sentencing in order to get a report back from a diversion release program, before it made the decision whether to strike a strike within the meaning of Romero. The Court of Appeal acknowledged that the trial court could strike one or all strikes and then sentence appellant within the bounds of Romero and Williams and their progeny. But the Court of Appeal held that the court must bury its head in the sand and not wait for the report to come back from the OR release program. The defendant had been released on a supervised OR to Delancey Street rehabilitation program. The trial court wanted to get the report from the program before making its Romero decision. The Court of Appeal indicated that there were no valid procedures for waiting, and that once the probation report was back it had to sentence appellant and address any motion before the court. The defendant in this case did not help the situation by leaving Delancey, and was then arrested in Arkansas. He is presently in San Quentin prison. If the court wants to make an “informed decision” for Romero purposes, and it wants to state the appropriate reasons on the record for doing so, it should be able to continue sentencing to give the individualized sentence discussed in virtually all of the cases. This case should be challenged based on the aforementioned rationale.
ee. People v. Barrera (1999) 70 Cal.App.4th 541, Second District, Division 2, held that, based on People v. Gillispie, supra, 60 Cal.App.4th 429, 433-343, the Court of Appeal will hear the defendant’s appeal of a denial of a Romero motion. (See footnote 7.) Additionally, the Court of Appeal held that, do to appellant’s long criminal history, his failure on probation numerous times, his inability to complete a drug program, and the fact that the trial court considered all of the proper individual criteria and sentencing objectives, it did not abuse its discretion in failing to strike a strike. (See People v. Superior Court (Alvarez), supra, 14 Cal.4th 868-977-978.)
ff. People v. Barron DEPUBLISHED (1999) 71 Cal.App.4th 1103, the Second Appellate District, Division 5 held that the trial court’s failure to state reasons for striking a strike is not an unauthorized sentence. Therefore, the prosecution cannot raise it as part of a defendant’s appeal. They must raise it either by way of their own direct appeal, or by way of writ of mandate. As Justice Turner points out, the trial court did err by failing to state the reasons for granting the section 1385 relief, or by failing to direct the clerk to place the reasons for striking the prior in the minute order; but that in and of itself is not an unauthorized or jurisdictionally void sentence. Here, the court did not do anything that it did not have the legal right to do. (See People v. Scott (1994) 9 Cal.4th 331, 354.) Note however, that Justice Turner does tell the prosecution how to remedy their problem. He invites them to file a writ of mandate, and so long as laches or prejudice is not controlling they can challenge the lower court’s opinion for failure to state reasons. Additionally, the opinion notes that if a proper notice of appeal had been filed, it was proper within section 1328, subdivision (a)(10).
gg. People v. Gaston (1999) 74 Cal.App.4th 310, the Second District Court of Appeal, Division 4, held that the lower court abused its discretion in striking a strike when it did not first consider the “spirit” of the Three Strikes law. The court held that a persons drug dependency, his diabetic condition, nor his age were mitigating factors that warrant justifying a strike. It also found that the defendant never tried to make any attempts to cure his drug dependency and that his history of criminal offenses was virtually continuous for many years. The court also found that there was no proof that as a defendant gets older, his penchant for committing crimes decreases. The court does agree with the defendant that the length of the defendant’s sentence plays a part in whether the defendant falls within the spirit of the Three Strikes law as well as the facts of the current crime, whether the new act was committed while on parole or shortly after getting off parole, and the violence in the defendant’s background. Here, the Court of Appeal disagreed with the trial court and found, as a matter of law, that appellant fell within the parameters of the Three Strikes law. This is another case of the Court of Appeal supplanting its opinion for the trial court’s.
hh. People v. Stone (1999) 75 Cal.App.4th 707, the Second Appellate District, Division 4, held that the trial court did not abuse its discretion in failing to strike one or more strikes, based on the following: (1) his current conviction for manufacturing of PCP, (2) he had served 4 prior prison terms, (3) he was on parole at the time of the current offense, (4) his performance on parole was unsatisfactory, (5) his convictions were numerous and of increasing severity, (6) his priors were violent and included voluntary manslaughter, kidnaping, and assault with a deadly weapon, and (7) his criminal history span from 1982 through 1997. The Court of Appeal therefore concluded that this defendant was not similar to Mr. Garcia (see People v. Garcia (1999) 20 Cal.4th 490), wherein the defendant’s prior acts were committed in a single period of aberrant behavior and did not involve violence. You can use Mr. Stone as the Three Strikes poster boy in distinguishing your clients, much the same way we did with Mr. Askey of People v. Askey (1996) 49 Cal.App.4th 381, wherein Mr. Askey was classified as the budding Night Stalker due to the violence in his background.
ii. People v. Taylor REVIEW GRANTED ON AN UNRELATED ISSUE (S088909) August 23, 2000; formerly cited at: (2000) 80 Cal.App.4th 804, the Second Appellate District, Division 7, held that the trial court abused its discretion in failing to strike a strike by considering inappropriate factors. Appellant was convicted of possession of .04 grams of cocaine and he was subject to a 25-to-life sentence. Discretion is abused when the trial court’s decision is “irrational or arbitrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) Discretion is also abused when the trial court’s decision to strike or not to strike is based on an improper reason. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) The Court of Appeal found that two factors were improperly considered: (1) the way the defendant handled his pro per defense, basically asking the jury for sympathy, and (2) calling a police officer a liar, and attempting to use his opening and closing statements as testimony rather than testifying. The trial court stated that appellant “cheated” throughout his trial, and now should not get any benefit, and refused to strike a strike, even though it cited reasons why it could have. The Court of Appeal held that appellant’s amateurish defense should not have been considered in the trial court’s rationale in striking a strike, and therefore sent the matter back for further consideration. Additionally, the Court of Appeal found, like the Court of Appeal in People v. Stone (1999) 75 Cal.App.4th 707, 716-717; People v. Myers (1999) 69 Cal.App.4th 305, 309-310; and People v. Gillispie (1997) 60 Cal.App.4th 429, 433-434, that a denial of a Romero motion under section 1385 is appealable. (Contra, People v. Benevides (OVERRULED IN PEOPLE v. CARMONY, SUPRA, FORMERLY AT: (1998) 64 Cal.App.4th 728, 734.)
jj. People v. Aubrey(1998) 65 Cal.App.4th 279, the Fourth Appellate District, Division 3, held that when the trial court makes the ruling that it will exercise its discretion under Romero and strike appellant’s only serious felony strike within the meaning of section 667, subdivisions (b)-(i), for this “two strike” defendant, said ruling made him eligible for probation, even though he was subject to the provisions of section 667, subdivision (a) (i.e. the five year prior for the prior serious felony). This Court of Appeal declined to follow People v. Winslow (1995) 40 Cal.App.4th 680, which held that when a defendant is subject to the five year prior within the meaning of section 667, subdivision (a)(1), he was not eligible for probation, as the five year prior must be imposed. Here, this Court of Appeal found that Winslow’s analysis was erroneously premised on the proposition that section 1385, subdivision (b)’s prohibition against striking a prior necessarily includes prohibition against a stay of the enhancement which would occur incident to the grant of probation. The court found, based on People v. Vergara (1991) 230 Cal.App.3d 1564, 1568, that there is a fundamental difference between striking and staying an enhancement. As a result, the legislature by its language in other statutes knows how to prevent the granting of probation, but they did not use that or similar language when it enacted section 667, subdivision (a)(1), and as a result, probation is not precluded within the context of this case.
kk. People v. Bradley (1998) 64 Cal.App.4th 386, the Second Appellate District, Division 5 remanded the matter back to the superior court for re-sentencing as a result of the court’s failure to either strike or impose a prior prison term within the meaning of section 667.5, subdivision (b). The Court of Appeal found that the failure to impose or to strike said enhancement was an unauthorized sentence. (See People v. Irwin (1991) 230 Cal.App.3d 180, 190; see also People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) The Court of Appeal rejected the prosecution’s argument that the enhancement must be imposed based on the rationale of People v. Dotson (1997) 16 Cal.4th 547. The Court of Appeal concluded that even though the legislature eliminated section 1170.1, subdivision (h), which permitted that court to strike the prison prior, there was no express legislative intent to prohibit the court from striking the section 667.5, subdivision (b) enhancement pursuant to section 1385, subdivision (a), and within the meaning of People v. Superior Court (Romero) (1997) 13 Cal.4th 497, and People v. Superior Court (Alverez) (1997) 14 Cal.4th 968. The statutory power to dismiss in furtherance of justice has always coexisted with statutes defining punishment and must be reconciled with the latter.
ll. People v. Turner (1998) 67 Cal.App.4th 1258, the Second District, Division 4, held wherein a defendant admits prior convictions within the meaning of section 667, subdivision (a)(1) and admits those same convictions as strikes, the court must impose the serious felony enhancement even if it strikes the strike based on the same prior offense. The Court of Appeal rejected appellant’s application of People v. Candelario (1970) 3 Cal.3d 702 given the subsequent amendment to section 667 in 1986 and the abrogation of People v. Fritz (1985) 40 Cal.3d 227. However, this Court of Appeal did not analyze the holding in People v. Aubrey (1998) 65 Cal.App.4th 279, wherein that court acknowledged that a court cannot strike a serious felony enhancement, but it could stay such pursuant to People v. Vergara (1991) 230 Cal.App.3d 1564. The Aubrey Court indicated that the legislature clearly knows how to write legislation precluding the striking or staying of a serious felony, that they did not do that in this case and therefore, the Court of Appeal could have stayed the prior.
mm. People v. McGlothin (1998) 67 Cal.App.4th 468, the First District, Division 3, held that the trial court abused its discretion within the meaning of Romero and Williams, supra, when it struck a strike and sentenced appellant as a “two-striker” within the meaning of section 667, subdivision (e)(1). Appellant and others committed a robbery on two elderly persons, one of whom was knocked to the ground and a death threat was made. Citing California Rules of Court, rule 421, the Court of Appeal set out various factors that it considered in finding that the trial court had abused its discretion. It then considered appellant’s criminal history which dated back to a robbery when he was 15 years old. The trial court essentially erred when it stated as one of the reasons that it was striking a strike was as follows: “But essentially I’m doing it for – because I don’t think the punishment in this case should warrant a life top sentence.” The court did the ultimate wrong – it basically stated that it did not concur with the three strikes sentencing scheme and therefore, it was striking a strike. Do not let the trial court show its antipathy for the strikes law – this will, as it did here, lead to a reversal against your client.
nn. People v. Thornton (1999) 73 Cal.App.4th 42, the Fourth Appellate District, Division 2, held that the trial court abused its discretion in striking a strike, within the meaning of People v. Williams (1998) 17 Cal.3d 148 and People v. McGlothin (1998) 67 Cal.App.4th 468. Here the court struck two priors as both of them involved the theft of food from the residence of persons that he knew. True enough, the defendant’s background did have some violence and he was “not a nice guy”, but the Court of Appeal certainly does not say anything in this opinion, but, we do not like what the trial court did, and therefore we are going to reverse. They are merely substituting their own judgment for that of the trial courts. I would just try and distinguish this one on its facts.
oo. People v. Ramos (1996) 47 Cal.App.4th 432, Division 7 of the Second Appellate District, held that the trial court abused its discretion when it struck a strike merely because appellant pleaded guilty. However, the Court of Appeal did not express its opinion as to whether it would be an abuse of discretion to strike a strike based on any other justification.
pp. People v. Murillo (1995) 39 Cal.App.4th 1298, the Sixth Appellate District found that striking a prior is not a proper remedy for failing to give appellant his immigration consequences at the time the plea was taken. The court went on to say that to obtain relief from a plea where the court failed to give him the immigration consequences, a defendant must establish prejudice in that he did not actually know of the immigration consequences, and he would not have entered a plea had he known of said consequences. (See People v. Cooper (1992) 7 Cal.App.4th 593, 596-601.) Here, appellant had pled to another matter prior to the plea in the prior in question, wherein he was given his immigration consequences. The court found that the previous advisement did not suggest that the court’s failure to give it in the matter against him was prejudicial. (People v. Aguilera (1984) 162 Cal.App.3d 128, 132.)
qq. People v. Brantley (1995) 40 Cal.App.4th 1538. DEPUBLISHED.
rr. People v. Strong (2001) 87 Cal.App.4th 328, the Third Appellate District held that a court’s decision to strike a strike is error, within the meaning of Williams and Romero, unless the defendant establishes that appellant is outside the spirit and intent of the Three-Strikes law. In this matter the defendant was convicted of selling bunk (e.g. trying to pawn off something that was cocaine, but was not). The defendant had a prior strike, in 1996, for assault with a deadly weapon, for which he had served a 2 year sentence. The trial court struck the strike, over the objection of the prosecution. The court stated its multiple reasons for striking the strike on the record, and the people appealed. The trial court stated that it was striking the strikes because the defendant had never used a weapon, most of his crimes were drug related, the defendant was statistically of the age that he would not pose a risk to society (i.e. 41), and his entire long record was devoid of violence. The Court of Appeal reversed the trial court finding that a long criminal record is a valid reason why the defendant comes within the spirit of the Three Strikes law, and therefore, the trial court abused its discretion in striking the strike. Fortunately, in Districts where the DA has a policy like they do in Los Angeles, San Francisco, or Alameda, this will ruling will not have much impact, but be careful in Appellate Districts, like the Third, where this case could raise its ugly head.
ss. People v. Cluff (2001) 87 Cal.App.4th 991, the First Appellate District, Division 3, held that the trial court may have abused its discretion in failing to consider proper factors in its decision not to strike a strike for failure to register. The defendant merely failed to re-register on a yearly basis. The Court of Appeal accepted the trial court’s finding that it was an intentional act. However, given the very technical, non-violent nature of the current offense, the fact that the defendant had been working, the defendant’s age, that being 48, the fact that the police knew where the defendant was and had no trouble finding him, there was no evidence that the defendant tried to obfuscate his true residence. The court must look to individual characteristics in making its Romero determinations. The Court of Appeal found, on this record that there are strong reasons why the defendant should be treated as though he fell outside of the Three-Strikes law. It also noted that California Rules of Court, Rule 4.423, subdivisions (a)(1), (a)(6), (a)(7), and (b)(6) come into play and should be considered. As a result the matter was remanded for further consideration of striking the strike.
tt. People v. Zichwic (2001) 94 Cal.App.4th 944, the Sixth Appellate District held that the trial court did not abuse its discretion in failing to strike five prior strikes in order to reduce the matter to a two-strike sentence. The majority of the Court of Appeal held that since the court cited to Williams at different times in the hearing, it was aware of the proper standard used in determining this issue. They also found that the Court of Appeal cannot substitute its judgment of the relative weights of aggravating and mitigating factors properly considered by the trial court. (See People v. Hetherington (1984) 154 Cal.App.3d 1132, 1140-1141; People v. Calderon (1993) 20 Cal.App.4th 82, 87.) However, the dissent indicated that the trial court felt that it was constrained by Williams from striking the strikes, to which the dissent indicated that it was not, and would have remanded the matter back to the superior court for another hearing on the matter.
uu. People v. Morales (2003) 106 Cal.App.4th 445, the Second Appellate District, Division 5, held that the jury’s finding that the defendant had previously been convicted of a serious or violent felony required doubling of his sentence on all counts under Three Strikes Law, (see People v. Nguyen (1999) 21 Cal.4th 197, 203-204), even though jury finding was made only as to one count, as this falls into the category of a status enhancement, and not one that is offense specific. However, the Court of Appeal held that the matter must be remanded to the superior court, for it to have an opportunity to exercise its power to strike the priors as to the subordinate or other counts within the meaning of People v. Garcia (1999) 20 Cal.4th 490, 496-503; see also People v. Carrillo (2001) 87 Cal.App.4th 1416, 1419, fn.3.
vv. People v. Griggs (2003) 110 Cal.App.4th 1137, the Fifth Appellate District held that the trial court did not abuse its discretion (see People v. Gillispie (1997) 60 Cal.App.4th 429, 434; in failing to strike a strike when taking into account his entire prior record and current offenses.
ww. People v. Burgos (2004) 117 Cal.App.4th 1209, the Second Appellate District, Division 2, held that the lower court abused its discretion in denying the defendant’s motion to strike one of two prior felony convictions under section 1385 where: (1) both arose from the same act, (2) an express statutory preclusion barred imposition of sentences for both, and (3) the defendant’s other prior criminal history consisted of several misdemeanors and a felony conviction for sale of a substance in lieu of a controlled substance. Appellant’s current offense was an assault and robbery in which defendant injured and took the shoes of another detainee in his holding cell, and as a second-strike offender defendant would still face a term as long as 20 years. The prior offenses arose from one act, wherein appellant was convicted of attempted carjacking and attempted robbery, and section 654 was applied at the time of sentence. Here, the Court of Appeal analyzes People v. Benson (1998) 18 Cal.4th 24 and People v. Sanchez (2001) 24 Cal.4th 983, 993, wherein the High Court indicated that there are certain circumstances, wherein the prior convictions are so closely related, that it would be an abuse of discretion not to strike a strike – that is the rationale that this Court of Appeal applied in this case.
xx. People v. Philpot (2004) 122 Cal.App.4th 893, the Fourth Appellate District, Division 2 held that where the defendant took an automobile with an attached trailer, he could be convicted of two counts within the meaning of section 10851. The Court of Appeal also found that the denial of the motion to strike “strike” priors was not an abuse of discretion where defendant had a 20-year history of committing increasingly serious crimes, including two probation violations, and committed the instant offenses shortly after his release from prison. On the other hand, the defendant had not committed a serious or violent felony for many years as they were quite remote, they all came out of one case, and he had wanted to plead at an early stage for less than 25 to life. Nonetheless the Court of Appeal found that the lower court did not abuse its discretion within the meaning of People v. Williams (1998) 17 Cal.4th 148, 161, or the standard set forth in People v. Carmony (2004) 33 Cal.4th 367, 376.
yy. People v. Vera (2004) 122 Cal.App.4th 970, the Sixth District Appellate District held that, the defendant is estopped from contending that the trial court lacked authority under Three Strikes Law to strike the serious felony enhancements within the meaning of section 667, subdivision (a)(1), where striking the enhancements was agreed to as part of a plea bargain. As a part of the plea, the court could have stricken a strike, and imposed the two 5-year enhancements, or stricken the 5-year enhancements that appellant already admitted, or other options for imposing a determinate term instead of the life term. The Court of Appeal found that a defendant who agreed to and receives a benefit from a plea should not be allowed to improve on the bargain (see People v. Cepada (1996) 49 Cal.App.4th 1235, 1239), where even if the court exceeds its jurisdiction, he cannot complain of getting what he bargained for so long as the court had fundamental jurisdiction.
zz. People v. Murphy (2004) 124 Cal.App.4th 859, the Third Appellate District held that there is no constitutional right to have a jury, rather than a judge, within the meaning of Blakely or Apprendi, decide whether to dismiss “strike” allegations in the interests of justice pursuant to Romero. The Court of Appeal likened this issue to the decision in People v. Garcia (2004) 121 Cal.App.4th 271, wherein that Court of Appeal held that there is no federal or state constitutional right or state statutory right to a jury trial on the issue of whether “another person, other than an accomplice, was present in the residence” during the commission of a first degree burglary, which makes the offense a “violent felony” (see § 667.5, subd. (c)(21)) to limit conduct credits to 15% within the meaning of section 2933.1 even after Apprendi as the limitation on credits does not add to the defendant’s maximum confinement time for the first degree burglary.
aaa. People v. Poslof (2005) 126 Cal.App.4th 92, the Fourth Appellate District, Division 2, held that the trial court’s refusal to strike defendant’s prior serious felony convictions in the interests of justice was not an abuse of discretion given the nature and circumstances of current offense, 30-year record of criminal behavior that included multiple incarcerations, and negative particulars of defendant’s background, character, and prospects.(See People v. Williams (1998) 17 Cal.4th 148, 161.) The Court of Appeal indicated that the defendant’s reliance on People v. Cluff (2001) 87 Cal.App.4th 991 was misplaced and factually distinguishable.
bbb. People v. Pena (2005) 128 Cal.App.4th 1219, the Sixth Appellate District held that the lower court did not abuse its discretion in denying his Romero motion. Appellant argued that his strike priors were remote (13 years earlier), and arose from one incident (People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8 [it may be error not to strike a strike if the two strikes arose from a single event].) Here, the two strike arose from the death of two persons in a single vehicle accident, wherein he was convicted of two counts of vehicular manslaughter, and the Court of Appeal found that that was not the type of event which the Supreme Court was referring. Furthermore, appellant’s record consisted of nine felonies, and 11 misdemeanors, and that he had spent most of his life in prison, frequently returning for parole violations. Therefore, based on People v. Barrerra (1999) 70 Cal.App.4th 541, 555, People v. Strong (2001) 87 Cal.App.4th 328, and People v Gaston (1999) 74 Cal.App.4th 310, the lower court did not abuse its discretion in denying the Romero motion.
ccc. People v Flores (2005) 129 Cal.App.4th 174, the Fourth Appellate District, Division 3 held that under section 1385, the court has the power to dismiss or strike an enhancement. The failure to impose or strike the enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Striking of an enhancement is tantamount to a dismissal, and implies that it must be dismissed in the interest of justice. (See People v. Carrillo (2001) 87 Cal.App.4th 1416, 1421.)
ddd. People v. Dial (2005) 130 Cal.App.4th 657, the First Appellate District, Division 2 held that under the Three Strikes Law, section 667, subdivision (c), indicates, unless the court strikes a prior, essentially pursuant to Romero, then the strike sentence must be imposed. The Court of Appeal failed to rule on the issue of whether the court could have “stayed” rather than strike the prior, pursuant to People v. Aubrey (1998) 65 Cal.App.4th 279, 283-285), since the issue was first raised at the time of the oral argument, and the parties had not had a chance to brief the issue. (See Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-357, fn. 6.) Additionally, it is clear that the defendant cannot be placed on probation, and be sentenced to state prison at the same time. (See People v. Marks (1927) 83 Court of Appeal 370, 376-377.)
eee. People v. Thimmes (2006) Cal.App.4th , reported on April 27, 2006, in 06 Los Angeles Daily Journal 4995, the Sixth Appellate District held that the court’s denial of defendant’s Romero motion, was error where it was based in part on the erroneous presumption that the defendant was warned at time of the prior conviction, for a violation of section 422, criminal threats, in 1999, that it would constitute a “strike” if he were convicted of a future offense, when in fact the prior would not have been a strike under the law in effect at the time of the conviction. A violation of section 422 did not become a strike until 2000. As a result of counsel’s failure to object, or correct the court, appellant received ineffective assistance. The matter was reversed and sent back for a new Romero hearing.
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