Opinion
A131817 Solano County Super. Ct. No. FCR274167
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. ROSANNA MARIE FILBECK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following defendant Rosanna Marie Filbeck's admission that she violated her probation, the court sentenced her to state prison for four years four months. The sole contention on appeal is that the trial court's comments indicate that it did not understand it had the discretion to strike defendant's prior convictions. We disagree that the court's comments indicate the lack of understanding of a long-standing tenet of criminal sentencing and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Inasmuch as the underlying facts are not pertinent to the issue raised on appeal, they will be briefly summarized.
In February of 2010, defendant was arrested and charged with various offenses and prior convictions after she filled a fraudulent prescription for a narcotic drug at a Target Store pharmacy and complaints were made to the police that someone had attempted to fill fraudulent prescriptions in her name at other pharmacies. On October 6, 2010, defendant pleaded no contest to second degree commercial burglary and admitted that she had served three prior prison terms. (Pen. Code, §§ 459, 667.5, subd. (b).) None of defendant's prior convictions were "strikes" under the "Three Strikes" law.
Unless otherwise indicated, all further statutory citations are to the Penal Code.
In exchange for her plea, the two other counts charged in the information were dismissed, and two pending cases were dismissed with Harvey waivers. (People v. Harvey (1979) 25 Cal.3d 754.) In addition, defendant was referred to probation for consideration of placement in a residential treatment center. She was informed that the maximum sentence the court could impose under the plea agreement was six years—three for the burglary and three for the prior prison terms.
Apparently, one case charged defendant with filing a false domestic violence police report, and the other charged her with possession of a syringe containing liquid methamphetamine.
On November 5, 2010, imposition of sentence was suspended and defendant was placed on probation for three years on the condition, among others, that she be placed in a residential treatment program.
On February 16, 2011, defendant admitted that she had violated her probation. She was informed that the maximum punishment which the court could impose for a violation of probation was six years.
At the sentencing hearing on April 5, 2011 before the same judge who accepted defendant's plea and placed her on probation, the following colloquy occurred:
"[DEFENSE COUNSEL]: [W]e are asking the Court to consider exercising its discretion under 1385. I . . . don't think I can put together an argument that would overcome the state prison presumption. She does have three prison priors alleged here. I ask the Court to exercise its discretion under 1385 and dismiss all or some of those 667.5(b) priors. [¶] Probation, in general, is recommending the low-term. Based on the nature of this violation, the nature of her past crimes—we're not talking crimes of violence. We're not talking strikes—I would ask the Court to consider that." (Italics added.)
"THE COURT: All right. [Prosecutor].
"[PROSECUTOR]: Your Honor, I . . . would ask the Court not stay [sic] any of the 667.5(b)'s. The reason for that is the defendant was given the opportunity to have probation on this case with the understanding that she would take this program seriously, which she did not. She was already given the benefit of having not been sent to prison initially, and rather than taking responsibility—or opportunity of this chance, she almost threw it away immediately. [¶] Significantly, even now with this violation, she seems to take very limited responsibility for her conduct. [¶] I would submit it on that.
[¶] . . . [¶]
"THE COURT: The Court has read and considered the probation officer's report, the original probation report, the comments of counsel. [¶] First off, the Court is not going to strike any of the prior convictions. That was part of the agreed upon disposition. [1] You know, this is just one of those things that—it's kind of a—if it hadn't been for the change in the law, it would be a tough stretch to make this anything but high term. [1] What I am going to do is, I'm going to impose the mitigated term of 16 months in state prison for the violation of Penal Code section 459 in the second degree. In addition to that, a consecutive one year for each violation of 667.5 subdivision (b). So the aggregate state prison sentence is four years and four months."
DISCUSSION
Focusing on the trial court's imprecise comments quoted above, defendant argues that a remand is necessary in this case because the trial court's comments demonstrated that it erroneously believed it lacked the discretion to strike one or more of defendant's prior convictions because (1) the prior prison terms were part of the plea bargain, or (2) "a non-existent change in the law . . . support[ed] its refusal to strike [defendant's] prison priors." For the reasons we explain below, we disagree with defendant's interpretation of the record.
"[A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]" (People v. Penoli (1996) 46 Cal.App.4th 298, 302.) " 'Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]' [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 912.) When a sentence choice is based on an erroneous understanding of the law, a remand is appropriate. (Ibid.)
As we review the trial court's observations, we do not see a basis for inferring that the trial court believed it lacked the discretion to strike prior convictions charged under section 667.5, subdivision (b). "Penal Code section 1385, subdivision (a) provides in relevant part: 'The judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.' [Fn. omitted.] The discretion thereby conferred on the trial courts includes the discretion to dismiss or strike an enhancement in the furtherance of justice. [Citations.]" (People v. Bonnetta (2009) 46 Cal.4th 143, 145.) Prior to 1998, "the trial court had the power to strike the prior prison term enhancements pursuant to former section 1170.1, subdivision (h). (Repealed by Stats. 1997, ch. 750, § 3.) [Fn. omitted.] However, in order to strike an enhancement, former section 1170.1, subdivision (h) required that mitigating circumstances be set forth on the record. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391; see People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.) The law is far from unsettled on this point. Thus, we apply the presumption that the trial court below was aware that it had the discretion to strike or impose a section 667.5, subdivision (b) enhancement.
As the Bradley court noted: "The 1997 repeal of former section 1170.1, subdivision (h) does not affect the power of a trial judge to strike an enhancement pursuant to section 1385, subdivision (a). Section 9 of Senate Bill No. 721 states: 'In repealing subdivision (h) of Section 1170.1, which permitted the court to strike the punishment for certain listed enhancements, it is not the intent of the Legislature to alter the existing authority and discretion of the court to strike those enhancements or to strike the additional punishment for those enhancements pursuant to Section 1385, except insofar as that authority is limited by other provisions of the law.' (Stats.1997, ch. 750, § 9.) This uncodified provision of Senate Bill No. 721 is consistent with legislative committee reports prepared in connection with Senate Bill No. 721 which indicated that the section 1385, subdivision (a) power to strike was retained notwithstanding the repeal of section 1170.1, subdivision (h). (Rep. on Sen. Bill No. 721 prepared for Sen. Com. on Public Safety (1997-1998 Reg. Sess.) Apr. 15, 1997, p. 6; Rep. on Sen. Bill No. 721 prepared for Assem. Com. on Public Safety (1997-1998 Reg. Sess.) July 15, 1997, p. 4.)" (People v. Bradley, supra, 64 Cal.App.4th at p. 391, fn. 2.)
We are not faced today with the situation Courts of Appeal encountered before our Supreme Court settled the question whether the trial court retained the discretion under section 1385 to strike a prior conviction alleged under the Three Strikes law in People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court subsequently held that "[i]n view of the weight of published decisions prior to Romero (holding that a trial court lacked discretion under section 1385 to strike a prior felony conviction), we do not believe it would be appropriate to rely upon the rule that a trial court ordinarily is presumed to have correctly applied the law [citations] . . . ." (People v. Fuhrman (1997) 16 Cal.4th 930, 945.) However, there is no basis for suspending the usual presumption of correctness in this case, both because defendant here did not suffer any three strikes convictions, and because in the intervening 16 years since Romero was decided, it has become well known to trial courts that they do have the discretion to strike prior convictions under the Three Strikes law.
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Furthermore, the record as a whole suggests that the trial court understood it had discretion to strike the priors, but declined to do so. First, defense counsel asked the court to exercise its discretion under section 1385. Second, the prosecutor did not in any way suggest that the court lacked the discretion to do so, but rather argued that defendant's recent conduct militated against leniency. Third, the trial court stated it had read and considered the probation reports and the arguments of counsel, from which we may infer that the trial court was well acquainted with defendant's background and extensive criminal record. Thus, to the extent we can glean any meaning from the trial court's comments, the trial court appeared to be saying that given defendant's extensive criminal record (as reflected in the plea bargain), the court would have been hard pressed to come up with a reason to justify striking the prior convictions even if it wanted to do so. Yet, because of some change in the law which it did not identify, the court believed it could justify some leniency and therefore imposed the mitigated term for the offense. We perceive no abuse of discretion in that decision.
CONCLUSION
The record does not demonstrate that the trial court misunderstood the scope of its discretion to strike defendant's prior convictions, and the court did not abuse its discretion in refusing to strike them.
DISPOSITION
The judgment is affirmed.
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Marchiano, P.J.
We concur:
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Margulies, J.
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Banke, J.