Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA063456, Charles D. Sheldon, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Terry Michael Hansen appeals from the judgment entered following his pleas of guilty to 12 counts of robbery (Pen. Code, § 211; counts 1 - 12) with admissions as to each offense that he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and with admissions that he suffered three prior felony convictions (Pen. Code, § 667, subd. (d)) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)). The trial court sentenced him to prison for 70 years 8 months. Appellant claims the trial court committed sentencing errors. We remand for resentencing but otherwise affirm the judgment.
On April 4, 2007, appellant filed a petition for a writ of habeas corpus (B197929) and, on April 10, 2007, this court ordered that his appeal and the petition be concurrently considered. The petition will be the subject of a separate order.
FACTUAL SUMMARY
The record reflects that in 2004, appellant committed 12 armed robberies in Los Angeles and Orange Counties. The offenses occurred on September 28 (count 1), September 30 (count 2), October 7 (count 3), October 8 (count 4), October 12 (counts 5 & 6), October 18 (counts 7 & 8), October 21 (counts 9 & 10), October 26 (count 11), and October 28 (count 12). Almost all of the victims were working at gas stations or donut shops at the time of the robberies. Appellant took between $70 to $800 from each victim.
CONTENTIONS
Appellant claims the trial court erroneously failed (1) to exercise its discretion to impose concurrent sentences on the counts, and (2) to pronounce sentence on the two Penal Code section 667, subdivision (a) enhancements.
DISCUSSION
Remand for Resentencing Is Appropriate.
As shown below, and as respondent essentially concedes, the trial court erroneously believed it lacked discretion to impose concurrent sentences on counts 1 through 12. Accordingly, we will remand for resentencing.
1. Pertinent Facts.
The preconviction probation report prepared for a January 2005 hearing reflects as follows. Appellant was born in October 1969. Following his arrest for the present offenses, appellant told police he had a bad drug habit. During one of the October 21, 2004 robberies, appellant struck the victim with a gun and tried to hit the victim again.
The report also reflects the following concerning appellant’s criminal history. On October 22, 1985, appellant suffered a sustained petition for attempted murder (case No. J019094), for which the court ordered him placed in the California Youth Authority. In October 1990, he was released on parole. In March 1991, appellant was convicted of felonious assault (case No. NA006410) and sentenced to prison for five years. In April 1995, appellant was arrested by the United States Marshal and, on October 2, 1995, he was convicted of strong arm robbery and sentenced to prison for 40 months. In July 2004, appellant was convicted of misdemeanor battery upon a peace officer or emergency personnel.
Appellant told the probation officer the following. Appellant started using drugs and drinking alcohol when he was a child. Appellant had used every type of drug, and he used drugs and drank alcohol daily. Appellant spent about $100 to $200 daily on drugs and/or alcohol. Appellant had never participated in any drug program in his life. Appellant had been prescribed medication for depression but had not been taking the medication regularly. He dropped out of school during the eighth grade, and obtained a general equivalency diploma in 1997. Appellant had been unemployed since May 2004, and was fired from his last job.
The probation officer stated: “From a young age the defendant has displayed a pattern of violence and with his continued use of his drugs, his offenses appear to be escalating in severity. He actually hurt one of his victims with the gun. No doubt, the defendant probably suffers from a serious drug addiction but there is no excusable explanation for the defendant’s actions. The crime was violent and horrifying for each of the victims. [Until] this day they have all been affected by it and still suffer fear from the traumatizing incident. The defendant has served prior prison terms and no sanctions in the past have deterred his criminal ways. He needs to be held accountable. The victims for a long time to come will be affected by his actions. No doubt, should he be released he would continue with his criminal activities and possibly hurt someone more seriously. Therefore, it is felt the defendant should be sentenced at the maximum level there is.”
The report listed as aggravating factors that the crime involved great violence, great bodily harm, a threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness; the victim was particularly vulnerable; the crime involved multiple victims; the planning, sophistication or professionalism with which the crime was carried out, or other facts, indicated premeditation; appellant engaged in a pattern of violent conduct which indicated a serious danger to society; his prior convictions as an adult or adjudications of commission of crimes as a juvenile were numerous or of increasing seriousness; and he had served prior prison terms. The report listed no mitigating factors and recommended imposition of the “high-base” term.
On March 10, 2006, the parties indicated in court that appellant would be entering an “open plea.” During the taking of the pleas, the prosecutor told appellant that the maximum sentence he could receive “because it is a Three Strikes case, is 25 to life on each count, with an additional five years, and also ten years for the gun allegation on one count, and then an additional three years, four months for the gun allegation on each additional count.” Appellant said he understood. The prosecutor also indicated that the court could, in its discretion, impose the maximum sentence or “strike strikes and sentence [appellant] to a lesser sentence.” Appellant said he understood, and later entered the previously mentioned guilty pleas and admissions.
In exchange for appellant’s guilty pleas, the People agreed to dismiss his unrelated drug case (case No. VA082911).
According to appellant’s admissions, the three prior strikes were an October 22, 1985 juvenile adjudication for felonious assault with use of a dangerous or deadly weapon (case No. J019094), a 1991 conviction for felonious assault with infliction of great bodily injury (case No. NA006410), and a 1995 federal robbery conviction (case No. CR-000016).
On April 13, 2006, appellant filed a request to dismiss the strikes pursuant to Penal Code section 1385. Appellant argued as follows in his written request. Appellant was a native American. His father, a member of the Chippewa tribe, was an alcoholic who left appellant when he was two years old. Appellant turned to male relatives as role models, but they were addicted to drugs and alcohol. In 1971, appellant moved from North Dakota to Hawaiian Gardens. He was 16 years old when he committed the 1985 offense in case No. J019094. From 1986 through 1994, he received various certificate awards and a trophy. Appellant suffered convictions in 1991 and 1994. However, his performance when supervised, whether he was in custody, or when he was employed, was excellent. Appellant was suffering from heroin addiction and alcohol abuse, and his drug addiction was the root of his problems.
Appellant also argued as follows. Appellant’s sentence would be lengthy even absent the strikes. Based on his open plea, he “face[d] a potential sentence range from sixty to eighty years.” Appellant’s hard-core drug addiction caused him to commit his crimes, and his criminal conduct was partially excusable because the drug addiction was relevant to whether he had formed the requisite specific intent for robbery. On numerous occasions, appellant sought and received professional help for his addiction. He placed himself in a residential treatment facility and joined a methadone maintenance program. Appellant was suffering from a mental or physical condition that significantly reduced his culpability for the crime, and voluntarily acknowledged wrongdoing at an early stage of the process. His prior performance on probation or parole was satisfactory. Appellant had a supportive family and character letters from co-employees.
At sentencing on April 21, 2006, the court indicated it had read the probation report and appellant’s request to dismiss the strikes. The record does not reflect that the People filed an opposition to appellant’s request. The court noted that the 1985 strike was very remote even though it indicated continuing criminality. Appellant asked the court to strike all of the strikes, fashion a sentence of between 10 to 15 years in prison, and recommend that appellant participate in a drug program.
The court asked what the prosecutor thought was a fair sentence. The prosecutor argued as follows. The offenses were separate incidents of robbery, and the Three Strikes law mandated consecutive sentencing for each incident. Appellant committed multiple armed robberies, and there was no reason to strike any strike.
Later, the court asked the prosecutor to calculate appellant’s mandatory minimum sentence based on the assumption that there were no strikes and, in the alternative, based on the assumption that the strikes remained.
The prosecutor subsequently directed the court’s attention to Penal Code section 667, subdivision (e)(1) and (2), and argued the court was required to impose mandatory consecutive terms for the robberies because of the strikes, and was required to impose the firearm enhancements.
Appellant’s counsel asked the court to exercise its power under Penal Code section 1385 to “fashion a sentence that would be more appropriate, in the range of 12 to 15 years, maybe a high of 20.” The court asked appellant if he wished to address the prosecutor’s argument that consecutive sentencing was mandatory even absent any strikes. Appellant’s counsel replied that he believed the court could “strike the strike, sentence him on count 1, and on the other counts suspend the sentence.”
The prosecutor later asked whether the court wanted the prosecutor to calculate appellant’s mandatory minimum sentence based on the court’s imposition of a lower term, and the court replied it wanted the middle term. The prosecutor later stated, “If you strike all of the strikes and you give him midterm, because the charges have to be consecutive, it would be 70 years, 8 months is the legal minimum.” The court asked the prosecutor how she arrived at that total term. The prosecutor indicated the total term consisted of: (1) the three-year middle term on count 1, plus 10 years for the firearm use pertaining that count, (2) a consecutive term of one year (as one-third the middle term of three years) as to each of counts 2 through 12, plus 3 years 4 months for the firearm use pertaining to each of counts 2 through 12, plus (3) two five-year Penal Code section 667, subdivision (a) enhancements.
The prosecutor also said that the maximum mandatory sentence was 430 years to life, consisting of 12 consecutive terms of 25 years to life for each count, plus 12 consecutive terms of 10 years for the firearm use for each count (this actually totals 420 years). The court noted there were two mandatory Penal Code section 667, subdivision (a) enhancements. The court asked if appellant wished to say anything, and appellant’s counsel reiterated that the court “[had] the power to suspend those sentences.”
The court later stated, “what I am going to do is give him the statutory minimum that I believe I do have to give. And because I feel it’s just not [sic] to have this extraordinary sentence, even though he has scared a lot of people with a gun in their face over a several-month period of time on numerous occasions. [¶] I’m going to give him the minimum, that according [to] the D.A. I can give him, based upon saying that the aggravation and mitigation under court rules, which are rule[s] 4.414, 4.212 [sic], 4.420, 4.423, consecutive versus concurrent, and rules in that respect as well as Penal Code rules. [¶] I will give him that statutory minimum and strike the three priors because I feel it’s just to give him the minimum sentence that I have to give for the multiple charges that he has been convicted of by plea.”
California Rules of Court, rule 4.414 pertained to criteria affecting probation. There was no rule 4.212. Rule 4.420 pertained to selection of the base term of imprisonment. Rule 4.423 pertained to circumstances in mitigation.
The prosecutor asked if the court was going to articulate why it was striking the strikes. The court replied yes and stated, “I think it’s a totally just sentence to not give 430 years to life.” The court also said it was considering appellant’s “total history,” including his heroin addiction.
The court later stated, “And so it’s Count 1, three years. Ten years for the allegation is 13 base term. [¶] Counts 2 through 12, . . . one-third the mid base, which is one times 11 for . . . 11 years. [¶] And then because of the allegations, once again, one-third, three years, four months for each one, the use of the gun on all of these other counts. The use of the gun in Count 1 was ten. [¶] The use of the gun on Counts 2 through 12 is three years, four months is 46 years, 8 months totaling – as [the prosecutor] said when I asked her to do this for me, and I know that didn’t mean that’s what they think is good. That’s what she just did to accommodate the court – is a total of 70 years, 8 months minus whatever he served.” We will present additional facts where pertinent in our analysis below.
We note the trial court stated, “[t]he use of the gun on counts 2 through 12 is three years, four months is 46 years, 8 months . . . .” However, the firearm use enhancement on counts 2 through 12, at three years four months for each such enhancement, totaled 36 years 8 months. The record suggests that the trial court, referring to 46 years 8 months, was including the 10-year firearm use enhancement pertaining to count 1 in the court’s calculations.
2. Analysis.
a. The Trial Court Erroneously Believed It Lacked Discretion to Impose Concurrent Sentences.
Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the trial court. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) A trial court can fail to exercise informed discretion in its sentencing decision when the trial court is unaware of the scope of its discretionary powers at sentencing. (Ibid.)
“It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively. (Pen. Code, § 669; [citation].)” (People v. Bradford (1976) 17 Cal.3d 8, 20.) Appellant’s admission that he had suffered prior strikes does not compel a contrary conclusion, since the trial court granted appellant’s request to dismiss them. Once the trial court dismissed all of the strikes, it was entitled to sentence appellant free from the provisions of the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 506-507, 524, 531-532 & fn. 11; Pen. Code, § 1385, subd. (a).)
Respondent does not claim that the trial court erred in striking the strikes, or that this court should vacate the trial court’s order striking them.
It is clear from the record that the trial court in the present case believed it lacked discretion to impose concurrent sentences. Respondent concedes the trial court had discretion to impose concurrent sentences, and essentially concedes the trial court erroneously believed it lacked discretion to impose such sentences. We conclude the trial court erroneously believed it lacked discretion to impose concurrent sentences on counts 1 through 12.
At sentencing, the court said it was going to “give [appellant] the statutory minimum that I believe I do have to give.” (Italics added.) Although the prosecutor earlier had indicated consecutive sentencing was mandatory under the Three Strikes law, the prosecutor later argued that consecutive sentencing was mandatory even absent the strikes, and the court subsequently said, “I’m going to give [appellant] the minimum, that according [to] the D.A. I can give him[.]” (Italics added.) The court thereby implicitly adopted the prosecutor’s argument that consecutive sentences were mandatory even absent the Three Strikes law. The court also said it felt it was just to give appellant “the minimum sentence that I have to give[.]” (Italics added.) The court referred to the prison sentence of 70 years 8 months as the sentence the prosecutor calculated “when I asked her to do this for me,” and, as mentioned, the prosecutor’s calculation was based on mandatory consecutive sentencing even absent the Three Strikes law.
b. The Error Was Prejudicial.
The remaining issue is prejudice. When the record reflects that the trial court is unaware of the scope of its discretionary power at sentencing, a defendant is entitled to a remand for resentencing unless the record indicates the trial court would not have exercised its discretion. (Cf. People v. Deloza (1998) 18 Cal.4th 585, 600 (Deloza); People v. Fuhrman (1997) 16 Cal.4th 930, 944; People v. Belmontes, supra, 34 Cal.3d at p. 348; People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229; People v. Fields (1984) 159 Cal.App.3d 555, 571.) For example, in Deloza, the trial court erroneously believed consecutive sentences were mandatory under the Three Strikes law. Our Supreme Court remanded the matter for resentencing. (Deloza, supra, 18 Cal.4th at p. 600.)
In the present case, we cannot say that the record indicates as a matter of law that the trial court would not have exercised its discretion to impose concurrent sentences on one or more counts. To the contrary, we note the following facts.
The trial court, fully aware of appellant’s criminal background, demonstrated leniency by striking all of appellant’s strikes. The trial court initially had signaled its willingness to strike the 1985 strike as remote but, after hearing argument on appellant’s request to strike, the court struck all of them.
It is clear from this record that the trial court had not come to the sentencing hearing with its mind made up but, commendably, had intentionally refrained from deciding appellant’s sentence until the court had had an opportunity to carefully consider the parties’ sentencing arguments. The court actively sought the parties’ input on the issues, and thereby signaled that that input could significantly impact the court’s sentencing decisions.
The trial court was obviously impacted by appellant’s argument concerning his background and, in particular, that he was a native American who had been raised by alcoholics and who himself ultimately became a heroin addict and alcoholic. Moreover, the court, while acknowledging that armed robbery was a serious offense, nonetheless suggested that the robberies committed by appellant were not the most heinous robberies possible, a point argued by appellant.
Similarly, the court commented that it made sense to the court that appellant was seeking “as low a term as I’m willing to give.” This suggests the court viewed appellant’s requests for leniency as reasonable. Although the prosecutor had rejected as offensive appellant’s characterization of the robberies as petty, the court, acknowledging they were serious, nonetheless commended appellant’s counsel for his argument and representation of appellant. As part of that argument, appellant urged he should receive a prison sentence substantially less than 70 years 8 months.
The court relied heavily on the prosecutor’s argument. The court imposed mandatory consecutive sentences largely because of the prosecutor’s misadvisement that consecutive sentencing was mandatory. For example, at one point, the court had told the prosecutor, “Tell me what you think the mandatory sentence is without the strikes first so I want to have that in my brain before I consider the rest of the Romero aspect of it.”
Moreover, in light of the impact of the parties’ arguments on the trial court, it is significant that neither party ever indicated to the trial court that concurrent sentencing was possible.
Later, the trial court asked the prosecutor to calculate appellant’s mandatory minimum sentence based on the assumption that there were no strikes and, in the alternative, based on the assumption that the strikes remained. ~(RT/10)~ Shortly thereafter, the trial court indicated it wanted to review the statutory basis for the prosecutor’s calculations. These facts support inferences that the trial court was uncertain that mandatory consecutive sentencing was required even absent the strikes, and that the trial court might have sentenced differently had it been aware that consecutive sentencing was not required.
The trial court never stated that, even if it had been free to impose a lower sentence than the one the court ultimately imposed, it would have refused to do so. However, the trial court did refuse to impose the maximum mandatory sentence calculated by the prosecutor.
The probation report listed several aggravating factors, found there were no mitigating factors, recommended the “high-base” term (see fn. 2), and recommended that the court sentence appellant to the “maximum level there is.” However, the court concluded that any aggravating and mitigating factors were evenly balanced, imposed a middle term, and refused to impose the maximum possible term.
Appellant asked that the court strike the strikes, impose a prison term of less than 20 years, and recommend appellant to a drug program. The court complied with the first and third requests. Appellant got almost everything he asked for. These facts do not compel the conclusion that, absent the trial court’s erroneous belief that consecutive sentencing was mandatory, the court would have granted appellant’s second request, but they suggest that, absent that erroneous belief, the court might have fashioned a more lenient sentence than the one it ultimately imposed.
When imposing sentence, the trial court did not merely mention in passing that consecutive sentencing was mandatory, but repeatedly emphasized such sentencing was mandatory. (See fn. 7.) The trial court certainly did not state that, even if it had discretion to impose concurrent sentences, it would not have imposed concurrent sentences on one or more counts.
Although respondent argues any error was harmless because the trial court concluded its sentence was just and appropriate, that argument misses the mark. The trial court concluded its sentence was just and appropriate at a time when it was laboring under the misimpression that consecutive sentencing was mandatory. Absent that misimpression, the trial court might also have concluded that a lesser sentence was just and appropriate.
The trial court’s error was prejudicial; therefore, we will vacate appellant’s sentence and remand the matter for resentencing. We express no opinion concerning whether, following remand, the trial court should impose concurrent or consecutive sentences on any particular count(s), or concerning what appellant’s sentence should be.
Since we are vacating appellant’s sentence, there is no need to reach appellant’s remaining contention that the trial court erroneously failed to pronounce sentence on appellant’s Penal Code section 667, subdivision (a) enhancements. We are confident that the trial court will sentence appellant properly following remand.
DISPOSITION
The judgment is affirmed, except that appellant’s sentence is vacated and the matter is remanded for resentencing consistent with this opinion. The trial court shall forward to the Department of Corrections an amended abstract of judgment.
We concur: KLEIN, P. J., ALDRICH, J.