Opinion
E067166
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. ROY EPHRAIM ROGERS, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CR63314) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant appeals from the superior court's order denying his postconviction motion to strike a prior conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385. The superior court, at the same hearing, granted defendant's petition under section 1170.126 (Proposition 36) to reduce his total sentence from 100 years to life plus 10 years, which was imposed in 1996, to 25 years to life plus 17 years four months. We affirm the court's order declining to strike a strike because the superior court did not have jurisdiction under section 1385 and Romero after judgment.
Section references are to the Penal Code, except where otherwise indicated.
FACTS AND PROCEDURE
The facts and early procedural background are taken from an earlier opinion. (People v. Rogers (Aug. 18, 2015, E061185) [nonpub. opn.].) In that opinion, this court ordered the superior court to reconsider its previous denial of defendant's petition under section 1170.126, after the California Supreme Court in People v. Johnson (2015) 61 Cal.4th 674 held that Proposition 36 allows a defendant with multiple three strike sentences to seek resentencing as to some, but not all, of those sentences.
A police officer responding to a burglary call was looking for a suspect when he spotted defendant walking down a street carrying a weed eater, an electric hedge trimmer, and an extension cord. The officer stopped defendant and arrested him for being under the influence of a controlled substance. After waiving his constitutional rights, defendant admitted that he had stolen the items he was carrying from a shed. Defendant also admitted he had attempted three other burglaries that same morning.
On January 10, 1996, a jury found defendant guilty of one count of first degree attempted burglary (Pen. Code, §§ 664, 459, count 1); two counts of second degree attempted burglary (Pen. Code, §§ 664, 459, counts 2 & 4); one count of second degree burglary (Pen. Code, § 459, count 3); and one count of misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 5).
The jury subsequently found true allegations that defendant had suffered two prior prison terms (§ 667.5, subd. (b)), two prior serious felony convictions (§ 667, subd. (a)), and two prior serious or violent felony convictions, to wit, a first degree burglary conviction (§§ 667, subd. (c), (e)(2) & 1170.12, subd. (c)) in 1991 and another in 1992.
On February 8, 1996, the trial court sentenced defendant to a total prison term of 110 years to life as follows: consecutive terms of 25 years to life for counts 1 through 4, plus five years each for the two prior serious felony convictions. The trial court struck the sentences for the prior prison term enhancements.
Since 1996, defendant has filed several appeals and a variety of petitions (including habeas corpus and those authorized by Propositions 36 and 47) in several courts. Any filings relevant to this appeal will be discussed below.
Respondent's request for judicial notice filed April 7, 2017, is granted.
On April 11, 2016, defendant filed a request to dismiss his strike priors pursuant to section 1385 and Romero. Defendant cited People v. Garner (2016) 244 Cal.App.4th 1113 (Garner), which held that when a defendant petitions to recall his sentence under Proposition 36, the court may reconsider the entire sentence. (Garner, at p. 1118.) The People countered that raising the Romero issue in this proceeding was a misuse of the Proposition 36 procedure, given that defendant had a final judgment on appeal, and the courts had already denied many writ petitions from defendant on this subject.
Section 1385, provides: "(a) The judge or magistrate 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. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading. [¶] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667. [¶] (c)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). [¶] (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a)."
The superior court held a hearing on both the Proposition 36 petition and the Romero request on May 16, 2016. The court noted: "I don't know if it [the Romero request] should be considered because [defendant] had writs in the lower court, then he took writs in the appellate courts. He has rulings on those facts; however, I would not grant them in any event. I want to make it clear, I would not grant them in any event. That takes care of the Romero issue." The court then granted defendant's Proposition 36 petition and resentenced defendant on the second degree burglary and the two attempted second degree burglaries. As before, the court sentenced defendant to five years each for the two serious felony priors, but imposed six years for the second degree burglary and eight months for each of the attempted second degree burglaries, for a total determinate sentence of 17 years four months. This is in addition to the 25-year-to-life term for the attempted first degree burglary, which was not eligible for recall under Proposition 36.
This appeal followed.
DISCUSSION
Defendant argues the superior court had jurisdiction to strike a prior strike conviction under Romero and section 1385, and that it abused its discretion when it declined to do so. The People counter that the court did not have jurisdiction to consider defendant's Romero motion in this postjudgment proceeding and, even if it did, the court did not abuse its discretion when it denied the motion.
The legal authorities are clear that a superior court can dismiss a prior strike conviction under Romero and section 1385 only up until the pronouncement of judgment, not after. Further, filing a petition under section 1170.126 (Proposition 36) does not change this. The two main cases on this point are People v. Brown (2014) 230 Cal.App.4th 1502 (Brown) and People v. Espinoza (2014) 232 Cal.App.4th Supp. 1 (Espinoza).
In Brown, this court was asked to determine whether the superior court had the authority to strike a disqualifying prior conviction allegation under section 1385 and Romero at a sentence recall hearing brought under section 1170.126. In determining that the court does not have such authority, this court reasoned that the court "does not have general jurisdiction to sentence a criminal defendant after execution of sentence has begun [citation] . . . [and] [s]ection 1385 does not grant the court such jurisdiction." (Brown, supra, 230 Cal.App.4th at p. 1511.) We also cited to Romero itself: " 'Moreover, it is well established that a court may exercise its power to strike under section 1385 "before, during or after trial," up to the time judgment is pronounced. [Citations.]' " (Brown, at p. 1511, citing Romero, supra, 13 Cal.4th at p. 524, fn. 11.)
Further, this court reviewed the language of section 1170.126, subdivision (e), along with the legislative analysis, and concluded that the statute "precludes a trial court from exercising its discretion in the furtherance of justice under section 1385 when determining whether an inmate has satisfied the three criteria set out in that subdivision." (Brown, supra, 230 Cal.App.4th at p. 1513.) This court was particularly concerned that an inmate not "be given another bite at the apple to bring forth a Romero motion and argue his or her prior strike convictions should be stricken in the interest of justice." (Brown, at p. 1514.)
Section 1170.126, subdivision (e), provides: "(e) An inmate is eligible for resentencing if: (1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to [sections 667(e)(2) or 1170.12(c)] for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by [sections 667.5(c) or 1192.7(c)]. [¶] (2) The inmate's current sentence was not imposed for any of the offenses appearing in [sections 667(e)(2)(C)(i) to (iii) or 1170.12(c)(2)(C)(i) to (iii)]. [¶] (3) The inmate has no prior convictions for any of the offenses appearing in [sections 667(e)(2)(C)(iv) or 1170.12(c)(2)(C)(iv)]." --------
In Espinoza, supra, 232 Cal.App.4th Supp. 1, the appellate court upheld the superior court's order denying the defendant's motion to dismiss two 14-year-old misdemeanor convictions under section 1385 on the basis that the court no longer had jurisdiction to act under the statute. First, the appellate court concluded that "nothing in section 1385 . . . grants the trial court postjudgment jurisdiction to dismiss a long-final conviction" (Espinoza, at p. Supp. 6) and agreed with the superior court that " 'a trial court has no authority to dismiss an action after judgment has been imposed . . . .' " (Espinoza, at p. Supp. 7.) Second, the court cited to the same passage in Romero as did this court in Brown: " 'it is well established that a court may exercise its power to strike under section 1385 "before, during or after trial," up to the time judgment is pronounced.' " (Espinoza, at p. Supp. 8, citing Romero, supra, 13 Cal.4th at p. 524, fn. 11.)
In answer to these two cases that very specifically limit dismissal under Romero and section 1385 to prejudgment proceedings, defendant offers some very general language from Garner, supra, 244 Cal.App.4th 1113, that does not help him carry his burden to establish that the superior court erred when it determined it did not have jurisdiction. In Garner, the defendant appealed from his resentencing under Proposition 36, at which the superior court reduced the 25-year-to-life sentence for receiving stolen property (§ 496, subd. (a)) to six years, and then added three years for three prison term priors (§ 667.5, subd. (b)). The court had originally struck the punishment for the prison term priors pursuant to section 1385, subdivision (c)(1), in light of the third strike life term. The defendant appealed, arguing the court could not impose the previously stricken one-year term during resentencing under Proposition 36. The appellate court affirmed, citing a case that discussed recall and resentencing under section 1170, subdivision (d), and finding it "akin" to recall and resentencing under Proposition 36: " 'When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components.' " (Garner, at p. 1118, citing People v. Hill (1986) 185 Cal.App.3d 831, 834.)
Defendant, in his reply brief, contends the holding in Garner directly contradicts that in Brown, stating that the two courts "have reached . . . different conclusion[s]." We disagree. The courts in Brown and Espinoza both specifically held that courts have no jurisdiction to grant motions to dismiss under section 1385 and Romero after the imposition of judgment. Despite defendant's contention otherwise, the court in Garner did not hold that courts retain this power postjudgment. Therefore, we follow the holdings in Brown and Espinoza and conclude the superior court in the present case did not err in failing to strike defendant's remaining strike under section 1385 and Romero because it did not have jurisdiction to grant defendant's postjudgment motion.
Given that the trial court did not have jurisdiction to grant defendant's Romero motion, his other arguments regarding why the court should have granted it are moot.
DISPOSITION
The court's order denying defendant's motion under section 1385 and Romero is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. CODRINGTON
J.