Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. Nos. SCD172181 & SCD177470, Frank A. Brown, Judge. Reversed with directions.
HUFFMAN, Acting P. J.
This is an appeal after a limited remand for resentencing was ordered following the first appeal. In January 2003, Brandon Armitage was charged in case number SCD172181 with of one count of residential burglary (Pen. Code, §§ 459, 460; count 1), two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1); counts 2 & 4), one count of discharging a firearm in grossly negligent manner (§ 246.3; count 3), one count of unlawfully owning or possessing ammunition for firearm (§ 12316, subd. (b)(1); count 5), and one count of aggravated trespass of occupied dwelling place (§ 602.5, subd. (b); count 6). In September 2003, Armitage was charged in case number SCD177470 with one count of residential burglary (§§ 459, 460; count 1), and one count of failure to appear on own recognizance (§ 1320.5; count 2). The trial court consolidated the two cases against Armitage for trial, and a jury subsequently convicted Armitage of both residential burglary charges, possession of a firearm by a felon, illegal possession of ammunition and firearm, and failure to appear while on bail. In a bifurcated proceeding, the court found Armitage had suffered two prior strikes (§§ 667, subds. (b)-(i), 1170.12); two prior serious felony convictions under section 667, subdivision (a)(1), and a prison prior conviction under section 667.5, subdivision (b). The court sentenced Armitage to an indeterminate prison term of 25 years to life on each count to run concurrently. On appeal, this court reversed the residential burglary conviction from January 2003 for insufficient evidence, affirmed the remaining convictions, and remanded the case to the trial court for resentencing in compliance with the three strikes law.
Statutory references are to the Penal Code unless otherwise specified.
In our prior opinion we found the sentence unauthorized, noted the relevant sections of the three strikes law concerning consecutive sentences for current convictions "not committed on the same occasion, and not arising from the same set of operative facts," and reminded the trial court of its discretion under People v. Garcia (1999) 20 Cal.4th 490 (Garcia) to dismiss prior convictions with respect to each count in order to achieve a sentence within the spirit of the three strikes law. (People v. Armitage (May 31, 2005, D043523) [nonpub. opn.].) On remand, the court resentenced Armitage to prison for a total term of 112 years to life, consisting of four consecutive 25-year-to-life indeterminate terms for his convictions, plus 10 years for the two serious felony priors and two years for the prison term allegation.
Because only one prison prior allegation was found true, only one year should have been added to Armitage's sentence in this consolidated case.
Armitage appeals seeking a second resentencing on grounds the trial court erred by (1) imposing consecutive 25-years-to-life sentences for the counts involving possession of a firearm and possession of ammunition for that firearm, (2) imposing separate restitution fines totaling in excess of $10,000, and (3) failing to recognize its discretion to dismiss prior convictions as to some but not all counts. We agree the trial court has not clearly exercised its discretion or correctly imposed restitution fines. We therefore reverse the sentence and again remand for resentencing.
The facts of the current offenses are fully set forth in our prior unpublished opinion and will not be repeated here. We have taken judicial notice of the record in the earlier appeal.
The issues raised by Armitage on appeal focus narrowly on the application of the three strikes law.
I
CONSECUTIVE TERMS
First, Armitage contends, and the Attorney General properly concedes, the trial court erred in imposing what it conceived to be mandatory consecutive 25-years-to-life sentences for the counts of possession of a firearm and ammunition for such firearm because the felony convictions arose out of the same set of operational facts.
A court must impose consecutive sentences when multiple third strike felonies are not committed on the same occasion and do not arise from the same set of operative facts. (People v. Hendrix (1997) 16 Cal.4th 508, 512.) However, if multiple felonies are committed on the same occasion or do arise from the same set of operative facts, the court may impose concurrent or consecutive sentences in the sound exercise of its discretion. (Id. at pp. 512-513, italics added.) As this court already discussed in its previous decision, the firearm and ammunition possession counts, which occurred on the same occasion and arose from the same set of operative facts as the January 2003 burglary count, may run concurrently. It is apparent from the record that the trial court and counsel believed sentences for these two counts had to be imposed consecutively. As the Attorney General concedes, and as we noted in our prior opinion, there is no mandatory requirement for consecutive sentences for these offenses. Accordingly, we find the trial court failed to recognize its discretion to impose concurrent sentences.
II
RESTITUTION
Armitage further contends, and the Attorney General concedes, that the trial court erred in imposing separate restitution fines because the two cases were tried together in a single jury trial. We agree.
As the Attorney General correctly concedes, the trial court imposed an illegal restitution fine upon Armitage for an unauthorized amount. Under subdivision (b)(1) of section 1202.4, the total amount of restitution for a "case" is $10,000. Any amount exceeding $10,000 in a single case is a sentence in excess of its jurisdiction. (See People v. Smith (2001) 24 Cal.4th 849, 852 (Smith).) Such legal error is not waivable and is subject to correction by this Court on appeal. (Id. at pp. 852-854.)
Here, the court imposed two restitution fines under section 1202.4 in the amount of $10,000 each. Because the court consolidated two separate cases (SCD172181 & SCD177470), and tried them together in a single jury trial, the restitution fine must not exceed $10,000. (People v. Ferris (2000) 82 Cal.App.4th 1272, 1277.) Accordingly, the unauthorized amount of restitution fines in excess of $10,000, must be stricken. (§ 1260; Smith, supra, 24 Cal.4th at p. 852.)
The Attorney General also correctly points out, a sentencing court which imposes a restitution fine under section 1202.4, subdivision (b), is mandated by section 1202.45 to impose "an additional . . . restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4," which is then suspended unless the individual's parole is revoked. Here, the court imposed two parole revocation fines against Armitage in the same amount as was levied under subdivision (b) of section 1202.4. Because the second parole revocation fine is in excess of the court's jurisdiction of $10,000, it must also be stricken.
The court is directed to amend the abstract of judgment to reflect the modifications in the restitution and parole revocation fines under sections 1202.4, subdivision (b) and 1202.45.
III
DISCRETION OF THE COURT TO DISMISS "STRIKES"
Armitage lastly contends the trial court misunderstood its discretion to dismiss prior convictions as to some but not all counts and therefore the 112-year sentence is erroneous. (See Garcia, supra, 20 Cal.4th 490). As we explain, the matter must again be remanded for resentencing because of the court's inability to recognize its authority to dismiss strikes as to some but not all counts.
Our Supreme Court has determined a trial court's decision not to strike a prior conviction under section 1385 is reviewed under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367.) The Supreme Court noted that when reviewing a decision under this standard, the court is guided by two fundamental principles. First, the burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. (Id. at p. 376.) Second, the decision should not be reversed simply because reasonable people might disagree. (Id. at p. 377.) Further, an appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. These principles establish abuse of discretion only when the decision is so irrational or arbitrary that no reasonable person could agree with it. (Ibid.) Specifically, abuse of discretion occurs when "a trial court . . . [fails] to strike a prior felony conviction allegation in limited circumstances[, such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation], [or where] 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce [ ] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Id. at p. 378.)
At the resentencing hearing, the court heard arguments from counsel, during which the court entered into a lengthy colloquy of perceived injustices resulting from the apparent inability to prescribe a sentence within the spirit of the three strikes law. Because the trial judge's inconsistent comments factor greatly into our decision, they are set out here at some length:
"THE COURT: I've read and considered the fourth appellate district decision, and I've also -- didn't have the benefit of -- when I did sentence Mr. Armitage last time, I didn't have the benefit of a probation report; so I just kind of made it up as I went, because it was a conviction following a jury trial. He wanted to be sentenced immediately.
[¶] . . . [¶]
"THE COURT: So Mr. Armitage wouldn't waive time for sentencing, so I just gave him 25-to-life, ran everything concurrent -- which was a mistake because, according to the fourth district court of appeal, what I should have done was exercise -- gone through the exercise of my discretion, as far as all the counts were concerned. So, I didn't do that because I wasn't even planning on sentencing him because I didn't have a probation report.
"So now I've got this recommendation, which is consistent with the three strikes law. And it was never my intent to strike the strikes, because I didn't think there was any justification to do that under the Romero case. And I still don't think I can, in light of Romero, justify it. And I'm sort of mystified, because now it looks like I have to give him -- instead of 25-to-life, I've got to give him -- if I follow the law and don't strike the strikes -- which was not my intent, to strike any strikes -- I guess 75-to-life, plus 13 years. Is that right?
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
[¶] . . . [¶]
"[DEPUTY DISTRICT ATTORNEY]: Well, I think the first sentence achieved what society and everybody else would be looking for.
[¶] . . . [¶]
"THE COURT: I'm perplexed because, you know, if it had just gone through, he would have been doing 25-to-life. And I suppose the department of corrections would call back and say, hey -- maybe they would have said something; maybe not. I don't know. But I don't know how, under Romero, if I'm supposed to pay attention to what the Supreme Court of the State of California says, -- how do I strike strikes?
[¶] . . . [¶]
"THE COURT: I mean, that's the law of California. And, you know, I think I voiced my thoughts on that a bunch of times. It's just sometimes I think it works injustice and sometimes I think it violates the [E]ighth [A]mendment; but that's just what I think, and it's not what the law is. It's my musings and nothing more.
"So [defense], help us out here. How do I avoid sentencing your client to 75-to-life, plus 13 years consecutive? How do I do that?"
Armitage's counsel responded that the court should dismiss at least one strike as to all the counts because a second strike sentence would still meet the goals of the court's original sentence of 25 years to life. The trial judge then stated in a lengthy dissertation:
"THE COURT: Okay. Look. To a fault, I have not been a fan of the three strikes law, the way it's written. To a fault. The first time I had a run-in was when Romero was up on appeal in from of the Supreme Court, and there was a young African-American guy that got caught with $30 worth of cocaine. And while Romero was pending in the Supreme Court, I said, you know, I have the power to strike a strike, and I struck it. And I gave the guy a year in jail. He had, like, a ten-year-old residential burglary. He's working two jobs, supporting his girlfriend and two kids, you know. And I got spanked for that. Then it turns out Romero says, well, I did have the power. But, nevertheless, I got spanked, which I didn't -- didn't enjoy.
"And I've often spoken in public and often on the record, in court, about injustices. And I've talked this over with other judges, and I've talked it over with [the] DA. And in speaking with [the DA], you know, she shared my concerns in a lot of regards. For example, the three strikes law as applied to all felonies, like simple possession. And, you know, I think, for example, philosophically speaking, if you have a guy with a heroin addiction -- or any drugs, for that matter -- and he's got a couple of strikes, chances are he's going to be faced with 25-to-life if he can't get rid of his addiction. And, so, I don't believe that the three strikes law should be applied across the board. But, you know, when the Supreme Court overruled the fourth district court of appeal and said, you know what? Judges like Judge Brown get to use their discretion, and they get to strike strikes when they think it's right. And I have to answer up. I don't have the last word on this.
"You know, in looking over Mr. Armitage -- looking over his criminal record, you know, it's dismal. And, you know, let me review it for the record. I mean, he's got this first-degree burglary when he was a juvenile in 1991. So that's the beginning of his record, as far as I know. After he committed that residential burglary, about 13 days later he did a vandalism, and he was handled by the juvenile courts. And then, apparently in '93, he had a conviction for auto theft, receiving stolen property. And then, in '95, just two years later, we have a grand theft, gun. And I guess that constituted his first strike; is that right?
[¶] . . . [¶]
"You know -- and I assume that he knew what the three strikes law was all about. Most people did. And then, a month later, he gets involved with this robbery, and he pled guilty to a second strike, which I think was a robbery. Am I right?
[¶] . . . [¶]
"THE COURT: So that's in '95. And then there was also, of these other charges, 245, 12022(b), 12022.7, personal use of a firearm, all that. Then, in '99, there's a DUI; and then, 2003, brandishing this weapon and vandalism again. And then I guess -- was this crime in 2002 or 2000 -- it must have been 2002. I don't know. November 2002 was the 417 and then this other incident.
"And, then, what's sad is he was offered seven years because the DA thought that would serve the interest of justice; is that right? And [prior defense counsel] -- I know him very well. He's a wonderful human being and a good lawyer and all that good stuff. And he's given you his best advice. And I understand being mad at the world. I don't know whether I tried to settle the case or not; I can't remember.
"But the case went to trial, and I vaguely remember there wasn't much that could be done, and that Mr. Armitage was convicted of all the charges as we know them. One residential burglary. And it was a strange set of circumstances. So -- but I don't know how I can, in good conscience, you know, strike these strikes.
"And a lot of times there's injustices that I see here. I think they're injustices. We had a guy, [John Doe]. And he touched two little boys, outside their clothing, inappropriately, got convicted of child molest, and he got a life sentence. And it had nothing to do with burglaries or -- you know, or the gross crimes that Mr. Armitage has done. Yet, [John Doe] ended up doing 50 years to life because the law says you don't get to do that. And he had no criminal history. But, that's the law. And he was 28 years old, but he was child-like. He was like a 14-year-old, and the victims were, you know, like 12 years old or whatever.
"So, you know, I don't think we have a perfect system. And I see sad things happen to people like [John Doe] and [Jane Doe], who had a chance to settle the case, and she would have done about six years in state prison. And she's doing 15-to-life for being a caregiver and having a child -- losing her temper and slamming a child, and the child died, you know. And she probably never even had a J-walking ticket and probably will never do anything the rest of her life that would hurt society. Santa Clause's wife. So I see these sad things. And I can't tilt with windmills; I can't change the Romero case or tweak things the way I want to. So I don't know.
"[Prosecutor] maybe you can tell me you've been touched by all this, and that the people of the State of California think that he ought to get something other than what the law requires that I give him, you know. I mean, I don't know how I can just turn a blind eye toward Romero, because the reason why I recited his criminal record is because its just on and on. It's like it won't stop."
Although this record reflects the court's apparent attempt to correctly apply its discretion regarding the ability to dismiss prior strikes under Romero, we cannot harmonize the court's lengthy comments as to why it could not exercise such discretion and was bound to impose consecutive 25-years-to-life sentences for each count with the belief that the court was fully cognizant of its discretion to dismiss strikes on a count-by-count basis under Garcia, supra, 20 Cal.4th 490. The record reflects what appears to be the trial judge's personal expressions of antipathy for the proposed sentence, frustration with the three strikes law, and empathy for Armitage. We find it difficult to reconcile the sentence in the earlier appeal, the judge's remarks in this case, and the sentence ultimately imposed by the court.
Regardless of the court's personal beliefs on the matter, it appears from the record that the court failed to properly exercise its discretion because it mistakenly believed it was foreclosed from doing so even after receiving guidance from this court providing instruction to the contrary. As set forth previously by this court, the trial court does not have to dismiss a "strike" as to the entirety of the case so that a defendant might avoid a third strike sentence. Rather, the court can impose a third strike sentence as to one count of the case before it, and may then impose a second strike or a determinate sentence for some or all of the remaining counts before the court. Simply stated, the court may, in the proper exercise of its discretion, impose a third strike sentence for one count, and a different sentence on the remaining counts.
For guidance of the trial court on remand, we offer the following as possible examples the court may consider. First, the court may impose a third strike sentence for the two possession convictions and then run those terms concurrently. (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6); People v. Hendrix, supra, 16 Cal.4th at pp. 512-513.) The court may also in its discretion, strike the punishment for the section 667.5, subdivision (b) enhancement. (See People v. Bradley (1998) 64 Cal.App.4th 386.) As to the remaining counts, the court may consider striking one or more strikes as to individual counts under Garcia, supra, 20 Cal.4th 490. If the court believes that a sentence of 25 years to life, plus 10 years for the section 667, subdivision (a)(1) enhancements satisfies the purposes of the three strikes law, it may impose other than third strike sentences on the remaining counts. Regardless of its ultimate choice of sentences, the trial court must make the record clear that it understands the scope of the discretion provided by Garcia and that it is making a knowing choice as to how to exercise that discretion.
Faced with inconsistent statements in the sentencing discourse, which do not allow this court to conclude the trial court understood the scope of its discretion, we cannot find the court knowingly exercised its discretion as directed by this court. By misinterpreting the holding of our unpublished opinion and the scope of its discretion to dismiss strikes on a count-by-count basis, the court prejudicially abused its discretion. We, therefore, remand the matter again for resentencing in light of Garcia, supra, 20 Cal.4th 490. If the trial court believes that a 111 or 112-year sentence is inappropriate "in light of the nature and circumstances of [Armitage's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, [so that he] may be deemed outside the [three strikes] scheme's spirit, in whole or in part" (People v. Williams (1998) 17 Cal.4th 148, 161), it should dismiss strikes as to those count(s) it deems appropriate and enter its written reasons in the minute order to support such determination. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 530-531.)
We do not express any opinion as to the sentence which should be imposed on remand. We only require the trial court to knowingly exercise its discretion.
DISPOSITION
The sentence is reversed and case remanded to the trial court for resentencing in accordance with the views expressed in this opinion.
WE CONCUR: NARES, J., AARON, J.