Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. Michael K. Kellogg, Judge. Reversed with directions. Los Angeles County Super. Ct. No. LA052844
Steve Cooley, District Attorney, Patrick D. Moran and Jennifer C. McDonald, Deputy District Attorneys, for Plaintiff and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Respondent.
ASHMANN-GERST, J.
The People of the State of California (the People) appeal the orders setting aside a Penal Code section 667.5, subdivision (b) allegation and striking a prior conviction alleged pursuant to the three strikes law from a felony complaint (§§ 667, subds. (b)-(i); 1170.12). They contend that after taking a plea to the charge contained in a felony complaint, (1) the trial court erred by failing to take an admission to the section 667.5, subdivision (b) allegation, and (2) the trial court failed to comply with section 1385 when it struck the prior conviction alleged pursuant to the three strikes law.
All further statutory references are to the Penal Code unless otherwise indicated.
The contentions are persuasive, and we reverse the orders under review.
FACTS
The People filed a felony complaint alleging that respondent Jesus Javier Basulto (defendant) committed a July 5, 2006, attempted second degree commercial burglary. (§§ 664, 459.) The felony complaint additionally alleged that defendant had a prior conviction that would enhance his sentence: on November 20, 2003, in case No. LA044197, he was convicted of a serious felony, robbery (§ 211). The information alleged that defendant had served a prior separate prison term after this conviction (§ 667.5, subd. (b)) and that the conviction triggered the three strikes sentencing scheme (§§ 667, subds. (b)-(i), 1170.12).
The trial court had a preconviction probation report prepared for defendant. It disclosed that defendant was 25 years of age. On July 5, 2006, Los Angeles Police Officers saw defendant standing at the front door of the California Liquor Store in Los Angeles holding a trash can. Defendant looked in the officers’ direction and ran to a parked pickup truck. He tossed the trash can into the bed of the truck and ran westbound down an alley. The officers pursued defendant, but lost him. The officers then returned to the truck, and saw defendant sitting in its driver’s seat. The officers arrested defendant. The liquor store was currently closed, having suffered damage in a March 2006 electrical fire. Despite the fire damage, the owner had continued to store liquor bottles inside the store.
The probation report contained appellant’s criminal history. As a juvenile, in 1998, defendant had a sustained petition for possessing a dangerous weapon. (§ 12020, subd. (a).) As an adult, in 2001, defendant obtained a deferred entry of judgment after he was charged with possessing narcotics paraphernalia. That same year, he was convicted of driving with a blood alcohol level over 0.08 percent and driving with a revoked driver’s license. He was granted probation, probation was later revoked, and he spent 180 days in the county jail. In 2003, he was convicted of robbery and sentenced to two years in state prison. Defendant was on parole for the robbery when he was arrested for the current attempted burglary. In the probation report, the probation officer recommended an upper-term prison commitment.
Prior to the preliminary hearing, the magistrate gave defendant an indicated sentence. If defendant pled guilty, the magistrate would strike the allegation of robbery that triggered the three strikes sentencing scheme and impose an upper term of 18 months for the attempted burglary. The 18-month term could be served concurrently to the term defendant would be serving for a violation of parole. The prosecutor interjected that for the record, the People were objecting to the trial court’s offer to strike the prior conviction allegation.
The defendant agreed to the offer made by the magistrate. The magistrate advised defendant of the requisite constitutional rights and took a no contest plea. Defendant admitted the prior conviction of robbery in case No. LA044197. In the same proceeding, now presiding as the trial court, the magistrate/trial court sentenced defendant to state prison for 18 months. The magistrate/trial court said that it was exercising its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the robbery conviction and it was striking the prior conviction for the purpose of sentencing. It acknowledged that the People were objecting to the order striking the prior conviction.
DISCUSSION
Essentially, the People are complaining that the magistrate/trial court improperly negotiated a plea agreement with defendant. We agree.
The court in People v. Vergara (1991) 230 Cal.App.3d 1564, 1567 explained, plea bargaining requires the consent of the People. However, where the defendant “‘plead[s] to the sheet’” (People v. Marsh (1984) 36 Cal.3d 134, 140), or obtains an indicated sentence and enters pleas to all charges and admits all allegations in the felony complaint or information, the magistrate or the trial court may give a defendant an indicated sentence and then accept the plea and/or plea and admissions. With a plea to all charges and allegations, sentencing is within the exclusive province of the judiciary. (People v. Turner (2004) 34 Cal.4th 406, 418–419 [contrasting plea bargaining with the trial court’s power to give an indicated sentence].)
Also, the California Supreme Court in Romero, supra, 13 Cal.4th 497, held the three strikes law did not remove or limit the trial court’s section 1385 power to strike sentencing allegations. That court settled that in a three strikes case, the trial court can, on its own motion and over the prosecutor’s objection, strike a prior conviction allegation in furtherance of justice. (Romero, supra, at pp. 504, 529–530.) However, the trial court’s sentencing discretion is limited. (Id. at p. 530.) In exercising its discretion, the trial court must consider both the constitutional rights of the defendant and the interests of society represented by the People. (Ibid.)
The court in People v. Garcia (1999) 20 Cal.4th 490, quoting from the decision in Romero and other decisions, summarized the law with respect to striking a prior conviction. It reiterated that a trial court may not strike a sentencing allegation solely to accommodate judicial convenience or because of court congestion. Nor may a trial court strike a sentencing allegation simply because the defendant pleads guilty or when it is guided solely by a personal antipathy for the effect that the three strikes law would have on a defendant, while ignoring the offender’s background, present offenses and other individualized considerations. (People v. Garcia, supra, at pp. 497–498.)
The court in People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony) said: “Consistent with the language of and the legislative intent behind the three strikes law, [the court has] established stringent standards that sentencing courts must follow in order to find such an exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ ([People v.] Williams [(1998)] 17 Cal.4th [148,] 161.)” (Accord, People v. Garcia, supra, 20 Cal.4th at pp. 498–499.)
As the court in Carmony explained, “‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)
With these legal principles in mind, we find errors in the procedure the magistrate/trial court used to take the plea and sentencing. At the time of the plea, the magistrate/trial court engaged in improper plea bargaining with defendant because it had defendant enter his plea to only a portion of the charge and allegations. The magistrate/trial court had unfettered discretion to sentence defendant as it did only where it gave an indicated sentence and then took a plea to all charges and admissions to all allegations. Consequently, there was error in failing to require defendant as a condition of the indicated sentence to also admit the service of a separate prison term as part of the indicated sentence procedure.
The magistrate/trial court also erred because at sentencing it struck the finding on the three strikes prior conviction for the purpose of sentencing. Utilizing such a reason for striking a prior serious felony conviction is no different than exercising its discretion to dismiss the finding of the prior conviction because a defendant has pled guilty. Such a reason does not meet the requirement of demonstrating extraordinary reasons by which the career criminal can be deemed to fall outside the spirit of the three strikes law. (Carmony, supra, 33 Cal.4th at pp. 377–378.) Further, for a valid section 1385 dismissal, “‘[i]t is not enough that . . . the reporter’s transcript may show the trial court’s motivation; the minutes must reflect the reason “so that all may know why this great power was exercised.’” [Citation.]” (Romero, supra, 13 Cal.4th at p. 531.)
Accordingly, we reverse the orders under review. Upon remand, the trial court shall permit defendant to withdraw his plea of no contest with admissions, should he so choose.
DISPOSITION
The orders under review are reversed.
We concur: BOREN, P. J., CHAVEZ, J.