Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF05390
MORRISON, J.
An amended information charged defendant John Paul Corin with theft from an elder or dependent adult (Pen. Code, § 487, subd. (A); undesignated section references are to this code; count 2), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 4), elder abuse of a victim 70 years of age or older (§ 368, subd. (b)(2); count 5), and two counts of first degree burglary in the presence of the victim (§§ 459, subd. (a); 460, subd. (a); counts 1, 3). In connection with count 4, it was further alleged that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In connection with all counts, it was further alleged that defendant had previously been convicted of a felony (burglary (§ 459, subd. (b)) in two other cases (case Nos. SF04-504, SF04-469) within the meaning of section 1203, subdivision (e)(4).
Defendant entered a negotiated plea of no contest to count 2 as amended, that is, grand theft (§ 487, subd. (a)), count 3 (first degree burglary in the presence of the victim), and count 4 (assault by means of force likely to produce great bodily injury). Defendant admitted that counts 3 and 4 were violent and serious felonies. Defendant also admitted the infliction of great bodily injury allegation in connection with count 4. Upon the prosecutor’s motion, the court dismissed counts 1 and 5. Defendant also admitted that he violated felony probation in case Nos. SF04-504 and SF04-469 by committing the burglary offense as charged in count 3. Defendant entered his plea and admissions in exchange for a sentencing lid of seven years.
The court sentenced defendant to state prison for an aggregate term of seven years, that is, the midterm of four years for the burglary offense, concurrent midterms of two and three years for grand theft and the assault offense, respectively, and a consecutive three-year term for the great bodily injury enhancement. The court terminated probation in case Nos. SF04-504 and SF04-469 as unsuccessful with no additional sentence.
Three days after sentencing defendant, the court recalled the sentence pursuant to section 1170, subdivision (d). The court appointed new counsel for defendant to consider whether defendant should be allowed to withdraw his plea in view of defendant’s apparent understanding that a commitment to the California Rehabilitation Center (CRC) was a possibility.
New counsel did not file a motion to withdraw the plea but argued for CRC. The court concluded that defendant was ineligible for CRC and imposed the sentence previously imposed, that is, an aggregate state prison sentence of seven years. The court again terminated probation in case Nos. SF04-469 and SF04-504 as unsuccessful.
Defendant appeals. He contends the trial court erroneously determined that it did not have the discretion pursuant to section 1385 to commit him to CRC. We will affirm the judgment.
FACTS
The 22-year-old defendant burglarized the home of a 78-year-old female neighbor, taking several items including jewelry. Defendant’s fingerprints were found on several glass jars. The jars had been filled with change which was missing. The victim reported that her home had been burglarized several times before in the previous months.
One month later, the same victim found defendant in her car. When she confronted him, he ran away, appearing “stoned.” He came back later that day and entered her residence. He hid behind a bedroom door and when she entered the room, he pushed the door into her and knocked her down. She sustained a rib fracture. Her glass jars with coins and dollar bills were empty and car keys were missing.
A neighbor reported having seen defendant earlier in the day and he appeared to be under the influence of drugs. When deputies arrested defendant, he had a .152 percent blood alcohol content.
At the time of the offenses, defendant was on two grants of felony probation for two convictions of second degree burglary. Defendant reported that he had a problem with alcohol and was addicted to methamphetamine. He requested a CRC commitment. He claimed he had never received treatment for his drug and alcohol problems.
At the original sentencing hearing, defense counsel requested CRC commitment and that the court impose no more than six years. The court imposed seven years but later recalled the sentence and appointed new counsel.
Citing People v. Wilson (2002) 95 Cal.App.4th 198 (Wilson), new counsel argued that the court had discretion under section 1385 to stay imposition of an enhancement including the presence of the victim allegation so that defendant would be eligible for CRC. The prosecutor disputed the argument, citing section 1203, subdivision (k).
At the subsequent sentencing hearing, the court concluded that section 1385 did not permit it to ignore defendant’s statutory ineligibility pursuant to section 1203, subdivision (k). The court found it had discretion to stay imposition of the sentence for grand theft and the great bodily injury enhancement on the assault but no discretion to stay imposition of sentence for first degree burglary in the presence of the victim, rejecting defense counsel’s argument that “in the presence of the victim” was an enhancement rather than an essential element to establish the offense was a violent felony. The court concluded that in any event, section 1203, subdivision (k) prohibited the stay of execution of sentence for someone who is convicted of a violent felony while on felony probation. The court stated that it had reviewed People v. McGuire (1993) 14 Cal.App.4th 687 (McGuire) which discussed section 1203.07, subdivision (a)(11), “identical language” to that in “section 1203[, subdivision] (k).”
The court misspoke in referring to count 1; in context, the court obviously meant count 3, first degree burglary in the presence of the victim.
Section 1203.07, subdivision (a)(11) provides:
DISCUSSION
Welfare and Institutions Code section 3051 governs participation in CRC by a person convicted of a felony. A person who has been convicted of a violent felony, inflicted great bodily injury or sentenced to state prison for a term greater than six years, inter alia, is statutorily excluded from participation. (Welf. & Inst. Code, § 3052, subd. (a).) To commit a person to CRC, the court must suspend execution of sentence to commence commitment proceedings. (Welf. & Inst. Code, § 3051.)
Section 1203, subdivision (k) prohibits the trial court from granting probation or suspending imposition of or execution of sentence for “any person who is convicted of a violent felony, as defined in subdivision (c) of Section 667.5, or a serious felony, as defined in subdivision (c) of Section 1192.7, and who was on probation for a felony offense at the time of the commission of the new felony offense.”
Here, defendant was convicted of first degree burglary in the presence of the victim, a violent felony (§ 667.5, subd. (c)(21)). First degree burglary is a serious felony (§ 1192.7, subd. (c)(18) [“any burglary of the first degree”]). Defendant was convicted of assault with force likely to produce great bodily injury with an enhancement for great bodily injury, a violent felony (§ 667.5, subd. (c)(8)) and a serious felony (§ 1192.7, subd. (c)(8)). Defendant admitted that both offenses were serious and violent felonies. The court sentenced defendant to state prison for an aggregate term of seven years. Defendant was on felony probation for two counts of second degree burglary when he committed the current offenses. Under section 1203, subdivision (k) and Welfare and Institutions Code section 3052, defendant was ineligible for a CRC commitment.
Section 667.5, subdivision (c), provides, in relevant part, as follows:
Section 667.5, subdivision (c), provides, in relevant part, as follows:
Notwithstanding his statutory ineligibility, defendant contends that section 1385 allowed the court to refer him to CRC. Citing People v. Meloney (2003) 30 Cal.4th 1145, 1155, and Wilson, supra, 95 Cal.App.4th 198, 202, he argues that no express language in either section 1203, subdivision (k) or Welfare and Institutions Code section 3052 “operates to divest a court of its section 1385 discretion” to suspend execution of the “disqualifying factors” in order to refer him to CRC. Defendant does not specify what he means by disqualifying factors but argues the trial court was in error in concluding it “could not stay imposition of the sentence on count three and refer [defendant] to CRC” and that the court had discretion to “suspend all or part of [defendant’s] sentence . . . .” Because defendant challenged below the great bodily injury enhancement and the victim’s present allegation, we will limit our review of the same. (See People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
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 must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which 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 Attorney General argues that section 1203, subdivision (k), and Welfare and Institutions Code section 3052 “indicate a clear legislative mandate that Penal Code section 1385 is not authorized to force a result clearly not intended.” The Attorney General cites People v. Neild (2002) 99 Cal.App.4th 1223 (Neild).
Neild determined, based on legislative history, that in enacting section 1203, subdivision (k), the Legislature intended to eliminate the trial court’s discretion to grant probation to a person who is convicted of a violent or serious felony while on probation for a felony. (99 Cal.App.4that pp. 1225-1227; see also McGuire, supra, 14 Cal.App.4th at pp. 692-695.) We find Neild persuasive.
In any event, even assuming the trial court had authority under section 1385 to strike the “disqualifying factors” as defendant contends, the trial court would have been precluded from referring defendant to CRC. Assuming, without deciding, that presence of the victim which made the first degree burglary offense a violent felony was subject to the trial court’s authority to strike under section 1385 (see People v. Ortega (2000) 84 Cal.App.4th 659, 666 [power to dismiss includes power to strike factual allegation relevant to sentencing]), and the trial court did strike the allegation as well as the great bodily injury enhancement which made the assault with a deadly weapon offense a violent and serious felony, the trial court was still left with first degree burglary, a serious felony. Under section 1203, subdivision (k), when a defendant is convicted of a serious felony while on felony probation, the trial court is precluded from suspending execution of sentence which is required to commence commitment proceedings. Here, defendant was on two grants of felony probation, for two counts of burglary, when he committed the current first degree burglary. Under section 1203, subdivision (k), the trial court did not have the authority to suspend execution of sentence to commence commitment proceedings.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.
“(a) Notwithstanding Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: [¶] . . . [¶]
“(11) Any person convicted of violating Section 11351, 11351.5, or 11378 of the Health and Safety Code by possessing for sale cocaine base, cocaine, or methamphetamine, or convicted of violating Section 11352 or 11379 of the Health and Safety Code, by selling or offering to sell cocaine base, cocaine, or methamphetamine and who has one or more convictions for violating Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, or 11379.5 of the Health and Safety Code. For purposes of prior convictions under Sections 11352, 11379, and 11379.5 of the Health and Safety Code, this subdivision shall not apply to the transportation, offering to transport, or attempting to transport a controlled substance.”
“For the purpose of this section, ‘violent felony’ shall mean any of the following: [¶] . . . [¶]
“(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.”
“For the purpose of this section, ‘violent felony’ shall mean any of the following: [¶] . . . [¶]
“(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, . . . .”
Section 1192.7, subdivision (c), provides, in relevant part, as follows:
“As used in this section, ‘serious felony’ means any of the following: [¶] . . . [¶]
“(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice,
. . .”