Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline H. Nguyen, Judge., Los Angeles County Super. Ct. No. GA072416
Steve Cooley, District Attorney, Brentford Ferreira and Beth Widmark, Deputy District Attorneys for Plaintiff and Appellant.
Michael P. Judge, Public Defender, Albert J. Menaster, Erin A. Stanford and Robin Bernstein-Lev, Deputy Public Defenders for Defendant and Respondent.
ASHMANN-GERST J.
The People appeal from the judgment entered upon the convictions of Derrick Dorsey after his plea of no contest to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), count 1) and being a convicted person with a concealed weapon in a vehicle (§ 12025, subd. (a)(1), count 2). Defendant admitted one prior felony strike within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and one prior prison term within the meaning of section 667.5, subdivision (b). The trial court granted defendant’s Romero motion, striking 14 of his 15 alleged prior felony strikes, and sentenced him as a two-striker to an aggregate state prison term of seven years. The People contend that (1) the trial court abused its discretion in granting defendant’s Romero motion, and (2) the trial court improperly engaged in plea bargaining with defendant.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
As the issues raised in this appeal pertain only to sentencing, and this matter was concluded by plea, we provide only a cursory statement of the facts taken from the preliminary hearing transcript.
Facts
On February 20, 2008, at approximately 11:30 a.m., Alhambra Police Department Detective Kevin Laing was in plainclothes, driving an unmarked car on Valley Boulevard, in the City of Alhambra. He saw codefendant Corey Terrel Williams (Williams) peeking around a corner and looking across the street at the Mega Liquor Store and defendant walking in front of that store. Detective Laing drove around the block and back to Valley Boulevard where he saw Williams sitting in the passenger seat of a green Ford Escort and defendant slowly jogging toward it, enter and drive away. After unsuccessfully trying to follow them, Detective Laing parked near the liquor store. Within minutes, the Escort passed by and entered a Jack-In-The-Box parking lot, where it stopped, defendant got out, looked up and down Valley Boulevard several times, and then returned to the car and drove away.
Williams is not a party to this appeal.
Based on these observations, his experience as a police officer, his knowledge that two African-American males in a green vehicle had previously robbed the same liquor store, and that defendant and Williams were African-Americans, Detective Laing believed the conduct he observed was consistent with defendant and Williams familiarizing themselves with the area before committing a robbery. He therefore called for a marked patrol car to conduct a traffic stop of the Escort.
When the Escort was stopped, the officers were told that defendant was on parole for robbery. Detective Laing approached the car and saw the hand grip of a gun protruding from under what appeared to be a beanie on the front passenger floorboard. A search of the car uncovered a BB gun, with the top colored to look more like a real firearm, a ski mask, a pair of rubber gloves and one cloth glove, two sets of handcuffs, and, on the driver’s side floorboard, a zipped duffle bag containing a loaded handgun.
The same day, a Mega Liquor Store employee saw two African-American men walk separately past the store four or five times within an hour. A surveillance video from the store showed a person who looked like defendant walk by the store in the morning and someone appearing to be Williams look back at the store. A cellular phone recovered from the defendants showed numerous communications between defendant and Williams and an incomplete text from defendant to Williams at 4:40 a.m., on February 20, 2008, stating, “Get up. Ready for two on one on V-A-L....”
The charges
At the conclusion of the preliminary hearing, the trial court stated: “I don’t think anybody can reasonably dispute... that Mr. Dorsey and Mr. Williams were... up to no good.... I [also] can’t ignore the items recovered in the car.” “There’s no innocent explanation for the driving pattern in the neighborhood, which the court believes is highly suspicious. I think the text message is significant, even though it [was a] failed communication, because it shows the level of coordination between the two of them.... There is inferentially sufficient evidence to believe that there was an agreement to probably commit some crime.... I’m not sure what that crime is. And in all likelihood it’s a robbery of something.”
The trial court nonetheless dismissed the conspiracy to commit robbery count because it was “still not convinced that [defendants] were there to rob the Mega Liquor Store. They were there to do something and it wasn’t good, but [the trial court] just d[id]n’t know if there [was] sufficient evidence to prove that the object of the conspiracy was that particular location.” It held defendant to answer the charges of being a felon in possession of a firearm and a convicted person with a concealed firearm in a vehicle.
The information alleged the above-mentioned two firearm charges against defendant and 15 prior felony strikes. Fourteen were for robbery and one for attempted robbery. All of the priors, except one robbery conviction, were incurred in one action. Three prior prison terms within the meaning of section 667.5, subdivision (b) were also alleged.
Defendant’s criminal history
Defendant’s criminal history, according to the probation report, was as follows: (1) In October 1988, when he was 23 years old, he was arrested for robbery but convicted of misdemeanor carrying a loaded firearm in a public place (§ 12031, subd. (a)), placed on summary probation, and given 20 days in jail. (2) Less than a year later, defendant was convicted of 13 counts of armed robbery, one count of attempted robbery, and one count of assault (§ 245, subd. (a)(1)). Eleven of the counts charged use of a gun and three assaults involved firing the gun at a number of victims. Defendant was sentenced to prison for 31 years four months of which he served 17 years before his release on parole in 2006. (3) While in prison, defendant was convicted of possession of a controlled substance (§ 4573.6) and sentenced to 16 months consecutive to his earlier sentence. (4) Defendant was arrested for his current crime while on parole. The probation report found that defendant was “a dangerous menace to society, and neither suitable for continued parole nor probation supervision.”
The transcript of the 1989 sentencing hearing in case No. A-741078 indicates that defendant was actually convicted of 11 robberies, two attempted robberies and three assaults.
The armed robberies involved large sums of money never recovered, took place over a three-month period, on separate days, and involved at least 10 different incidents. The trial court found that the robberies were carefully planned to maximize the profitability to defendant, and was “satisfied [defendant was] a sophisticated robber.”
Romero Motion and Plea
Defendant filed a Romero motion, seeking to have his prior felony strikes dismissed on the grounds that (1) the current offense was minor, (2) if the trial court were to strike all but one of the priors, a lengthy sentence would still be imposed and defendant would remain in prison until he was 50 years old, (3) defendant’s prior convictions arose from a single period of aberrant behavior, as all of his strikes were incurred in the same year, (4) his crimes were related to drug addiction, (5) his criminal history does not include violence, (6) defendant cooperated with police, and (7) he had the support of his family and church.
At the Romero hearing, the trial court considered the seriousness of the current offense, stating: “I won’t characterize [the current offense] as minor because clearly it’s an important condition of the defendant’s prior convictions, and given the nature of the prior convictions, he cannot possess a firearm—But, nevertheless, having heard the evidence presented at the preliminary hearing,... there was no indication as to whether it was going to be used in support of the crime charged....”
The trial court then stated: “I had explored with counsel whether there were additional counts that could be imposed, and [the prosecutor] actually indicated that there is a possession of ammunition count that could be added, and I would encourage the People to amend the information and the act of the charge. [¶] Because in looking at the totality of the circumstances and the lengthy sentence that will be imposed, if the defendant were prepared to plead and resolve this case, then, the court would be inclined to grant the Romero motion and impose the maximum sentence that is permitted, once that motion is granted. [¶]... [¶] I don’t disagree with the People’s assessment that a sentence in the double digit would be the appropriate sentence, given the seriousness of the underlying crimes. [¶] He had stayed crime-free for a period of two years, but it’s one of those situations where it’s either the eight years, four months or 26 years. There is nothing in between that would be appropriate to the case.” The trial court continued the matter until the next day to give the prosecutor the opportunity to discuss adding the additional count with his superiors.
In its minute order, the trial court indicated its tentative ruling to grant the Romero motion “based on the grounds that the sentence without striking the priors of 26 years to life does not match the crime even though serious of a felon with a loaded weapon. The court also took into consideration the fact that the defendant stayed crime free for 2 years. Therefore, if the People amend the information and add a charge of carrying ammunition and the defendant pleads to that charge for a sentence of 8 years and 4 months, the court will move to grant the Romero motion.”
When the hearing resumed the next day, the trial court noted that the People were unwilling to amend the information as the court had suggested, but that defendant was willing to resolve the case by striking all but one of the prior strikes and prior prison terms and receiving a seven-year sentence. Defendant pled no contest to the gun charges and admitted one prior strike and one prior prison term. The trial court then granted his Romero motion, striking all but one of the prior felony strikes and prior prison terms, stating in its minute order: “The court finds that while possession of a loaded gun is [a] serious offense, it appeared that the defendant never removed the gun from the bag or vehicle, there are no facts which point to an attempt to use the gun found on the defendant. The court finds that the defendant has been crime free for two years prior to this arrest. The court finds that the crime of possession of a loaded gun as charged in this case does not match the sentence of 26 years to life that the court would have to impose if not stricken.”
The trial court sentenced defendant on count 1 to the upper term of three years, doubled as a second strike. It imposed and stayed the same sentence on count 2. It then sentenced defendant to an additional year under section 667.5, subdivision (b).
DISCUSSION
I. Romero motion
A. Contention
The People contend that the trial court abused its discretion in granting defendant’s Romero motion because his current crime and background “place him squarely within the [spirit of the] Three Strikes law.” The People argue that his crime indicates that defendant was up to no good, that he was the driving force behind the crime, as he was the driver of the car and had the loaded handgun under his seat, and that he had spent virtually his entire adult life in prison. We agree.
B. Applicable principles
Section 1385 provides in part: “The judge... 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.” (§ 1385, subd. (a).) Romero held that trial courts have authority to strike a prior conviction pursuant to section 1385. In deciding whether to do so, the trial court must take into account the defendant’s background, the nature of his current offense and other individualized considerations. (Romero, supra, 13 Cal.4th at p. 531.) Determining what constitutes “‘in furtherance of justice’” entails consideration “‘“both of the constitutional rights of the defendant, and the interests of society represented by the People,...”... At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.”’” (Id. at pp. 530-531.)
Thus, in deciding whether to strike a prior conviction, “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.)
But striking a serious felony is an extraordinary exercise of discretion and is reserved for extraordinary circumstances. (See People v. Philpot (2004) 122 Cal.App.4th 893, 905.) It only occurs when reasonable minds could not differ that the criminal falls outside the spirit of the three strikes scheme. (See People v. Carmony (2004) 33 Cal.4th 367, 378.) “Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Ibid.) This case does not present one of those rare and extraordinary circumstances justifying dismissal of a prior strike.
C. Defendant was not outside the spirit of the three strikes law
Defendant does not fall outside the spirit of the three strikes law. The circumstances of the current offenses place him squarely within that scheme. He was arrested casing a liquor store, armed with a loaded handgun and, as the trial court found, clearly “up to no good.” He was on parole at the time. The intended offense, which was not accomplished because of the intervention of the police, appears to have been the same as those for which he had previously served 17 years in prison.
Defendant’s background, character and future prospects presented a bleak picture. He had been in prison for most of his adult life for offenses involving the use of a firearm. He showed little respect for authority, as he was convicted of a drug offense while in prison and committed the current offenses while under the supervision of a parole officer. The facts surrounding the current offense strongly suggest that defendant was about to resort to his prior penchant to commit robbery.
The trial court made three findings in support of its decision to grant the Romero motion; (1) while carrying a loaded gun is serious, it does not appear that defendant ever removed it from the bag, (2) a 26-years-to-life sentence does not match the crime, and (3) the defendant had been crime free for two years. These findings are not supported by the evidence or even by the trial court’s own statements.
1. Seriousness of crime
The trial court concluded that defendant’s offense was not aggravated because the loaded handgun he had with him was not removed from the bag it was in. This conclusion ignores that defendant, who was on parole, was driving the car with an accomplice and casing a liquor store that had been recently robbed by two African-American men in a similarly colored car. When defendant’s car was stopped and searched, police recovered a BB gun with the top colored to look more like a real firearm, a ski mask, a pair of rubber gloves and one cloth glove, two sets of handcuffs, and on the driver’s side floorboard, a zipped duffle bag containing a loaded handgun, robbery-related paraphernalia strongly suggesting a serious and nefarious plan was underway. Defendant’s cell phone contained a partially sent text message reinforcing this conclusion.
The finding that the crime was not that serious was unsupported by the trial court’s own statements that no one “can reasonably dispute... that [defendant] and Mr. Williams were... up to no good” and that there was “no innocent explanation for the driving pattern in the neighborhood, which the court believes is highly suspicious.” The trial court stated that it could not “ignore the items recovered in the car” and the significant text message which was “inferentially sufficient evidence to believe that there was an agreement to probably commit some crime.... [likely]... a robbery of something.” Having drawn these fully supported conclusions regarding the current offense, there was little justification for considering the fact that the gun had not yet been removed from its bag as justification for dismissing prior strikes.
2. Sentence matching crime
The trial court concluded that a 26-years-to-life sentence was disproportionate to the seriousness of the offenses of which defendant was convicted. However, the seriousness of those offenses must be evaluated in the circumstances in which they occurred. As discussed above, the evidence indicated that the possession of the firearm was merely the precursor to even more serious offenses that were derailed only by defendant’s arrest. Additionally, the severity of the punishment is also based upon defendant’s recidivism. He had committed more than a dozen previous armed robberies, shooting at victims to facilitate his escape. The trial court failed to mention the impact of his prior offenses on the propriety of the 26-years-to-life sentence, stating only that that sentence did not match the firearm convictions.
Even the trial court believed that a longer sentence than the seven-year sentence it meted out was appropriate. In discussing plea options, it noted: “I don’t disagree with the People’s assessment that a sentence in the double digit would be the appropriate sentence, given the seriousness of the underlying crimes.” (Italics added.) The trial court even attempted to have the prosecution amend the information to add another count so that it could impose a longer two-strike sentence of eight years four months. When the prosecutor declined to amend, the trial court nonetheless offered defendant the lower seven-year sentence.
3. Crime free period
In making its ruling, the trial court also relied upon the fact that defendant had been crime free for a period of two years. We find that period insignificant when considered in conjunction with the facts that defendant had been in prison for most of his adult life, was just released from prison two years before the charged offense and was on parole during the entire two-year period. One can hardly have confidence that this comparatively brief, crimeless period was an adequate predictor of defendant’s future prospects.
II. Trial court’s improper plea bargaining
The trial court stated: “[I]f the defendant were prepared to plead and resolve this case, then, the court would be inclined to grant the Romero motion.” When defendant was uncertain how many strikes he would be pleading to, the trial court explained that he would be pleading to only one prior strike and that all of the others would be dismissed. The trial court also sought to have the prosecution amend the complaint to add a count so as to increase the maximum sentence it could impose if it dismissed all but one of the prior strikes, in order to fashion a plea arrangement. When the prosecution declined to do so, the trial court completed the plea arrangement anyway, with the lower sentence, over the prosecution’s objection.
The People contend that the trial court improperly engaged in plea bargaining with defendant. The People argue that a defendant’s desire to plead is extrinsic to a decision to dismiss under section 1385. (People v. Ramos (1996) 47 Cal.App.4th 432, 435 [trial court abused its discretion to dismiss “‘strike’” by doing so simply to secure defendant’s promise to plead no contest to charges before court], disapproved on other grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11; Romero, supra, 13 Cal.4th at p. 531.)
While we are troubled by the extent of the trial court’s involvement in the plea bargaining process, in light of our conclusion that the trial court abused its discretion in granting defendant’s Romero motion, we need not resolve that issue here.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to vacate its order dismissing the prior felony strikes and prison terms, to vacate the sentence, and to permit defendant to withdraw his no contest plea and admissions of the prior felony strike and prior prison term.
We concur: BOREN P. J, DOI TODD J.