Opinion
B162683.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. ROOSEVELT GOFFNEY, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Marc J. Nolan, Deputy Attorneys General, for Plaintiff and Respondent.
Roosevelt Goffneys pleaded guilty to narcotics related offenses and admitted prior felony convictions that were subsequently dismissed, thereby removing him from the sentencing provisions of the "Three Strikes" law. He unsuccessfully sought to have the court disregard his prior "strike" convictions so he would be eligible for Proposition 36 disposition (Pen. Code, § 1210.1). On appeal, he contends the dismissal of the "strike" prior convictions entitled him to mandatory probation and drug treatment under Proposition 36. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged appellant with possession of a controlled substance and possession of a smoking device. (Health & Saf. Code, §§ 11350, subd. (a), 11364.) The information also alleged that he had suffered two felony convictions, within the meaning of the Three Strikes law, and that he had served seven separate prison terms for a felony. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).)
Appellant pleaded guilty to the charges and admitted the prior strike convictions and the prior prison term allegations. At sentencing, he requested the trial court to dismiss his prior strike convictions not only to remove him from the purview of the Three Strikes law, but also to render him eligible for probation and drug treatment under Proposition 36 (Pen. Code, § 1210.1). The court dismissed the prior convictions under Penal Code section 1385, but declined to impose a Proposition 36 disposition.
The trial court denied appellants request for a certificate of probable cause. This appeal followed.
DISCUSSION
Appellant contends the dismissal of his strike felony convictions was for all purposes, thereby making him eligible for Proposition 36 disposition. We disagree in light of In re Varnell (2003) 30 Cal.4th 1132), which was issued after appellant filed his opening brief.
In the case of In re Varnell an information charged the defendant with possession of methamphetamine and alleged a prior strike conviction as well as a prior prison term enhancement. At a hearing, the defendant conceded that he was ineligible for mandatory drug treatment under Proposition 36 because he had been convicted of a serious felony and had failed to remain free of custody for the five years preceding his nonviolent drug possession offense. He urged the trial court to invoke Penal Code section 1385 to transform his eligibility. The court agreed to dismiss the alleged strike conviction but determined that it lacked discretion under section 1385 to make the defendant eligible for probation and treatment under Proposition 36. The court then sentenced the defendant to 16 months in state prison. (In re Varnell (2003) 30 Cal.4th 1132, 1135.)
The defendant petitioned this court for habeas corpus relief, arguing the trial court erroneously concluded it lacked the power under Penal Code section 1385 to dismiss his disqualifying strike conviction and make him eligible for Proposition 36 disposition. We agreed, holding that the trial court had the discretion under section 1385 to disregard certain historical matters (that is, a prior conviction) for purposes of imposing a particular sentence even though the defendants ineligibility for that sentence need not be specifically alleged in the information. This court granted the writ and ordered the trial court to reconsider its sentence. (Formerly In re Varnell (2002) 95 Cal.App.4th 205.)
Our Supreme Court reversed, concluding that "while a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for courts to use. Hence the trial courts dismissal of the `strike allegation in this case did not wipe out the fact of the prior conviction and the resulting prison term" that made the defendant ineligible for Proposition 36 disposition. (In re Varnell, supra, 30 Cal.4th 1132, 1138.) Thus, Penal Code section 1385 can be used to dismiss sentencing allegations, but not uncharged sentencing factors, such as the historical Proposition 36 disqualifying facts of appellants strike convictions, and recent criminality and prison custody. (Id. at pp. 1138-1139.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. and JOHNSON, J. --------------- Notes: We agree with the People that at the time of appellants sentencing, which occurred before the Supreme Courts In re Varnell decision, whether a trial court could invoke Penal Code section 1385 to disregard sentencing factors was an open question. As a result, the instant appeal could be viewed as contesting the trial courts sentencing discretion as opposed to attacking the validity of the plea itself, thus obviating the need for a certificate of probable cause. (See People v. Buttram (2003) 30 Cal.4th 773, 787.) However, any post-In re Varnell challenge to a trial courts failure to impose a Proposition 36 disposition in similar circumstances constitutes a challenge to the plea itself and necessarily requires a certificate of probable cause. (See People v. Panizzon (1996) 13 Cal.4th 68, 78-79.)