Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF113463A, Richard J. Oberholzer, Judge.
Randy Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
In May 2006, a jury convicted appellant Bobby Lee Kinder of felony evasion of a peace officer (Veh. Code, § 2800.2; count 1), driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a); count 2) and driving while having a blood alcohol content of .08 percent or more (Veh. Code, § 23152, subd. (b); count 3); in a separate proceeding, the court found true allegations that appellant had suffered three “strikes”; and appellant admitted allegations he committed the count 2 and 3 offenses within 10 years of suffering three or more prior convictions of driving under the influence (Veh. Code, § 23550). In July 2006, the court struck two of appellant’s strikes and imposed a prison term of eight years eight months. That term consisted of the three-year upper term on count 1 and 16 months on count 2, with each of these terms doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)). The court stayed sentence on count 3 pursuant to section 654.
We use the terms “strike,” in its noun form, and “strike conviction” as synonyms for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law. Except as otherwise indicated, all further statutory references are to the Penal Code.
In July 2006, both appellant and the People appealed from the judgment. In September 2007, on appeal in case No. F050821 (first appeal), this court vacated the sentence and remanded for resentencing, holding that in striking two of appellant’s strikes, the trial court failed to comply with section 1385, subdivision (a).
In January 2008, at the resentencing hearing, the court, in accordance with the three strikes law, imposed consecutive sentences of 25 years to life on each of counts 1 and 2. The court again stayed sentence on count 3. The instant appeal followed.
On appeal, appellant’s sole contention is that the court abused its discretion in refusing to strike appellant’s strikes because, appellant asserts, the court mistakenly believed, based on this court’s opinion in the first appeal, that it had no discretion to do so. We will affirm.
BACKGROUND
Appellant has suffered three strike convictions: for first degree burglary in 1983, for rape in 1987 and for attempted rape in 1993. In our opinion in the first appeal, we noted that in 2006 the trial court, “[d]espite finding no mitigating circumstances and multiple aggravating circumstances,” struck two of appellant’s strikes and stated its reasons for doing so: “The trial court did state on the record that, if the two priors were not stricken, Kinder would likely serve the remainder of his life if prison for driving under the influence. The trial court stated ‘I think[,] in looking at all of the circumstances and the fact that he does have an alcohol problem[,] that putting somebody in prison for the rest of their life for alcohol is not what the vision of this law [the Three Strikes Law] is doing.’”
However, we noted, the trial court “did not set forth these reasons in its minute order granting the motion to strike the two ... strike[s],” and therefore, we held, the court failed to comply with section 1385, subdivision (a) and this failure “render[ed] the court’s order ‘ineffective’” and required that the sentence be vacated and the matter remanded for resentencing.
Section 1385, subdivision (a) provides, in relevant part: “The judge ... may, ... 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.”
In addition, “to provide some guidance to the trial court upon remand, we analyze[d] whether the trial court abused its discretion in granting the motion to strike.” In this analysis, we reviewed appellant’s criminal history, his background, character and prospects as reflected in, inter alia, multiple letters from appellant’s friends and family members, and the current offenses, and found, based on the record, the following: appellant had failed to refrain from criminal activity since his first felony conviction in 1983 and, indeed, was often in prison or jail, and when he was not, he violated probation and parole and committed multiple misdemeanor and felony offenses. We noted also that although appellant and his family members claimed that appellant’s convictions “stem from his addiction to alcohol,” “there is no indication that Kinder has undergone treatment for his alcoholism, even with free self-help groups such as Alcoholics Anonymous.”
We found that “[i]n many respects Kinder’s current offenses and prior criminal history [were] remarkably similar to [those] of the appellant in [People v. Williams (1998) 17 Cal.4th 148], in which our Supreme Court held that the trial court abused its discretion in striking a prior strike.” We stated: “In Williams, the appellant was charged with driving under the influence within seven years of three prior DUIs. [Citation.] He also had two strikes: an attempted burglary conviction and a rape conviction, both of which occurred 13 years ago. [Citation.] Finally, the appellant had 17 prior felony and misdemeanor convictions. [Citation]. [¶] As was the case in Williams, ‘[t]here is little about [appellant’s] present felony, or the prior serious and/or violent felony convictions, that is favorable to his position. Indeed, there is nothing. As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence; “the existence of such convictions reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable-but had failed or refused to learn his lesson” [citation]. As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation.’”
We concluded “that ‘in light of the nature and circumstances of [Kinder’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects,’ the trial court erred in granting the motion to strike the prior strikes.” Our opinion closed with the following statement:
“On remand the trial court may make new and additional findings that would support the grant of a motion to strike one or more prior strikes. However, on the current record, we conclude that the trial court could not strike the two prior strikes under Penal Code, section 1385, subdivision (a).”
At the outset of appellant’s January 2008 resentencing hearing, the trial court stated that this court’s opinion was “pretty directive”; noted that the defense had moved to strike appellant’s strikes; and invited argument.
Defense counsel responded, “[i]n light of the additional evidence[,] ... the Court now has a good enough reason to strike the strikes.” He told the court appellant had recently informed him that appellant, in prison, had voluntarily attended Narcotics Anonymous meetings, “studied a drug program” and “enrolled in a psychological program ....” Appellant himself addressed the court; he echoed these points and added that as part of the alcohol treatment program in which he was participating he could, upon his release from prison, “go into an in-home program ....” Counsel then argued that this court, at the time it was considering appellant’s first appeal, was not aware of these factors. He asserted further, “The issue here is what would be [appellant’s] prospects after he’s released,” and the factors cited above “are good prospects as to what will become of him after he’s released.”
The court responded: “Well, they’re prospects. But, again, I think the Appellate Court was saying, you know, you do anything but 25 years to life and we’re going to reverse this again. Because you have to proceed under 1385. And you’re going to have to show how it’s in the interest of justice to strike these things. And we don’t see anything here that is in the interest of justice. And we compare this to the Williams case. [¶] ... [¶] And that’s the guideline for you. Because there was nothing in the interest of justice there and we reversed that. [¶] That’s where I’m at. [¶] I mean, ... I see Mr. Kinder here in court. And we have the benefit of seeing him here and saying: Yeah, I think Mr. Kinder could go on and do something good with his life. But the Appellate Court is saying: No. You follow the law strictly. And the law, strictly, is this[:] [U]nless you come down and put down some specifics that are different than what occurred in the Williams case[,] [w]e’re going to reverse you if you come back again. I mean, that’s the clear message there. There’s no question about it. That’s the clear message. They want to do the sentencing on this case. And, you know, if that’s what they’re saying, it’s a futile waste of time to do anything other than that. Because I think what they are saying is that you don’t have the circumstances here that justify striking the strike pursuant to Section 1385. And that’s where we’re at.”
Defense counsel countered that this court’s opinion did not “expressly direct[]” the trial court to deny the motion to strike appellant’s strikes. The court agreed: “Well, they can’t. It doesn’t directly direct the Court. But they certainly are sending this message to the Court. [¶] And that’s fine. I think they have the prerogative to do that. [¶] ... [¶] They’re saying: This is what’s going to happen if we get it back. Because we don’t see anything here.”
At that point, the court considered whether Williams could be distinguished on the basis that in that case one of the priors the defendant sought to have stricken occurred 12 years before the current offenses, whereas in the instant case appellant committed two of the strike offenses more than 20 years prior to the current offenses. The court concluded, “I don’t think the difference between 12 years and 20 years would be deemed sufficient” because “12 years is a ... long way off, too, as is 20 years.”
Shortly thereafter, defense counsel again argued that this court’s opinion did not preclude the trial court from striking one or more strikes on remand. The court responded: “I don’t think they -- I don’t know. But legally, I don’t think they can come back and say the Court must impose a life sentence. [¶] I don’t think they can come back and say the Court must resentence under these guidelines. But -- I don’t think they can do that. And they haven’t done that. [¶] I agree with you, they haven’t done that. [¶] But as I said, the message is there.”
Shortly after that, defense counsel reiterated his argument that this court “left it open to the Court to find new reasons that would support the Court’s findings to strike the strikes.” The court responded, “I understand it.” Defense counsel then elaborated on this point, and concluded, “I’m asking the Court to base these rulings on those new findings that were not present at the last time we were here for sentencing.” The court then thanked defense counsel, and proceeded to sentence appellant. The court again found there were no circumstances in mitigation, cited several aggravating factors; and, as indicated above, imposed two concurrent 25 years to life terms.
DISCUSSION
As indicated above, appellant argues that the trial court abused its discretion in refusing to strike appellant’s strikes because, appellant asserts, the trial court incorrectly interpreted this court’s opinion in the first appeal to mean that it (the trial court) had no discretion to do so.
Section 1385 provides, in relevant part, “The judge or magistrate may, ... in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, the California Supreme Court concluded that section 1385, subdivision (a) “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.”
In determining whether to strike a prior conviction, a court must consider “‘“both of the constitutional rights of the defendant, and the interests of society represented by the People ....”’” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) “The touchstone for [the] determination [of whether to strike a strike conviction] is 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 [Three Strikes] 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.’ [Citations.]” (People v. Cluff (2001) 87 Cal.App.4th 991, 997-998, quoting People v. Williams, supra, 17 Cal.4th at p. 161.)
“[A] trial court’s failure to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 should be reviewed for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 376.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances,” including “where the trial court was not ‘aware of its discretion’ to dismiss ....” (Id. at p. 378.)
As indicated above, this court held, in the first appeal, that on the record before it, the striking of appellant’s strike convictions would constitute an abuse of discretion, but on remand the trial court could “make new and additional findings that would support the grant of a motion to strike one or more prior strikes.” Appellant contends the trial court misunderstood this, and mistakenly concluded it was precluded from striking his strikes on remand. He bases this contention on three of the court’s statements: (1) “I think the Appellate Court was saying, you know, you do anything but 25 years to life and we’re going to reverse this again”; (2) “[the court of appeal] want[s] to do the sentencing on this case[,] [a]nd .... [(3)] if that’s what they’re saying, it’s a futile waste of time to do anything other than [impose a life sentence].”
Taken literally and out of context, these statements appear to support appellant’s position. However, the trial court also expressly indicated at three different points that it understood this court’s directive that although the record on appeal was insufficient to support the striking of any strike convictions, the trial court could do so if it made sufficient “new and additional findings.” First, in response to defense counsel’s argument that this court did not “expressly direct” the imposition of sentence under the three strikes law, the trial court responded that the court of appeal “can’t” do so, and that this court’s opinion in the first appeal “doesn’t direct the court.” Second, the court stated, “I don’t think they [the court of appeal] can come back and say the Court must impose a life sentence,” and “they haven’t done that.” Finally, at the close of argument on the issue, in response to defense counsel’s reiteration of the point that the court of appeal “left it open to the Court to find new reasons that would support the Court’s findings,” the trial court responded, “I understand it.”
Moreover, when the defense asserted that appellant had participated in various drug, alcohol and “psychological” treatment programs, and defense counsel cited this as new information in support of the claim that appellant had “good prospects” upon his release, the court responded, “Well, they’re prospects.” The court, by pointedly omitting the adjective “good” in reference to appellant’s prospects, implied that those prospects did not justify appellant being “deemed outside the [Three Strikes] scheme’s spirit, in whole or in part ....” (People v. Williams, supra, 17 Cal.4th at p. 161.) Thus, the record indicates that the trial court, consistent with this court’s directive and the framework for analysis set forth in Williams, considered information not before this court on the first appeal and found this information did not justify “new and additional findings” that would support the striking of one or more strike convictions.
The court’s statements cited by appellant must be interpreted in light of the entire record, including the court’s response to the defense argument concerning appellant’s prospects, and the instances cited above in which the court expressly indicated it understood this court’s opinion on the first appeal did not preclude the striking of appellant’s strikes. Considered as a whole, the record establishes the court understood and exercised its discretion and concluded that it would be “futile” to strike a strike, not because it had no discretion to do so, but because the striking of appellant’s strikes was not legally justified.
DISPOSITION
The judgment is affirmed.