Opinion
F041654.
7-24-2003
THE PEOPLE, Plaintiff and Appellant, v. LEONARD LEE MITCHELL, Defendant and Respondent.
Phillip J. Cline, District Attorney, Don H. Gallian, Carol B. Turner, Assistant District Attorneys, and Barbara J. Greaver, Deputy District Attorney, for Plaintiff and Appellant. Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Respondent.
On March 6, 2002, Leonard Lee Mitchell was caught shoplifting three bottles of tequila from a Food-4-Less store in Visalia. He was arrested and charged with petty theft by a person with a prior theft conviction (or, in this case, with three such prior theft convictions). (Pen. Code, §§ 484 , 486, 487, 488, 666.) It was also alleged that Mitchell had suffered seven prior violent or serious felony convictions within the meaning of the three strikes law ( § 1170.12), for which he had served three prior separate prison terms for purposes of the one-year enhancement provisions in section 667.5, subdivision (b). The prior conviction and prior prison term allegations stemmed from three earlier cases:
Except where noted, all further statutory citations refer to the Penal Code.
In 1984, in San Francisco County, Mitchell was convicted of — and sentenced to a 10-year prison term for — two counts of attempted murder (§§ 664/187), one count of first degree burglary (& sect; 459), one count of robbery of an inhabited dwelling (former § 213.5), one count of aggravated assault (§ 245, subd. (a)(1)), and one count of mayhem (§ 203). In 1990, in Tulare County, Mitchell was convicted of — and sentenced to a three-year prison term for — one count of grand theft (former § 487.1). And in 1992, again in Tulare County, Mitchell was convicted of — and sentenced to a 10-year prison term for — one count of armed robbery (§§ 211, 12022, subd. (b)).
According to the probation officers sentencing report, Mitchell actually had been convicted of not one, but two counts each of robbery and aggravated assault.
Mitchell pleaded not guilty to the theft charge, and denied the allegations. He also filed a motion asking the court to dismiss the prior conviction allegations in the interest of justice, on the ground a 25-to-life sentence under the three strikes law for shoplifting would amount to cruel and unusual punishment. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628 (Romero); § 1385, subd. (a).) The prosecutor opposed the request.
The court granted Mitchells motion, in part. At a change of plea hearing on July 11, 2002, the court said:
"All right. Now look, the Court has indicated that if the defendant enters a plea to these charges and special allegations, I am going to dismiss all but one of the strikes and sentence him to an aggravated term of six years, and then an additional three years by reason of the special — prior prison special allegations for a total of nine years.
"Its clear to the Court that the defendant is a violent recidivist felon. Thats clear from his record. Nevertheless, the Court feels it would be cruel and unusual punishment to impose a life sentence for, as I understand, this was a theft of two bottles of liquor."
Mitchell waived his trial rights and pleaded "no contest" to both the theft charge and the prior conviction and prior prison term allegations.
The court thereafter imposed the indicated sentence. It vacated all but one of the strike findings "on the basis of the trivial nature of the current offense." It imposed the upper term of three years for the theft offense, doubled it under the three strikes law, and then added three consecutive one-year prior prison term enhancements, for a total of nine years in state prison. The People have appealed.
DISCUSSION
A trial court may, in the furtherance of justice, dismiss an allegation or vacate a finding that the defendant has previously been convicted of a violent or serious felony within the meaning of the three strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) But the courts power in this regard is limited, and must be exercised in strict compliance with section 1385, subdivision (a). (Ibid.) A court abuses its discretion, for example, if its decision is "guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, while ignoring defendants background, the nature of his present offenses, and other individualized considerations. [Citation.]" (Id. at p. 531.)
The trial courts decision to dismiss or vacate a strike prior is reviewable for an abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) This review is furthered by the requirement the court state the reasons for its action "in an order entered upon the minutes." (§ 1385, subd. (a).) " The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement." (Romero, supra, 13 Cal.4th at p. 531.) Therefore, in summary, " ... in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, ... 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 schemes 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth." (People v. Williams (1998) 17 Cal.4th 148, 161, 948 P.2d 429 (Williams).)
Here the trial court, while acknowledging Mitchell is "a violent recidivist felon," struck all but one of his strike priors in light of "the trivial nature of the current offense." The court provided no further explanation for its decision, either on the record or in an order recorded in the minutes. (See Williams, supra, 17 Cal.4th at p. 162 [granting of Romero motion unaccompanied by reasons set forth in minute order is "ineffective"].)
Specifically, it appears the court gave no consideration to the nature of Mitchells prior convictions, or to the particulars of his background, character, and prospects. (People v. Thornton (1999) 73 Cal.App.4th 42, 49; People v. McGlothin (1998) 67 Cal.App.4th 468, 477; People v. Smith (1996) 50 Cal.App.4th 1194, 1200.) They provide little support for the courts decision.
Mitchell was 48 years old when he committed the present offense. His criminal history as an adult began in 1974, at age 20, when he was convicted of assault and battery in Florida. This was followed by a 1980 Florida conviction for the dangerous display of a firearm, and two more convictions later that same year, also in Florida, for assault and battery and possession of a short-barreled shotgun. The latter conviction caused him to be sentenced to state prison for three years.
In 1984, Mitchell was convicted in San Francisco of the eight violent or serious felonies set out above, and sentenced to ten years in prison. He was returned to custody in 1989 for a parole violation.
In 1990, as noted above, Mitchell was convicted in Tulare County of grand theft and sentenced to three years in prison. He was returned to custody about 18 months later following his convictions for the unlawful possession of a drug pipe (Health & Saf. Code, § 11364) and for misidentifying himself to a police officer (§ 148.9), both misdemeanors.
In 1992, as noted, Mitchell was convicted in Tulare County of robbery (§ 211) and found to have personally used a deadly or dangerous weapon in the commission of the offense (& sect; 12022, subd. (b)) He was returned to custody seven times between 1998 and 2001 for parole violations, one of which followed his convictions in 2000 for being under the influence of a controlled substance (Health & Saf. Code, § 11550) and possession of a drug pipe (Health & Saf. Code, § 11364), both misdemeanors. His last parole violation occurred in July of 2001, some eight months before he committed the present offense. According to the probation officers report, Mitchell had a crack pipe with him when he was arrested at the Food-4-Less store.
Thus it seems that in the 22 years preceding his commission of the present offense, Mitchell has been unable to remain out of custody for more than a few months at a time. This is not the picture of someone who ought to be deemed to be outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th at pp. 163-164.)
As for Mitchells claim, and the trial courts statement, that a 25-to-life sentence under the three strikes law would be so grossly disproportionate to his current offense as to constitute cruel and unusual punishment, we observe that the decision upon which he relies has been reversed. (Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, U.S. , 123 S. Ct. 1166, 1176 (Andrade) [reversing Andrade v. Attorney General of the State of California (9th Cir. 2001) 270 F.3d 743]; see also Ewing v. California (2003) 155 L. Ed. 2d 108, U.S. , 123 S. Ct. 1179 (Ewing).) Likewise, Brown v. Mayle (9th Cir. 2002) 283 F.3d 1019, another decision upon which Mitchell relies, has been vacated. (Mayle v. Brown (2003) 155 L. Ed. 2d 220, U.S. , 123 S. Ct. 1509.)
Further, as the court explained in Ewing, the question here is not simply whether a three strikes sentence is "grossly disproportionate" to the defendants current offense; the proportionality review also properly takes into account the defendants history of felony recidivism. (Ewing, supra, 123 S. Ct. at pp. 1189-1190.) "Any other approach," the court said, "would fail to accord proper deference to the policy judgments that find expression in the legislatures choice of sanctions." (Id. at p. 1190.) The defendants in Andrade and Ewing, like Mitchell, were both convicted of petty theft with a prior theft offense; neither had as serious or lengthy a criminal record as does Mitchell. (Andrade, supra, 123 S. Ct. at pp. 1170-1171 [three prior convictions for first degree burglary]; Ewing, supra, 123 S. Ct. at p. 1184 [three burglaries and a robbery].)
We conclude the trial court abused its discretion by dismissing, for the reasons stated, all but one of Mitchells strike priors. (See Williams, supra, 17 Cal.4th at p. 164, fn. 7 [court may reach same conclusion only if it is supported by additional or different information]. )
DISPOSITION
The judgment is vacated and the matter is remanded to the trial court for further proceedings. Inasmuch as Mitchell entered his no contest plea in reliance on the courts proposal to dismiss all but one of his strike priors, he must be afforded the opportunity to withdraw his plea. (Williams, supra, 17 Cal.4th at p. 164.)