Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF144536 Byron K. McMillan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Rod Pacheco, District Attorney, and Rebecca Marie Madrid, Deputy District Attorney, for Plaintiff and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Respondent.
McKINSTER, J.
The Riverside County District Attorney, representing the People of the State of California, appeals after defendant and respondent John Terry Moore entered into a plea agreement in the Superior Court and was granted probation. The People raise issues purporting to challenge the lawfulness of the sentence and the disposition (dismissal) of one count, but defendant argues that the essential effect of each point is to render him ineligible for probation. The People are prohibited under Penal Code section 1238 subdivision (d), from appealing an order granting probation. Because some of the issues raised amount to an attempt to appeal the probation order, the appeal as to those issues is prohibited and must be dismissed. However, as to the dismissal of one misdemeanor count, the People are correct that the trial court erred in failing to state its reasons for dismissal in the record. Accordingly, the judgment must be reversed, with directions.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Riverside County Sheriff’s Department Officers Richard Birmingham and John Negrete were on patrol on the evening of July 5, 2008. They saw defendant driving a white pickup truck out of the parking lot of a market in Rubidoux, California. As defendant drove out of the parking lot, he drove his truck on the dirt shoulder of the road. Defendant narrowly missed striking two pedestrians walking along the shoulder, and stopped his truck just short of hitting a telephone pole.
Believing that defendant was under the influence of drugs or alcohol, the officers stopped their patrol car alongside defendant’s truck. As the officers stopped, defendant got out of the truck. Officer Birmingham saw defendant make a throwing motion with his arm, and then heard what sounded like a metallic object hitting the ground. Believing that defendant had tossed away a gun, the officers ordered defendant to lie on the ground. Defendant did not immediately comply, so Officers Negrete and Birmingham forced defendant to the ground. Defendant resisted putting his hands behind his back; the officers forced his hands behind his back to handcuff him.
The officers asked defendant about the object he had thrown away. Defendant stated that he had thrown a pipe, but indicated that he had another one in his pocket. Officer Negrete searched defendant and found a glass pipe, of a kind commonly used to smoke methamphetamine, as well as a digital scale. The officers searched the area but were unable to locate the pipe defendant had thrown.
Officer Negrete said that he had also seen a blue object fly from defendant’s hand and strike the lumber rack on the pickup truck. On the ground alongside the truck, the officers found a blue plastic baggie containing a white crystalline substance. The substance appeared to be methamphetamine. At the sheriff’s station, another officer used defendant’s scale to weigh the baggie; the packaging and contents weighed three grams. A chemical test identified the substance as methamphetamine. The quantity of methamphetamine found was sufficient to put into a pipe and smoke.
Defendant was charged by an amended information with one count of violation of Health and Safety Code section 11379, subdivision (a), felony transportation of methamphetamine (count 1); a misdemeanor violation of Health and Safety Code section 11364, possession of drug paraphernalia (count 2); and a misdemeanor resisting arrest charge (Pen. Code, § 148, subd. (a)) (count 3). Attached to count 1 was an allegation that defendant had been convicted of a prior felony (i.e., a violation of Health & Saf. Code, § 11378) in 2002, within the meaning of Health and Safety Code section 11370.2. The amended information also alleged two prior conviction enhancement allegations under Penal Code section 667.5, subdivision (b). That is, defendant was convicted of intent to manufacture methamphetamine in 1998 (Health & Saf. Code, § 11383), and did not remain free of prison custody for five years; and he was convicted in 2002 of possession of a controlled substance for sale (Health & Saf. Code, § 11378), and did not remain free from prison custody for five years.
Defendant initially pleaded not guilty to all charges and allegations. During the discovery phase of the proceedings, in August 2008, defendant requested discovery of the officers’ personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) Defendant disputed the officers’ version of events. He claimed that the officers had never ordered him to the ground, and he had not refused to comply with such an order. Instead, he was tackled with no warning. Defendant tried to keep his hands visible to the officers, but the officers began beating him up. When the officers realized that bystanders were looking on, they began yelling at defendant to, “‘stop resisting!’” Defendant suffered injuries to his face and body, and he was taken on his arrest to the hospital for treatment. He received further treatment while in custody. Defense counsel therefore sought any evidence of past instances of excessive force, racism, or false statements in police reports. The court denied the Pitchess motion.
Defendant’s trial date was continued several times, sometimes at the request of the defense, and sometimes at the request of the People. On January 12, 2009, all parties announced ready for trial. The amended information was filed the same day.
The next day, the date set for trial, the parties conducted an informal discussion about trial issues and disposition of the case. Apparently, an agreement to a disposition was reached between defendant and the court, and entered over the prosecutor’s objection. In essence, defendant agreed to plead guilty to counts 1 and 2, and to be granted probation for drug diversion pursuant to the Substance Abuse and Crime Prevention Act of 2000 (hereafter, Proposition 36, codified at Pen. Code, §§ 1210, 1210.1, and 3063.1, and division 10.8 [section 11999.4 et seq.] of the Health & Saf. Code). The court would dismiss the misdemeanor resisting arrest charge in count 3. Defendant also admitted the enhancement allegation of Health and Safety Code section 11370.2 with respect to count 1, and admitted the prior felony conviction enhancement allegations. Defendant signed and initialed the requisite paragraphs on his change of plea form. He expressly agreed to plead guilty to count 2, a violation of Health and Safety Code section 11364, to count 1, “HS 11379 for personal use + 2 prison priors + 111370.2 prior.”
The prosecutor objected that, “[m]y understanding is pursuant to [Penal Code section] 1385 the Court does not have the discretion to dismiss the count in exchange for a plea, which I believe is the case that’s happening today. The defendant is ineligible for Prop. 36 pursuant to the charges alleged on the Information. He is—in addition, the People’s belief is that he is ineligible for Prop. 36 regardless because of the [Health and Safety Code section] 11370.2 allegation, which states that the Court shall impose a three-year commitment in state prison pursuant to any [Health and Safety Code sections] 11378 or 11379 conviction. [¶] In addition,... I don’t believe Penal Code [section] 1210 gives the Court authority to dismiss any count in order to make him probation eligible or Prop. 36 eligible. But for the Court dismissing the [Penal Code section] 148 [charge], [defendant] would not be probation eligible based on the enhancements that were alleged on the Information. I believe he still is not eligible based on the [Health and Safety Code section] 11370.2 enhancement.”
Defense counsel argued that the trial court had the power under Penal Code section 1385 to dismiss any count in the furtherance of justice, but that the court must state its reasons on the record. Counsel urged the court to make explicit the reasons for dismissing the resisting arrest charge. “And if the problem is the [Health and Safety Code section] 11370.2 prior, the Court also has the power to strike or dismiss enhancements and can stay the punishment on those enhancements. Under [Penal Code section] 1210, [Health and Safety Code section] 11379 [i.e., transporting controlled substances] for personal use is Prop. 36 eligible. It was my understanding that when it’s [a Health and Safety Code section] 11379 [charge] for personal use, the [Health and Safety Code section] 11370.2 prior... is not applied.”
The court then proceeded to dismiss count 3 “in the interest of justice,” and ordered that the “defendant[ is] referred to probation for Prop. 36.” Defense counsel also expressly asked that, “according to [section] 1385, the minutes actually have to be clear as to the reasons for the dismissal, so I will ask that the reasons for the dismissal be included in the minutes.” The court granted this request. The minute order reflected, however, only that count 3 was dismissed, “in the interest of justice.”
Defendant waived a probation referral and requested immediate sentencing. The court suspended proceedings and granted 36 months of probation on conditions recited in the minutes.
The People filed a notice of appeal “from the order... dismissing the count three of the information... in order to make the [defendant] eligible for drug treatment probation pursuant to Penal Code section 1210 subdivision (a).”
ANALYSIS
I. Grounds for a People’s Appeal
The prosecution in a criminal case has no right to appeal except as provided by statute. (People v. Alice (2007) 41 Cal.4th 668, 680 (Alice).) Here, the notice of appeal indicated that the People appealed pursuant to section 1238, subdivisions (a)(1) and (a)(8) (an order setting aside any portion of an information, and an order terminating or dismissing all or a portion of an action). In the opening brief, the People also now purport to appeal pursuant to section 1238, subdivision (a)(5), from “[a]n order made after judgment, affecting the substantial rights of the people,” and subdivision (a)(10), from “[t]he imposition of an unlawful sentence....”
Section 1238, subdivision (a), provides in relevant part: “(a) An appeal may be taken by the people from any of the following: [¶] (1) An order setting aside all or any portion of the indictment, information, or complaint. [¶]... [¶] (8) An order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.”
Section 1238, subdivision (d), provides, however, that, “[n]othing contained in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation.”
Legal authority requires adherence to the strict limits of the statute, even if “the People may thereby suffer a wrong without a remedy.” (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 499; accord, People v. Chacon (2007) 40 Cal.4th 558, 564.) The adherence to the “strict limits” of the appeal statute prohibits reliance on grounds not provided in the statute; courts are precluded from expanding the People’s right of appeal into areas other than those clearly specified by the Legislature. (People v. Benavides (2002) 99 Cal.App.4th 100, 103-104.) Thus, although the People now purport to rely on statutory grounds beyond those stated in the notice of appeal, the new grounds cited are within the literal language of the statute.
Section 1238, subdivision (d), however, expressly prohibits an appeal from an order granting probation. Review of an order is permitted by writ, within 60 days. Here, the People took no writ within 60 days. “[T]he People may not explicitly appeal from, and seek reversal of, any such order [i.e., granting probation]. Further,... subdivision (d) also prohibits appeals that, in substance, attack a probation order, even if the order explicitly appealed from may be characterized as falling within one of the authorizing provisions of subdivision (a). Thus, if the People seek, in substance, reversal of the probation order, the appeal is barred by subdivision (d) however they may attempt to label the order....” (People v. Douglas (1999) 20 Cal.4th 85, 93; accord, Alice, supra, 41 Cal.4th at p. 682.) The issue we face is whether, despite the characterization of the notice of appeal and the People’s opening brief, the People’s claims are in substance an appeal challenging the grant of probation.
This problem presents questions of statutory construction, and the application of legal principles to undisputed facts. These are issues of law which we review de novo. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1288; People v. Hassan (2008) 168 Cal.App.4th 1306, 1313.)
II. The Alleged Failure to Order a Probation Report Is in Effect an Attack on the Grant of Probation, and Is Prohibited
The People first argue that the trial court erred in failing to refer the matter for a probation report. The court’s minutes indicate that defendant waived a probation report and requested immediate sentencing. The People concede that they did not object on the record. The People now contend, however, that the trial court was obligated by section 1203 to order such a report.
Section 1203, subdivision (b)(1), provides in part that if a defendant is eligible for probation, the trial court “shall immediately” refer the matter to the probation department for an investigation and report on the factors in aggravation and mitigation of the punishment. Section 1203, subdivision (b)(3), provides that, if an application for probation has been made, the trial court “shall consider any report of the probation officer... and shall make a statement that it has considered the [probation] report....” Section 1203, subdivision (b)(4), provides that the preparation and consideration of a probation report may only be waived “by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court....”
Citing People v. Dobbins (2005) 127 Cal.App.4th 176, the People argue that the People’s failure to request a probation report does not waive its right to appeal the trial court’s failure to order a report. (Id. at p. 182.) Dobbins is inapposite. In Dobbins, the defendant had been granted probation and a report had been prepared at that time. Some months later, he was found in violation of his probation. The trial court imposed a prison term without ordering a current report and without considering the defendant’s possible eligibility to be reinstated on probation. The defendant had not requested an updated report, but the failure to request one was held not to waive the issue on appeal. (Id. at pp. 181-182.) To hold otherwise would have been to countenance a waiver by means not provided in section 1203, subdivision (b)(4). In Dobbins, there had never been any express waiver of a probation report by any party, and indeed a probation report had been ordered and prepared when the defendant was initially admitted to probation.
People v. Rojas (1962) 57 Cal.2d 676, another case cited by the People, is likewise inapposite. There, a codefendant had applied for probation, but the trial court never considered the application. Rather, the minutes simply denied probation without a request for a probation report. (Id. at pp. 680-681.) As in Dobbins, there had never been an express waiver of a probation report by any party.
Here, by contrast, the minutes reflect defendant’s express waiver of a probation report and request for immediate sentencing. The People raised no objection, but acquiesced in the immediate sentencing. Arguably, this substantially complied with the open court stipulation requirements of section 1203, subdivision (b)(4).
Although the People here attempt to characterize the trial court’s failure to order a probation report as an unlawful sentencing procedure, or perhaps a post judgment order affecting the substantial rights of the People, the argument in the opening brief betrays that the essence of the claim is an attack on the grant of probation. The People argue that probation is a grant of clemency granted to a deserving defendant, but that defendant here is undeserving, because he had three felony and two misdemeanor convictions in 10 years, and because he was a repeat drug offender. Further indicative of the People’s true purpose in raising the issue, they argue that a probation report “in this case would have given the trial court insight into whether [defendant] was truly amenable to treatment pursuant to Proposition 36.” In other words, the entire thrust of the People’s complaint is that defendant was (undeservingly) granted probation, and that ordering a probation report might have convinced the trial court not to grant probation. Additionally, the People argue their “interests in obtaining a fair disposition and protecting society were severely compromised,” because “[t]he determination to grant or deny probation is one in which the state has a substantial interest.” This is simply a naked acknowledgment that this issue is an attack on the grant of probation. Even though the People have attempted to characterize the issue as coming within section 1238, subdivision (a)(5) (i.e., an order made after judgment, affecting the substantial rights of the people), the only “substantial right of the people” identified is the very decision to grant probation, which is prohibited as a ground for a People’s appeal. Because the alleged “unlawful sentence” procedure in failing to order a probation report is in essence a prohibited attack on the order granting probation, the appeal on that ground will not lie.
III. The Health and Safety Code Section 11370.2, Subdivision (b), Enhancement Must Be Stricken as a Matter of Law
Next, the People urge that defendant’s sentence was unlawful because, although defendant admitted the Health and Safety Code section 11370.2, subdivision (b), enhancement allegation charged on count 1, the trial court failed either to impose the mandatory three-year sentence on the enhancement, or to strike the allegation.
Health and Safety Code section 11370.2, subdivision (b), provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
The People argue that when defendant pleaded guilty to count 1, transportation of methamphetamine, he also admitted having suffered a prior conviction of Health and Safety Code section 11378. The People complain that the trial court did not impose the mandatory three-year enhancement sentence, because the court was desirous of granting defendant probation under Proposition 36. The People contend that to neither impose nor strike an enhancement is an unauthorized sentence. (Citing People v. Bradley (1998) 64 Cal.App.4th 386, 390 (Bradley).)
The People properly point out that the failure to impose or strike an enhancement is subject to correction on appeal. (Bradley, supra, 64 Cal.App.4th at p. 391; People v. Irvin (1991) 230 Cal.App.3d 180, 190.) In this case, the Health and Safety Code section 11370.2, subdivision (b), enhancement must be stricken. As noted, if a defendant has a requisite prior conviction, then the three-year enhancement term must be imposed when the defendant suffers a new conviction of certain offenses. Defendant had a prior conviction of Health and Safety Code section 11378, which made him potentially eligible for the enhancement. The enhancement only comes into play, however, upon a new conviction of Health and Safety Code sections 11378.5, 11379.5, 11379.6, 11380.5, or 11383. Here, defendant’s new conviction was not one of the enumerated qualifying statutes. He pleaded guilty in count 1 to a violation of Health and Safety Code section 11379, as charged in the amended information. The enhancement provision was inapplicable as a matter of law, despite defendant’s admission of it. We will therefore order that the enhancement under Health and Safety Code section 11370.2, subdivision (b), be stricken.
The charging document alleged the enhancement under Health and Safety Code section 11370.2, subdivision (b). The People probably meant to allege enhancement under Health and Safety Code section 11370.2, subdivision (c).
IV. The Alleged Failure to Find that the Transportation Was for Personal Use Is Incorrect, and Constitutes a Prohibited Attack on the Grant of Probation
Section 1210, subdivision (a), provides in relevant part that, “[t]he term ‘nonviolent drug possession offense’ means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance.... The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance....”
The People complain that the trial court failed to make an express finding that defendant’s transportation of methamphetamine was for personal use, and therefore, that defendant is ineligible for Proposition 36 diversion.
We reject this contention on two separate grounds. First, the contention is factually incorrect, as the finding of personal use appears on the face of the record in the plea agreement itself, and is supported by substantial evidence. Second, the contention is in substance an attack on the grant of probation, i.e., seeks reversal of the grant of probation.
The defendant bears the burden of establishing whether the offense was for “personal use.” (People v. Barasa (2002) 103 Cal.App.4th 287, 296.) The trial court must make a finding based upon the preponderance of the evidence. (People v. Dove (2004) 124 Cal.App.4th 1, 11 [4th Dist, Div 2].) Such finding a may be made by the trial court, by the preponderance of the evidence standard, without requiring a jury determination beyond a reasonable doubt (id. at pp. 4, 11) without running afoul of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] or Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].
Although the trial court did not expressly make its own separate finding on the issue, the plea form signed by defendant and approved and accepted by the court expressly provided that defendant was pleading guilty to transportation “for personal use.” There was sufficient evidence in the record to support such a finding. The officers first noticed defendant when he drove erratically, demonstrating that he was under the influence of drugs from personal use. Defendant had two pipes in his possession, one of which he was able to throw away before the officers approached him, further indicating his personal use of the drugs he possessed. (Cf. People v. Harris (2009) 171 Cal.App.4th 1488, 1493 [person possessing cocaine base for personal use will have items such as a glass pipe for smoking].) The weight of the methamphetamine with packaging was three grams. There was no evidence indicating the net weight of the methamphetamine substance itself. Officer Birmingham testified that the amount of drugs was sufficient to put into a pipe for smoking, i.e., enough for personal use. Nothing was found in defendant’s vehicle, and no plastic baggies, indicative of possession for sale, were found. Defendant did have a digital scale, but he told the officers that he wanted to trade it for more drugs. The evidence was sufficient to support defendant’s carrying of the burden to show that his transportation of the methamphetamine was for personal use.
In any event, the claim is barred by section 1238, subdivision (d). The People’s argument is premised on People v. Dove, supra, 124 Cal.App.4th 1, in which this court held that the refusal of a jury to find that possession of a controlled substance was for sale did not preclude the trial court from making its own finding, by a preponderance of the evidence, that the possession was not for personal use. Treatment pursuant to Proposition 36 is mandatory unless the defendant is otherwise ineligible; conversely, if a defendant is ineligible, a prison sentence is equally mandatory. (Dove, at p. 10.) The People argue that, because the trial court assertedly failed to make a personal use finding (to the contrary, the “personal use” designation appears on the face of the record), “[defendant’s] sentence granting him probation and drug treatment pursuant to Proposition 36 is unlawful.” (Italics added.) Despite the People’s attempt to characterize this as a postjudgment order affecting the People’s substantial rights, or an unlawful sentence, the language of their argument again demonstrates that the People’s real objection is to the grant of probation. Accordingly, the appeal on this ground is barred.
V. The Trial Court Improperly Failed to State Its Reasons for Dismissing Count 3
Finally, the People contend that the dismissal of count 3, resisting arrest, was void because the trial court failed to state any reasons in the minutes. The People argue that this issue is appealable as an order made after judgment affecting the People’s substantial rights (§ 1238, subd. (a)(5)), an order dismissing a portion of an action (§ 1238, subd. (a)(8)), or the imposition of an unlawful sentence (§ 1238, subd. (a)(10)). This contention has merit.
In People v. Douglas, supra, 20 Cal.4th 85, the California Supreme Court considered a case in which the defendant was granted probation, and thereafter the trial court determined to reduce one of the charges to a misdemeanor under section 17, subdivision (b). (Id. at p. 89.) The People’s appeal challenged the reduction of the offense to a misdemeanor, and not the grant of probation. There had been no objection to the grant of probation below, and the appeal did not seek reversal of the probation order. Douglas was not a Proposition 36 case, in which diversion is mandatory, if the defendant is eligible, and state prison is mandatory, if not. The issue appealed (deeming the offense a misdemeanor) was not argued to preclude a grant of probation.
Similarly, in Alice, supra, 41 Cal.4th 668, the California Supreme Court held it “[b]eyond question” (id. at p. 680) that the People did have the right to appeal the dismissal of a charge of driving under the influence, under section 1238, subdivision (a)(1), even though the dismissal underlay the trial court’s grant of diversion under Proposition 36. The People had succeeded in obtaining a reversal of the order dismissing the driving-under-the-influence charge, and the Supreme Court remanded for further proceedings on that charge. (Alice, at pp. 683-684.)
Here, the People object that the trial court in dismissing count 3 in the “interest of justice,” pursuant to section 1385, subdivision (a), failed to include a statement of its reasons for so doing in the minutes. Even though defense counsel twice explicitly reminded the court of its duty, and specifically requested that the court’s reasons be stated in the written minutes, the court’s minutes reflect merely that the court dismissed count 3 “in the interest of justice,” with no further elaboration. The requirement that the reasons be written upon the minutes promotes judicial accountability and ensures that judicial power is not being used in a corrupt or improper manner. (People v. Orin (1975) 13 Cal.3d 937, 944, 947.) The failure to comply with the requirement is fatal and may not be deemed harmless error. (People v. Bonetta (2009) 46 Cal.4th 143, 150-151.) Thus, the order dismissing count 3 was “ineffective, [and] the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason. In such cases, the court must also have the power to take action such as reconvening the sentencing hearing or allowing a defendant to withdraw a plea entered on the understanding a count or an enhancement would be dismissed. [Citations.]” (Id. at p. 153.)
We note that section 1385, subdivision (a), authorizes a trial court to dismiss an action or a portion of an action “in furtherance of justice.” The charge against defendant in count 3, resisting arrest, is a misdemeanor not related to the use of drugs, a conviction of which would render him ineligible for Proposition 36 treatment. (§ 1210.1, subd. (b)(2).) Even if the trial court dismisses the charge for the purpose of rendering defendant eligible for Proposition 36 diversion, such an exercise of discretion in the interests of justice is authorized by section 1385. (People v. Orabuena (2004) 116 Cal.App.4th 84, 92, 95-96, 99.) There could be additional reasons for dismissing the charge; although defendant was denied access to the officers’ personnel records, his Pitchess motion indicated that defendant was vigorously pursuing a viable defense to the resisting arrest charge. That is, he claimed the officers had tackled him without warning and started beating him up. Rather than resisting the officers, he was attempting to keep his hands visible to them. Defendant’s story was supported by the objectively observable injuries he sustained to his face and body. Indeed, he was initially transported to Riverside Community Hospital for treatment, a fact that had been omitted from the police report.
DISPOSITION
The judgments of conviction are reversed, and the matter is remanded to the trial court for further proceedings. In the event that, pursuant to further proceedings, defendant is found to be factually ineligible for treatment under Proposition 36 (see fn. 3), or the sentence imposed under the plea bargain is materially altered, defendant must be afforded the opportunity to withdraw his plea. (See People v. Bonetta, supra, 46 Cal.4th at p. 153.)
We concur, HOLLENHORST Acting P. J.,MILLER, J.
Health and Safety Code section 11370.2, subdivision (c), provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
Health and Safety Code section 11370.2, subdivision (d), provides for a pleading and proof requirement with respect to these enhancements.
The People took the position below that admission of a Health and Safety Code section 11370.2 enhancement in itself rendered defendant ineligible for Proposition 36 probation.
The People also point out that a similar issue, failure to impose or strike, exists with respect to defendant’s prior prison term enhancements under section 667.5, subdivision (b). The trial court failed to either impose or strike these enhancements.
Pursuant to Bradley, supra, 64 Cal.App.4th 386, such enhancements are subject to the exercise of the trial court’s discretion to strike them under section 1385, subdivision (a). The reasons for the exercise of discretion must appear on the minutes. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531-532.) We therefore will remand the matter with directions to the trial court to either impose or strike the enhancements pursuant to section 1385, subdivision (a), and to place its reasons on the minutes.
Under In re Varnell (2003) 30 Cal.4th 1132, however, the trial court may not employ section 1385 to disregard “sentencing factors” that are not themselves required to be a charge or allegation in an indictment or information. Section 1210.1 provides an alternative scheme of sentencing for those convicted of nonviolent drug possession offenses. It also excludes certain classes of such defendants from the benefits of the alternative sentencing scheme, however, including “(1) Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person.” (§ 1210.1, subd. (a)(1).) Although the language parallels and refers to the enhancements under section 667.5, there is no pleading and proof requirement of such an enhancement; the disqualification exists as a substantive fact, independently of any pleading or proof of an enhancement. (In re Varnell, at pp. 1138, 1139.)