Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super.Ct.No. SWF013195, Rodney L. Walker, Judge.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant pleaded guilty to two counts of robbery (Pen. Code, § 211) and admitted that in both counts a principal was armed with a handgun (§ 12022, subd. (a)(1)). Defendant also admitted that he had suffered one prior serious felony conviction (§ 667, subd. (a)) and three prior strike convictions (§§ 667, subds. (c)-(e)(2)(A), 1170.12, subd. (c)(2)(A)). After the trial court denied defendant’s motion to dismiss his prior strike convictions, defendant was sentenced to a total term of 27 years to life. On appeal, defendant contends the trial court abused its discretion in not dismissing his prior strike convictions. Because the record is clear that the trial court misunderstood its sentencing discretion, we will remand the matter for resentencing.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation officer’s report.
On August 15, 2005, codefendants Delbert Smith and Michael Bailey robbed a California Coast Credit Union branch in Temecula of approximately $5,500 and fled in a Honda. Defendant served as the driver of the get-away car.
Codefendants Smith and Bailey were also charged in this case but are not parties to this appeal.
Defendant was charged with two counts of robbery. It was also alleged that defendant participated in the robberies knowing that another principal was armed with a firearm. The information further alleged that defendant had previously been convicted of a prior serious felony, to wit, an April 1993 robbery, and that defendant had sustained three prior strike convictions, to wit, the April 1993 robbery and two December 1998 robberies.
On January 9, 2007, in a plea to the court, defendant pled to the sheet and admitted the prior enhancement allegations.
As pointed out by the People, there is confusion in the record as to the number of strikes admitted by defendant. There is no actual plea agreement included in the clerk’s transcript. The amended information alleges three strikes. The minute order of the plea hearing simply indicates defendant admitted the “strike.” The discussion contained in the reporter’s transcript reflects the trial court asking defendant whether he was admitting to having a serious felony conviction from April 1993 and then asking if defendant was admitting to having two strikes from December 1998.
Defendant subsequently filed a motion to dismiss his prior strike convictions, and the People filed their opposition. Following a hearing in which it essentially misunderstood its discretion, the trial court denied defendant’s motion to dismiss his prior strike convictions. Defendant was thereafter sentenced to a total term of 27 years to life as follows: 25 years to life on count 1, a concurrent term of 25 years to life on count 2, and two 1-year terms for the gun enhancements attached to counts 1 and 2; the five-year term for the prior serious felony conviction (§ 667, subd. (a)) was improperly stayed.
II
DISCUSSION
Defendant contends, and the People correctly concede, that the trial court misunderstood its sentencing discretion to strike the prior strike convictions and that a remand for resentencing is necessary.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), our Supreme Court held that courts have authority to dismiss a prior conviction allegation, pleaded for purposes of sentencing under the three strikes law. (Id. at p. 504.) In ruling whether to dismiss a strike prior the court must consider whether, in light of the nature and circumstances of his present criminal activity and prior serious and/or violent felony convictions, the defendant may be deemed outside the spirit of the three strikes law and should be treated as though he had not committed one or more strike priors. (People v. Williams (1998) 17 Cal.4th 148, 162-163 (Williams).)
In People v. Garcia (1999) 20 Cal.4th 490 (Garcia), our Supreme Court confirmed its holdings in Romero and Williams but added that, “a defendant’s sentence is . . . a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (Garcia, at p. 500.)
The trial court’s decision to dismiss or not to dismiss a prior strike allegation is reviewable on appeal under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-375 (Carmony).) Under this standard, the defendant has the burden of establishing that the trial court’s determination was arbitrary or irrational. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In Carmony, supra, 33 Cal.4th 367, the California Supreme Court explained that “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.” (Id. at p. 378.) In light of this presumption, an abuse of discretion in declining to dismiss a strike occurs only in “limited circumstances.” (Ibid.) For example, where the trial court “was not ‘aware of its discretion’ to dismiss”; “where the court considered impermissible factors in declining to dismiss”; where application of the sentencing norms established by the three strikes law produces an “‘“arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case”; or “where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme,” that is, where the relevant factors “manifestly support striking of a prior conviction and no reasonable minds could differ . . . .” (Ibid.)
Here, both parties agree the record shows that the trial court misunderstood its discretion when ruling on defendant’s Romero motion. After analyzing the entire record, we also agree. Although this record reflects the court’s apparent attempt to correctly apply its discretion regarding the ability to dismiss prior strikes under Romero, we cannot harmonize the court’s lengthy comments as to why it could not exercise such discretion and believed it could not strike some of the strikes but not all of the strikes. Our Supreme Court in Garcia, supra, 20 Cal.4th 490 explained that a trial court is free to consider its discretion to dismiss strikes on a count-by-count basis. (Id. at pp. 503-504.) This ambit clearly includes a trial court’s discretion to strike one or more prior strikes to achieve the correct sentencing outcome. The trial court here incorrectly believed that it did not have the authority to reach a determinate sentence without striking all of the strikes. The record indicates that the court misunderstood the impact of striking two of defendant’s three prior strikes. The court also erroneously believed that it was required to strike all or none of the strikes, rather than one or two.
On this record, we cannot find the court knowingly exercised its discretion as directed by the decisions in Williams, Garcia, and Romero. By misunderstanding and failing to properly exercise the scope of its discretion to dismiss strikes, the court prejudicially abused its discretion. We therefore remand the matter for resentencing.
For guidance of the trial court on remand, we remind the court, as pointed out by the People, that the five-year enhancement for the prior felony conviction within the meaning of section 667, subdivision (a)(1) must be imposed. Courts lack discretion to strike or stay allegations of prior serious felony conviction under section 667, subdivision (a)(1). (People v. Samuels (1996) 42 Cal.App.4th 1022, 1029; People v. Ramirez (1995) 33 Cal.App.4th 559, 569-572; § 1385, subd. (b).) Accordingly, the five-year enhancement must be considered at the time of resentencing.
We also point out that the oral proceedings are unclear as to whether defendant admitted two or three prior strike convictions. Perhaps the trial court assumed that admitting a prior conviction for purposes of the five-year enhancement under section 667, subdivision (a) was sufficient for purposes of it supporting a strike. At the sentencing hearing, references were made to two and three strikes interchangeably without resolution. On remand, it is imperative for the court and the parties to determine the number of applicable strikes admitted by defendant and the proper sentence exposure. Presumably, since defendant pled to the sheet, and three prior strike allegations were alleged, defendant admitted to having sustained three prior strikes. However, out of an excess of caution and for the purposes of sentencing, this issue needs to be resolved with clarity.
III
DISPOSITION
The trial court is ordered to vacate the sentence and reconsider it in accordance with this opinion.
We concur: McKINSTER Acting P.J., KING J.
Affirmed in part and reversed in part with directions.