Opinion
E073497
12-05-2019
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; CRISTINA ESTRADA ESQUIVEL, Real Party in Interest.
Michael A. Hestrin, District Attorney, Natalie M. Lough, Deputy District Attorney, for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1601195) OPINION ORIGINAL PROCEEDING; petition for writ of mandate. Becky Dugan, Judge. Petition granted. Michael A. Hestrin, District Attorney, Natalie M. Lough, Deputy District Attorney, for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
Petitioner the People of the State of California (the People) challenges the order of respondent the Superior Court of Riverside County (the trial court) granting probation to real party in interest Cristina Estrada Esquivel (Esquivel) and suspending her sentence. Having read and considered the petition, as well as the record, and having invited respondent and real party in interest to file a response (which they have declined to do), we conclude the petition should be granted. Our order requesting an informal response notified respondent and real party in interest that a peremptory writ might issue unless they showed good cause to the contrary. All parties received "due notice" (Code Civ. Proc., § 1088) and "it appears that the petition . . . on file adequately address[es] the issues . . . that no factual dispute exists, and that the additional briefing that would follow issuance of an alternative writ is unnecessary to disposition of the petition." (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) In reliance on these rules, and because we agree that the issue posed by the petition is an important one warranting speedy resolution, we now resolve the petition by way of a formal written opinion granting relief. (Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 414-417 [such procedure creates a " 'cause' " and the resulting opinion constitutes the law of the case.].)
Because the People have established that the trial court imposed an unlawful sentence by suspending Esquivel's sentence and granting probation, we grant the petition and issue the writ, directing the trial court to resentence Esquivel in conformance with Penal Code sections 667, subdivision (c)(2), and 1170.12, subdivision (a)(2).
STATEMENT OF FACTS AND PROCEDURE
The People charged Esquivel in a complaint with the following: count 1—driving under the influence of an alcoholic beverage after having violated Vehicle Code section 23153 (Veh. Code, § 23550.5, subd. (a)); count 2—driving under the influence with a blood-alcohol content greater than 0.08 percent (Veh. Code, § 23152, subd. (b)); and included allegations that Esquivel had been convicted of three prior violations of Vehicle Code sections 23152, subdivision (a), 23153 subdivision (b), and 23550.5, as well as one serious or violent felony (strike) within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), and 1170.12, subd. (c)(1)).
The strike prior involved a 2011 conviction for driving under the influence and with personal infliction of great bodily injury (Veh. Code, § 23153; Pen. Code, § 12022.7).
On June 28, 2019, Esquivel pled guilty to all charges and admitted her prior convictions, including the prior strike conviction. Over the People's objection, the trial court imposed and suspended an aggregate six-year prison sentence and granted Esquivel a 60-month term of probation. The court arrived at the six-year sentence by imposing the upper term of three years on each count, doubled for the strike prior, and staying the sentence for Count 2 pursuant to Penal Code section 654.
The People timely filed this petition for writ of mandate.
DISCUSSION
As the People argue, we conclude that the trial court acted in excess of its discretionary authority in suspending the imposition of sentence and granting probation to Esquivel after she admitted a strike prior and without dismissing the strike prior.
Penal Code section 1170.12, subdivision (a), precludes the sentencing court from imposing a suspended sentence and granting a term of probation when a defendant admits a strike prior within the meaning of Penal Code sections 667, subdivisions (c) and (e), and 1192.7, subdivision (c), and/or Penal Code section 1192.7: "[I]f a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to each of the following: [¶] (1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction. [¶] (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense." (Pen. Code, § 1170.12, subd. (a).)
Subdivision (b) of Penal Code section 1170.12 provides in relevant part: "a prior serious and/or violent conviction of a felony shall be defined as: [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." (Pen. Code, § 1170.12, subd. (b).)
The sentencing enhancement for personally inflicting great bodily injury under Penal Code section 12022.7 qualifies as a strike prior pursuant to Penal Code section 1192.7, subdivision (c)(8). That subdivision defines "any felony in which the defendant personally inflicts great bodily injury on any person" as a "serious felony." (People v. Gonzales (1994) 29 Cal.App.4th 1684 [great bodily injury enhancement qualifies as a strike prior]; People v. Guzman (2000) 77 Cal.App.4th 761 [great bodily injury enhancement can be pled and proven with charge of DUI causing injury].)
Here, the trial court imposed a suspended sentence of six years and granted Esquivel 60 months of probation, while acknowledging that Esquivel suffered a qualifying strike prior and without dismissing the strike prior. This sentence was in violation of the law as discussed ante. Because the trial court did not exercise its discretion to dismiss Esquivel's strike prior pursuant to Penal Code section 1385, it did not have discretionary authority pursuant to Penal Code section 1170.12, subdivision (a), to impose a suspended sentence and/or grant probation.
A writ of mandate is proper when used to correct an abuse of discretion or to compel an inferior court to act where there is a mandatory duty to do so. (See Barela v. Superior Court (1981) 30 Cal.3d 244, 248, 255; Code Civ. Proc., § 1085; Cal. Rules of Court, rule 8.490.)
DISPOSITION
Let a peremptory writ of mandate issue, directing the trial court to resentence Esquivel in conformance with Penal Code sections 667, subdivision (c)(2), and 1170.12, subdivision (a)(2). This writ does not preclude the trial court from exercising its discretion under Penal code section 1385, should it choose to do so.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. MENETREZ
J.