Opinion
NOT TO BE PUBLISHED
Received for posting 7/14/08
The County of Riverside Super. Ct. No. RIF114722
OPINION
GAUT, Acting P. J.
The court has read and considered the petition, the response, and the record in this proceeding and has concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in resolving this matter. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another groundin Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)
As a preliminary matter, we reject defendant’s contention that the People have forfeited any right to raise objections to the grant of probation because it failed to raise them at the time of sentencing. The sentencing court is not required to issue a tentative decision before the sentencing hearing, but the forfeiture rule applies only if the sentencing court describes the sentence it intends to impose and reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentence. (People v. Gonzalez (2003) 31 Cal.4th 745, 752.) In this case, the sentencing court was conducting a Romero hearing and there was no indication that probation was being requested or being considered and the court granted probation before the prosecution could be heard on the propriety of such a grant. After the court granted probation, the People did object and raised an issue regarding a registration requirement. While the court added registration as a condition of probation, there is no indication it would have considered an objection to probation at that stage.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant is presumptively ineligible for probation because of his prior felony convictions so that the court was required to find this is an unusual circumstance in order to grant probation. The fact that the court struck the priors for purposes of the “Three Strikes” law does not mean that defendant is eligible for probation. (See People v. Dorsch (1992) 3 Cal.App.4th 1346 [prior felony convictions render a defendant presumptively ineligible for probation even if not pleaded and proved].)
While the sentencing court stated ample reasons for striking the priors, different factors apply to the determination to grant probation, it was required to state reasons for doing so. (California Rules of Court, rule 4.406.)
Defendant argues in his response to the petition that the court did not abuse its discretion in granting probation, arguing that the same factors that supported the decision to strike the priors also supports a finding that this is an unusual case to overcome his presumptive ineligibility. Although the sentencing court might eventually reach the same conclusion, it is required to hear the People’s objections and, if it again decides to grant probation, to state its reasons for doing so.
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order granting defendant probation, to rehear the matter, giving the People an opportunity to state its objections, and to state its reasons if it determines that defendant should be placed on probation despite the fact he is presumptively ineligible.
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.
We concur: HOLLENHORST, J., KING, J.